Docket No. 40979

STATE OF IDAHO,                                   )    2014 Unpublished Opinion No. 557
       Plaintiff-Respondent,                      )    Filed: June 11, 2014
v.                                                )    Stephen W. Kenyon, Clerk
LUNDE EUGENE JUSTICE,                             )    THIS IS AN UNPUBLISHED
                                                  )    OPINION AND SHALL NOT
       Defendant-Appellant.                       )    BE CITED AS AUTHORITY

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Michael E. Wetherell, District Judge.

       Judgment of conviction and consecutive, unified sentences of life with five years
       determinate, for two counts of propelling bodily fluids or waste on a correctional
       officer and a persistent violator sentencing enhancement, affirmed; order denying
       I.C.R. 35 motion for reduction of sentence, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Jason C. Pintler, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.

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

       Lunde Eugene Justice was convicted of two counts of propelling bodily fluids or waste
on a correctional officer, Idaho Code § 18-915B, and a persistent violator sentencing
enhancement, I.C. § 19-2514. The district court sentenced Justice to consecutive, unified life
terms with five years determinate. Justice filed an Idaho Criminal Rule 35 motion, which the
district court denied. Justice appeals.
       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 Justice’s Rule 35 motion. A
motion for reduction of sentence under I.C.R. 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.
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 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,
including any new information submitted with Justice’s Rule 35 motion, we conclude no abuse
of discretion has been shown. Therefore, Justice’s judgment of conviction and sentence, and the
district court’s order denying Justice’s Rule 35 motion, are affirmed.


Case Information

Case Name: State v. Lunde Eugene Justice

Court: idahoctapp

Year: 2014-06-11