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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 39566

STATE OF IDAHO,

Plaintiff-Respondent,

v.

KEITH DUANE CUNNINGHAM,

Defendant-Appellant.

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2012 Unpublished Opinion No. 759

Filed: December 14, 2012

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED 

OPINION AND SHALL NOT 

BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada

County. Hon. Cheri C. Copsey, District Judge. 

Order denying motion to dismiss withheld judgment, affirmed; order denying 

motion to reconsider, affirmed.

Sara B. Thomas, State Appellate Public Defender; Diane M. Walker, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

GUTIERREZ, Judge

Keith Duane Cunningham appeals from the district court’s orders denying his motion to 

dismiss his withheld judgment and denying his motion to reconsider.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Cunningham pled guilty to statutory rape. In 2002, the district court granted a withheld 

judgment and ordered Cunningham to seven years of probation. In 2011, Cunningham filed a 

motion to dismiss his withheld judgment, specifically noting he had complied with the terms of 

his probation and that it would be in the best interest of society if the case was dismissed. After 

a hearing, the district court denied the motion. Cunningham subsequently filed a motion to 

reconsider, which the district court also denied. Cunningham appeals. 
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II.

ANALYSIS

Where a withheld judgment has been granted, the district court has discretion to dismiss 

the case and discharge the defendant. Idaho Code § 19-2604; State v. Wiedmeier, 121 Idaho 189, 

191, 824 P.2d 120, 122 (1992). When a trial court’s discretionary decision is reviewed on 

appeal, the appellate court conducts a three-prong inquiry to determine: (1) whether the lower 

court correctly perceived the issue as one of discretion; (2) whether the lower court acted within 

the boundaries of such discretion and consistently with any legal standards applicable to the 

specific choices before it; and (3) whether the lower court reached its decision by an exercise of 

reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989). A motion for 

reconsideration is reviewed under the same abuse of discretion standard. State v. Montague, 114 

Idaho 319, 320, 756 P.2d 1083, 1084 (Ct. App. 1988). 

In his appeal, Cunningham concedes that under current law, “any offense requiring sex 

offender registration as set forth in section 18-8304, Idaho Code, shall not be subject to dismissal 

or reduction . . . .” I.C. § 19-2604. Statutory rape, a violation of Idaho Code § 18-6101, is an 

offense that requires sex offender registration under section 18-8304. When Cunningham pled 

guilty to statutory rape in 2001, section 19-2604(1) did not preclude him from applying for 

dismissal of his withheld judgment. The trial court had discretion to grant dismissal upon a 

satisfactory showing the defendant had “at all times complied with the terms and conditions upon 

which he was placed on probation” and upon the trial court’s findings that there was “no longer 

cause for continuing the period of probation” and that granting dismissal was “compatible with 

the public interest.” I.C. § 19-2604 (2001) (amended 2006). In July 2006, section 19-2604 was 

amended to preclude dismissal for individuals who have been convicted of offenses requiring sex 

offender registration. 2002 Idaho Sess. Laws ch. 157, § 1. 

The Idaho Supreme Court has held that the amendment to section 19-2604 retroactively 

applies to defendants who pled guilty prior to when the amendment took effect on July 1, 2006,

and does not violate ex post facto laws. State v. Forbes, 152 Idaho 849, 275 P.3d 864 (2012); 

State v. Hardwick, 150 Idaho 580, 249 P.3d 379 (2011). The Court stated the Legislature 

intended the amendment to apply to offenders who had already been granted a withheld 

judgment, as is the case here. Forbes, 152 Idaho at 851, 275 P.2d at 866; Hardwick, 150 Idaho 

at 582-83, 249 P.3d at 381-82.
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Although Cunningham concedes the law does not allow dismissal of his withheld 

judgment, he contends “the law should not apply to him because that was not the agreement he 

had with the State of Idaho when he entered into lawful probation contracts for several years 

with this State.” As the State points out, Cunningham offers no basis for overruling controlling 

precedent and provides no legal authority supporting the proposition that his contract with the 

State entitles him to dismissal of the withheld judgment. 

The district court correctly perceived the motion to dismiss the withheld judgment as one 

of discretion. More particularly, under the second prong of the abuse of discretion standard, the 

district court relied on Idaho Supreme Court precedent interpreting section 19-2604 in 

determining the bounds of the court’s discretion. We find no abuse of discretion by the district 

court either in denying Cunningham’s motion to dismiss his withheld judgment or in denying 

Cunningham’s motion for reconsideration.

III.

CONCLUSION

We affirm the district court’s orders denying Cunningham’s motion to dismiss his 

withheld judgment and denying Cunningham’s motion to reconsider. 

Chief Judge GRATTON and Judge LANSING CONCUR.