IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 33890
STATE OF IDAHO,
Plaintiff-Respondent,

v.
LUCIO TINOCO-PEREZ,
Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ) ) 2008 Opinion No. 14A
Filed: February 29, 2008
Stephen W. Kenyon, Clerk

AMENDED OPINION THE COURT’S PRIOR OPINION DATED FEBRUARY 26, 2008 IS HEREBY WITHDRAWN

Appeal from the District Court of the Th ird Judicial District , State of Idaho, Washington County. Hon. Stephen W. Dres cher, District Judge.
Order denying motion for reduction of sentence, affirmed

. Maria E. Andrade of Huntley Park, LLP , Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney Genera l; Lori A. Fleming, Deputy Attorney General, Boise, for respondent.

______________________________________________ LANSING, Judge Lucio Tinoco-Perez appeals from the district court’s denial of his Idaho Criminal Rule 35
motion for reduction of se ntence. We affirm.
I.
FACTS AND PROCEDURE Tinoco-Perez was charged with attempte d strangulation, Idaho Code § 18-923, and aggravated assault, I.C. §§ 18-901, -905. Pursuant to a plea agreement, he pleaded guilty to aggravated assault and the remaining charge was dismissed. The district court imposed a unified term of incarceration of four years, with one and one-half years determinate, but retained jurisdiction. Following the period of retained jurisdiction, the distri ct court suspended the sentence and placed Tinoco-Perez on probation.

1While he was on probation, Tinoco-Perez file d an I.C.R. 35 motion for reduction of his sentence. In his memorandum and supporting materi als, Tinoco-Perez informed the court that he
was not a United States citizen but that he held lawful permanent resident status, and because the district court had imposed a unified sentence of more than 364 days, he had been detained by
federal authorities and was about to be mandato rily deported. Tinoco-Pe rez requested that the
district court reduce his sentence to less than one year so that he could be come eligible to apply
for relief that would allow hi m to remain in this country.
The district court denied the mo tion and Tinoco-Perez appeals.
II.
ANALYSIS A Rule 35 motion is a request for leniency which is addressed to the sound discretion of the sentencing 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 exce ssive in light of new or additional information subsequently provided to the district court in support of the motion. State v. Huffman , 144 Idaho 201, 159 P.3d 838 (2007). Our principal focus on review is upon the nature of the offense and
the character of the offender. State v. Reinke , 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). Where a sentence is not illegal, th e appellant must show that it is unreasonably harsh in light of the primary objective of protec ting society and the relate d goals of deterrence,
rehabilitation and retribution. State v. Broadhead , 120 Idaho 141, 145, 814 P.2d 401, 405 (1991), overruled on other grounds by State v. Brown , 121 Idaho 385, 825 P.2d 482 (1992);
State v. Toohill , 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). Here, Tinoco-Perez’s attorney supported the Rule 35 moti on with a brief and affidavit explaining that even though Tinoc o-Perez’s sentence was suspended, the length of that sentence made him subject to deportation with no hope of ev er regaining his status as a lawful permanent resident and no hope of otherwise being able to lawfully resume residence in the United States. The brief explained that under fede ral law, aggravated assault constitutes an “aggravated felony” resulting in deportation if a unified sentence of one year or longer is imposed. 8 U.S.C. § 1101(a)(43)(F). Therefor e, Tinoco-Perez sought reduction of the sentence to less than one year to avoid categorization of his convi ction as an aggravated felony.

2Although the risk of deportation or other im pact on immigration status is generally considered a “collateral consequence” of a criminal conviction, Retamoza v. State , 125 Idaho 792, 796-97, 874 P.2d 603, 607-08 (Ct. App. 1994), it ne vertheless is often a very significant consequence for the defendant. 1 Indeed, for many non-citizens, any term of imprisonment imposed by the court will be quite secondary to the immigration consequences in impact on the defendant’s life and future. Therefore, the e ffect on immigration status is an appropriate
consideration for a trial court in fashioni ng a sentence or considering Rule 35 relief. Nevertheless, we find no abuse of discretio n here, where the district court clearly
considered this new information that Tinoco-Per ez’s sentence would lead to his deportation, but ultimately denied his request for a sentence re duction. While the collateral consequences for
Tinoco-Perez warranted considera tion, the trial court properly concluded that they did not supplant other factors that bear upon the appropriate length of a sentence, including the severity of the offense, the defendant’s criminal history, and other aspects of the defendant’s character.
Tinoco-Perez attacked and choked his girlfriend in a drunken rage. When her son and his friend intervened, Tinoco-Perez then grabbed a knife and attacked the two men. During the ensuing struggle and in disarming Tinoco-Perez, the frie nd suffered several lacerations to his hand. Although this was Tinoco-Perez’s first felony conviction, he had pr eviously been convicted of numerous misdemeanors, including disorderly conduct, resisting or obstructing officers (twice), possession of a controlled subs tance (twice), and driving under the influence (twice). The
district court did not abuse it s discretion in concluding that the deportation consequences suffered by Tinoco-Perez did not warrant relief from the sentence imposed. 2

1 It is of sufficient import that Idaho Criminal Rule 11(d)(1) now requires that, prior to accepting a guilty plea, the court must notify a defe ndant that entry of a guilty plea or factual admissions could have consequences of deportation, inability to obtai n legal status in the United States, or denial of citizensh ip, for non-citizen defendants.

2 The State, citing State v. Jimenez , 120 Idaho 753, 819 P.2d 1153 (Ct. App. 1991) and State v. Rambo , 121 Idaho 1, 822 P.2d 31 (Ct. App. 1991), ha s argued that the district court lacked authority under I.C.R. 35 to entertain a mo tion for reduction of sentence because the rule does not authorize such motions after probation has been grante d at the end of a period of retained jurisdiction. We find it unnecessary to reso lve this issue because we affirm the district court’s denial of the Rule 35 motion on the merits.
34 Accordingly, the district court’s order denying Tinoco-Perez’s I.C.R. 35 motion is
affirmed. Chief Judge GUTIERREZ and Judge PERRY CONCUR.