1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No s . 33578 & 35037

STATE OF IDAHO , Plaintiff-Respondent ,

v.

JESSICA HALBESLEBEN , Defendant-Appellant

. ) ) ) ) ) ) ) ) ) ) 2009 Opin ion No. 14

Filed: March 10, 2009
Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael R. McLaughlin
, District Judge.
Judgment of conviction and consecutive terms of ten years, with minimum periods of confinement of three years, for two counts of felony injury to a child, affirmed

. Greg S. Silvey, Boise, for appellan t.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

______________________________________________ PERRY, Judge Jessica Halbesleben app eals from her judgment of conviction and sentences for two counts of felony injury to a child. Additionally, Halbesleben appeals from the district court’s order denying her I.C.R. 35 motion for reduction of her sentences . For the reasons set forth below, we affirm.
I.
FACTS AND PROCEDURE Police responded to Halbesleben’s home based on a report that her children had been left alone for several days without supervision. Upon entering the home, police discovered that Halbesleben’s seven children
, 1 ranging i n age from one to fourteen, were living in deplorable and

1 Halbesleben has eight biological children, but Halbesleben a nd her husband had previously lost custody of one of them.2

inhuman conditions. The home smelled of a foul odor ; the floors and walls and furniture were filthy and stained ; there were piles of trash, dirty laundry and used diapers strewn across hallways and in the corners of rooms ; there were numerous burns in the carpet around an unprotected wood stove ; the children ’ s bedding was filthy and several of their mattresses were
saturated with urine ; and shards of broken glass were found throughout the house incl uding in the children’s playroom. One of the children also had infected cuts on his hands and feet. Aside from the despicable sanitary conditions, police observed that there was very little food in the home, especially to support a family of nine, and on e of the police officers had to stop one of the young girls from eating food off of the filthy floor. There were al so reports of the children playing under

- clothed, or practically undressed, outside during the winter months. Halbesleben
claimed that she home

- schooled two of the children, but the children showed ignorance in simple concepts of math and spelling . T he computer, which Halbesleben claimed she used for instruction, was broken

. Additionally, without necessitating an extensive factual descript ion, all of the children

were subjected to years of physical, psychological, and sexual abuse. Halbesleben was eith er party to or had knowledge of much of this abuse, yet most of it went unrepor ted to authorities. The highly

- sexualized behavior then mani fested itself in the actions of the children as two of the older boys subjected the younger children to various forms of sexual abuse. Halbesleben’s futile response to this sexual conduct was to pad lock the two boys in their room at night , even though
the re was a history of sexual assault between the two . This resulted in the boys leaving their room through the window and reducing them to wetting their bed in order to relieve themselves in the middle of the night

. Halbes le ben would also allegedly tie up the boys in order to protect the younger children while she went to the garage to smoke. However, the assaults continued
unabated.
Halbesleben was charged with four counts of felony injury to a child. I.C. § 18

- 1501.
She en tered a guilty plea to two cou nts of felony injury to a child
, and the state dismissed the other two counts as well as a separate, additional misdemeanor charge for failing to report sex ual abuse. One term of the plea agreement provided that the state would recommend a term of impriso nment of ten years, with a minimum period of confinement of one year, for each count
and that the defense c ould argue for lesser sentence s . At sentencing, the prosecutor made the requisite recommendation after a recitation of some of the troubling facts o f this case

.3

Additionally, the prosecutor argued that any sentence s less than the recommendation would depreciate the gravity of the offense s . The district court sentenced Halbesleben to consecutive terms of ten years, with minimum period s of confinement of three years. Halbesleben did not appeal from her judgment of conviction.
Halbesleben filed a Rule 35 motion to reduce her sentence s , which the district court denied. While the appeal of the denial of her Rule 35 motion was pending, Halbesleben filed a n application for post

- conviction relief alleging , among other things, ineffective assistance of counsel for failing to file a direct appeal from her judgment of conviction. The district court granted relief on this claim and re

