1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 40840

STATE OF IDAHO , Plaintiff-Respondent ,

v.

JAY MORRIS BURNET , Defendant-Appellant

. ) ) ) ) ) ) ) ) ) ) 2014 Unpublished Opinion No. 661

Filed: August 13, 2014
Stephen W. Kenyo n, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. John T. Mitchell , District Judge.
Order revoking probation and executing reduced unified sentence of five years, with four years determinate
, affirmed

. Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson , Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer , Deputy Attorney General, Boise, for respondent.

________________________________________________ Before GUTIERREZ, Chief Judge; LANSING, Judge; and GRATTON, Judge

PER CURIAM Jay Morris Burnet pled guilty to eluding a police officer
, Idaho Code § 49

- 1404(2) . The
district court sentenced Burnet to a determinate five

- year term , and retained jurisdiction. Upon completion of a period of retained jurisdiction, the district court suspended Burnet’s sentence and placed him on probation

. Burnet later incurred a new criminal charge, and the district court revoked Burnet’s probation and executed a reduced sentence of a unified term of five years, with four years determinate. After filing this appeal, and before assignment to this Court, Burnet filed a motion to augment the record with additional transcripts. The State filed an objection, and the Idaho Supreme Court de nied the motion. Burnet renewed his motion, which was again denied.2 On appeal Burnet argues that th e Idaho Supreme Court denied him due process, equal protection, and effective assi stance of counsel by denying his motion s to augment the record

. Burnet al so contends that the district court abused its discretion by revoking probation and failing to further reduce his sentence

. A. Denial of Motions to Augment Record
Burnet asks this Court to hold that the Idaho Supreme Court deprived him of due process, equal protection, and effective assistan ce of counsel when it denied his motion to augment the record. We do not, however, have the authority to review and, i n effect, reverse an Idaho Supreme Court decision on a motion made prior to assignment of the case to this Court on the ground that the Supreme Court decision was contrary to the state or federal constitutions or other
law. See State v. Morgan , 153 Idaho 618, 620, 288 P.3d 835, 837 (Ct. App. 2012). Such an undertaking would be tantamount to the Court of Appeals entertaining an appeal from an Idaho Supreme Court decision and is plainly beyond the purview of this Court. Id. If a motion is renewed by the m ovant and new information or a new or expanded basis for the motion is presented to this Court that was not presented to the Supreme Court, we deem it within the authority of this Court to evaluate and rule on the renewed motion in the exercise of our

resp onsibility to address all aspects of an appeal from the time of assignment to this Court. Id

. Such may occur if the appellant ’ s or respondent ’ s briefs have refined, clarified, or expanded issues on appeal in such a way as to demonstrate the need for addi tional records or transcripts, or where new evidence is presented to support a renewed motion. Id.
Burnet has not filed with this Court a renewed motion to augment the record o r presented
to this Court in his briefing any significant new facts or a new justification for augmentation bey ond that already advanced in his motion to the Supreme Court. In es sence, Burnet asks us to determine that the Idaho Supreme Court violated c onstitutional law by denying his mo tions.
We adhere to our conclusion in Morgan that reviewing the denial of a motion to augment the record by the Supreme Court is beyond the scope of our authority. If a party files a renewed motion after the case assignment to this Court and presents new information or justification for the motion, we have the authorit y to rule on the motion. Burnet h ad an opportunity to present his constitutional arguments to the Supreme Court and that Court denied his motion s. H e has no right to appeal that denial to the Idaho Court of Appeals, and we have no authority to consider such an appeal.3 B. Revocation of Probation and Review of Sentence It is within the trial court’s discretion to revoke probation if any of the terms and conditions of the probation have been violated. I.C. §§ 19

- 2603, 20

- 222; State v. Beckett , 122 Idaho 324, 325, 834 P.2d 326, 327 (Ct. App. 1992); State v. Adams , 115 Idaho 1053, 1054, 772 P.2d 260, 261 (Ct. App. 1989); State v. Hass , 114 Idaho 554, 558, 758 P.2d 713, 717 (Ct. App. 1988) . In determining whether to revoke probation, a court must examine whether the probation is achieving the goal of rehabilitation and consistent with the protection of society. State v. Upton , 127 Idaho 274, 275, 899 P.2d 984, 985 (Ct. App. 1995); Beckett , 122 Idaho at 325, 834 P.2d at 327; Hass , 114 Idaho at 558, 758 P.2d at 717. The court may, after a probation violation has been established, order that the suspended sentence be executed or, in the alternative, the
court is authorized under Idaho Crimin al Rule 35 to reduce the sentence. Beckett , 122 Idaho at 325, 834 P.2d at 327; State v. Marks , 116 Idaho 976, 977, 783 P.2d 315, 316 (Ct. App. 1989). The court may also order a period of retained jurisdiction. State v. Urrabazo, 150 Idaho 158, 162, 244 P.3d 1244, 1248 (2010). A decision to revoke probation will be disturbed on appeal only upon a showing that the trial court abused its discretion. Beckett , 122 Idaho at 325, 834
P.2d at 327. In reviewing the propriety of a probation revocation, the focu s of the inquiry is the conduct underlying the trial court’s decision to revoke probation. Morgan , 153 Idaho at 621, 288
P.3d at 838 . Thus, this Court will consider the elements of the record before the trial court
relevant to the revo cation of probation issues that are properly made part of the record on appeal.
Id

. Sentencing is also a matter for the trial court’s discretion. Both our standard of review and the factors to be considered in evaluating the reasonableness of a sentence are well
establi shed and need not be repeated here. See State v. Hernandez , 121 Idaho 114, 117

- 18, 822 P.2d 1011, 1014

- 15 (Ct. App. 1991); State v. Lopez , 106 Idaho 4 47, 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). When we review a sentence that is ordered into execution following a period of probat ion, we examine the entire record encompassing events before and after the original judgment. State v. Hanington , 148 Idaho 26, 29, 218 P.3d 5, 8 (Ct. App. 2009). We base our review upon the facts existing when the sentence was imposed as well as events occurring4 between the original sentencing and the revocation of the probation. Id . Thus, this Court will consider the elements of the record before the trial court that are properly made part of the record on appeal and are relevant to the defendant’s contention that the trial court should have further reduced the sentence sua sponte upon revocation of probation. Morgan , 153 Idaho at 621, 288
P.3d at 838. Applying the foregoing standards, and having reviewed the record in this case, we cannot say that the district court abused its discretion in revoking probation . Assuming Burnet c an challenge the district court’s failure t o further sua sponte reduce his sentence, we also conclude that the district court did not err in ordering execution of Burnet ’s underlying sentence without
further reduction

. The order revoking probation and exe cuting a reduced sentence of a unified term of five years, with four years determinate, is affirmed.