State v. Johnny Sengthavisouk

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket Nos. 40055/40056

STATE OF IDAHO, ) 2013 Unpublished Opinion No. 392
)
Plaintiff-Respondent, ) Filed: March 7, 2013
)
v. ) Stephen W. Kenyon, Clerk
)
JOHNNY SENGTHAVISOUK, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)

Appeal from the District Court of the Sixth Judicial District, State of Idaho,
Bannock County. Hon. Stephen S. Dunn, District Judge.

Judgments of conviction and concurrent, unified sentences of seven years, with
three years determinate, for two counts of delivery of a controlled
substance, affirmed; orders denying Idaho Criminal Rule 35 motions for reduction
of sentence, affirmed.

Sara B. Thomas, State Appellate Public Defender; Jordan E. Taylor, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent.
________________________________________________

Before GUTIERREZ, Chief Judge; LANSING, Judge;
and MELANSON, Judge

PER CURIAM
Johnny Sengthavisouk pled guilty to two counts of delivery of a controlled
substance--one count in docket number 40055 and one count in docket number 40056. Idaho
Code § 37-2732(a)(1)(A). The district court sentenced Sengthavisouk to a concurrent, unified
term of seven years, with three years determinate, for each count. Sengthavisouk subsequently
filed Idaho Criminal Rule 35 motions for a reduction of his sentences. The district court denied
both motions. Sengthavisouk appeals, contending his sentences are excessive and contending the
district court abused its discretion in denying his Rule 35 motions.

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Sentencing is a matter for the trial court’s discretion. Both our standard of review and the
factors to be considered in evaluating the reasonableness of the sentence are well established.
See State v. Hernandez, 121 Idaho 114, 117-18, 822 P.2d 1011, 1014-15 (Ct. App. 1991); State
v. Lopez, 106 Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct. App. 1984); State v. Toohill, 103
Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). When reviewing the length of a sentence,
we consider the defendant’s entire sentence. State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387,
391 (2007). Applying these standards, and having reviewed the record in this case, we cannot
say that the district court abused its discretion.
Next, we review whether the district court erred in denying Sengthavisouk’s Rule 35
motions. A motion for reduction of sentence under Rule 35 is essentially a plea for leniency,
addressed to the sound discretion of the court. State v. Knighton, 143 Idaho 318, 319, 144 P.3d
23, 24 (2006); State v. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App. 1989). In
presenting a Rule 35 motion, the defendant must show that the sentence is excessive in light of
new or additional information subsequently provided to the district court in support of the
motion. State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007). In conducting our
review of the grant or denial of a Rule 35 motion, we consider the entire record and apply the
same criteria used for determining the reasonableness of the original sentence. State v. Forde,
113 Idaho 21, 22, 740 P.2d 63, 64 (Ct. App. 1987); Lopez, 106 Idaho at 449-51, 680 P.2d at
871-73. Upon review of the record, we conclude no abuse of discretion has been shown.
Therefore, Sengthavisouk’s judgments of conviction and sentences, and the district
court’s orders denying Sengthavisouk’s Rule 35 motions, are affirmed.

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