- entered the judgment of c onviction. Halbesleben appeals from her judgment of conviction arguing that the prosecutor breached the plea agreement and that her

sentence s are excessive . This appeal was assigned Docket N umber 35037. Halbesleben ’s appeal challenging the district cour t’s order denying her Rule 35 motion fo r a reduction of her sentence s

was assigned Docket N umber 33578. These t w o appeals have now been consolidated for our
review.
II.
ANALYSIS
A. Breach of the Plea Agreement Halbesleben argues that the state breached t he plea agreement because , at the sentencing hearing, the prosecutor gave the recommendation for a relatively lenient sentence only as an afterthought a nd effectively renounced the recommendation through vigorous argument against Halbesleben and the graphi c details and implications of her crimes. The state responds that the issue was not properly preserved by a timely objection below and that Halbesleben has failed to show fundamental error. Furthermore, the state contends that the prosecutor’ s descriptio ns of the facts of this case followed by her opinion that anything less than the recommended sentence s would depreciate the gravity of the crime did not constitute a breach of the plea agreement. The Supreme Court and this Court have held that breach of a plea agreement constitutes
fundamental error. See State v. Jafek , 141 Idaho 71, 74, 106 P.3d 397 , 400 (2005) (holding that claim of state’s breach of plea agreement goes to the foundation or basis of defendant’s rights and, therefore, constitutes fundam ental error and may be reviewed for the first time on appeal);
State v. Allen , 143 Idaho 267, 27 1

- 7 2, 141 P.3d 1136, 114 0

- 4 1 (Ct. App. 2006) (holding that state’s breach of a plea agreement constitutes fundamental error and
, therefore
, defendant ’ s4

failure to object in the district court d id not waive the right to raise the issue for the first time on appeal). It may be reviewed for the first time on appeal provided a sufficient record exists for
review . See State v. Daubs , 140 Idaho 299, 300, 92 P.3d 549, 550 (Ct. App. 2004). In this case,
the record is sufficient for our review. Therefore, we will consider whether the prosecutor’s argument at the sentencing hearing constituted a breach of the plea agreement. It is well established that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. Santobello v. New York , 404 U.S. 257, 262 (1971). This principle is derived from the Due Process Clause and the fundamental rule that, to be valid, a guilty plea must be both voluntary and intelligent. Mabry v. Johnson , 467 U.S. 504, 508

- 09 (1984); State v. Rutherford , 107 Idaho 910, 913, 693 P.2d 1112, 1115 (Ct. App. 1985). If the prosecution has breached its promise given in a plea agreement, whether that breach was intentional or inadvertent, it cannot be said that the defendant’s plea was knowing and voluntary, for the defendant has been led to plead guilty on a false premise. S tate v. Jones , 139 Idaho 299,
301

- 02, 77 P.3d 988, 990

- 91 (Ct. App. 2003). In such event, the defendant will be entitled to
relief. State v. Fuhriman , 137 Idaho 741, 744, 52 P.3d 886, 889 (Ct. App. 2002). As a remedy, the court may order specific perfor mance of the agreement or may permit the defendant to withdraw the guilty plea. Santobello , 404 U.S. at 263; Jones , 139 Idaho at 303, 77 P.3d at 991. The prosecution’s obligation to recommend a sentence promised in a plea agreement does not carry with it the obligation to make the recommendation enthusiastically. United States v.
Benchimol , 471 U.S. 453, 455 (1985); Jones , 139 Idaho at 302, 77 P.3d at 991. A prosecutor may not circumvent a plea agreement, however, through words or actions that convey a

r eservation about a promised recommendation, nor may a prosecutor impliedly disavow the recommendation as something that the prosecutor no longer supports. Jones , 139 Idaho at 302,
77 P.3d at 991. Although prosecutors need not use any particular form of e xpression in recommending an agreed sentence, their overall conduct must be reasonably consistent with making such a recommendation, rather than the reverse. Id. In this case, the plea agreement require d that the prosecution recommend a sentence of ten ye ars, with a minimum period of confinement of one year
, for each of the two counts to
which Halbesleben pled guilty. The agreement also provided that Halbesleben c ould argue that5

the district court impose lesser sentence s . At the sentencing hearing, the p rosecutor began by arguing: In the last ten years, there has not been a worse case of child abuse in this county than what [Halbesleben] managed to accomplish in 13 years. From the minute she began having children, these babies were at risk. None of these children ever had a chance because they were born to [Halbesleben] and her husband.

The prosecutor then described how the two oldest children were temporarily removed from Halbesleben’s custody in another state for maltreatment. When the children were r eturned to the Halbeslebens, they moved to Idaho

. Next, the prosecutor described how she believed the system failed the Halbesleben children because the children were brainwashed by their parents not to speak to anyone and to keep it all in the family so that they would not be taken away forever. The prosecutor described the events that led to the permanent loss of custody of one of the children and how that child had severe psychiatric conditions at the time that Halbesleben and her husband agree d to th e termination of custody. As an aside
, the prosecutor recounted how another child was sexually molested while in temporary foster care. The prosecutor added: “ The babies [Halbesleben] allowed her older children to molest and rape for the last four years were not even born yet.”
The prosecutor then commented that the other children do not remember the other son who was
removed and that the “ parents didn’ t care and let him disappear.” Following the comments relating to these events, the prosecutor describe d the school records and a report from a preschool teacher regarding the numerous intellectual deficits and learning delays facing the children and their “ desperate need of interaction, nurturing, stimulation, and routine.” The preschool teacher alleged t hat the Halbeslebens then moved to escape scrutiny from the Department of Health and Welfare. The prosecutor argued that Halbesleben began to remove the children from school, against school recommendations, in order to isolate the problems and avoid suspi cion. However, the children were not adequately instructed at home and all of the leisure time allowed a greater frequency of sexual abuse among the siblings. The prosecutor described the sexual abuse that had occurred between Halbesleben’s
husband and t heir oldest daughter, as well as sexual abuse between the siblings. The prosecutor argued that Halbesleben would leave the children unattended while she smoked methamphetamin e in the garage

.6

The conclusion of the prosecutor’s argument summarized the sta te’s views and recommendations of this case and is best considered in context, as follows :

We have eight children now who are orphans because of [Halbesleben’s] crimes. Her contribution in the world is making eight wards of the state for the next 16 years . So, not only do we get to pay financially, but the hours these social workers and foster parents and teachers will spend driving them and encouraging them through counseling and school and comforting them in the night when their parents who were suppose d to be there for them weren’t, reassuring them there is enough to eat and constantly trying to bolster their self

- esteem. Those costs and harm that she caused are truly incalculable. And these are children that came from her flesh

-- that she carried al l eight of these babies. The magn itude of the harm [Halbesleben] has caused by her crimes, I try not to think about, but it’s haunting. We need to be protected, obviously, from [Halbesleben] , but I think the most significant piece of this case for [Halbes leben] is that anything less than what the state recommends

-- and we encourage you to follow our recommendation

-- would depreciate the seriousness of what she has done over a long period of time. This didn’t happen overnight. This didn’t happen because she is poor. We live in a county where our children’s hospitals are like palaces. We have resources available for food and free dental care and all of those things. And she sat in the garage and smoked meth. Anything less than 1 year fixed followed by 9 indeterminate for 10, consecutive to 1 plus nine for 10, would depreciate the seriousness of what she did. We are not requesting restitution in this case because I can’t even begin to calculate, and I don’t think she has the means to ever pay.

Halbesleb en argues that the prosecutor’s vigorous argument, taken as a whole, was
inconsistent with the state’s relatively lenient recommendation of a term of ten years, with a minimum period of confinement of one year, for each count. This inconsistency, she cont ends, effectively disavowed the state’s recommended sentence s . In support of her argument,
Halbes le ben cites to Daubs , 140 Idaho 299, 92 P.3d 549 and State v. Wills , 1 4 0 Idaho 773, 102 P.3d 380 (Ct. App. 2004)
, which, in turn, cite to Jones , 139 Idaho 299 , 77 P.3d 988
, and State v. Lankford , 127 Idaho 608, 903 P.2d 1305 (1995)

. In Lankford
, the defendant was convicted of two counts of first degree murder and the state agreed to recommen d indeterminate life

sentences

-- the most lenient sentence po ssible for first degree murder

-- in exchange for his testimony against his co

- defendant. The state made the requisite recommendation , but then presented extensive evidence in aggravation, a psychologist ’ s testimony that the defendant was a poor candidate for rehabil itation, and argument that the defendant was highly culpable, manipulative, and dangerous. The Idaho Supreme Court held that the state had violated the plea7

agreement by making a presentation at the sentencing he aring that was fundamentally at

- odds
with i ts obligated position that the court should i mpose the most lenient sentence permitted by
law. Lankford , 127 Idaho at 617, 903 P.2d at 1314.
In Jones , the prosecutor agreed to recommend probation after the defendant served a period of retained jurisdictio n. However, while the prosecutor made the requisite recommendation, she argued to the district court that the presentence investigator advised against supervised probation , in part, out of concern for the safety of the victims and defendant’s poor

prospec ts for rehabilitation. Additionally, the prosecutor added that
, while she was bound to her recommendation, she did not have all of the aggravating information at the time of the plea agreement and, thus, left it up to the court’s discretion. Jones , 139 I daho at 300

- 01, 77 P.3d at
989

- 90. This Court held that the prosecutor’s statements “ effectively disavowed the recommendation of retained jurisdiction and advocated a harsher sentence. ” Id. at 303, 77 P.3d
at 992.
In Wills , the prosecutor agreed to recom mend a unified term of fifteen years, with a minimum period of confinement of three years , for each of two counts of lewd conduct

. At the sentencing hearing, the prosecutor emphasized the defendant’s pedophilia and insatiable hunger for young victims whic h would make it difficult to treat him and lead to a high

- risk of repeat offenses of escalating severity upon his release. The prosecutor then argued:

“ What he did to these two little ones is just completely horrendous and almost unthinkable. And I think , at a very minimum, he should get three years fixed followed by twelve indeterminate for fifteen. I think the state is showing great restraint by only recommending that sentence. ”

Wills , 140 Idaho at 774, 102 P.3d at 381. This Court held that the pro secutor’s argument breached the plea agreement: By presenting the recommended sentences as the minimum to be imposed and indicating that this minimum recommendation was made with “ great restraint,” the prosecutor failed to endorse the recommended terms as the ones the district court should accept. Instead, the prosecutor conveyed a reservation regarding the advisability of imposing those sentences and implied that longer terms would be more appropriate. This conduct was fundamentally at odds with what the state agreed to do under the plea agreement.

Id. at 776, 102 P.3d at 383.8

In Daubs , the prosecutor agreed to recommend retained jurisdiction in exchange for defendant’s guilty plea to sexual battery. However, at the sentencing hearing a different

pros ecutor argued:

“ Your honor, I have spoken with [the prosecutor assigned to the case], and the State has agreed to recommend no more than a Rider in this case. The PSI investigator, however, clearly is recommending prison based on the nature of Mr. Daub ’ s crimes, his prior record, and his substance abuse problems. Rather than having me restate the information presented to the Court in the PSI and in the letters from the victims, I would ask that this Court hear from [the victim ’ s parents], who are here. They ’ re better able than I am to explain the horrific consequences that this crime has had on them, their daughters, and their entire family. ”

Daubs , 140 Idaho at 301, 92 P.3d at 551. This Court held that the prosecutor’s argument, when
taken in context with the entire p roceeding, was fundamentally at

- odds with the terms of the plea agreement. Id. The prosecutor’s over

- emphasis on the harsher sentence recommended in the presentence investigation report (PSI) acted as a constructive disavowal of its req uired
recommendation. Id.
The facts of these cases relied on by Halbesleben are all distinguishable from her case . In
each of the cases cited above
, the prosecutor acknowledged the recommendation required by the plea agreement but argue d various other re asons why the district court should not accept the
recommendation and, instead, impose a more severe sentence . Or, in the case of Lankford , the prosecutor presented additional aggravating evidence which, at a sentencing for first degree murder, only serve d to favor imposition of the death penalty or fixed life

. This was entirely inconsistent with the state’s agreement to recommend an indeterminate term of life imprisonment. In the present case, the prosecutor made no allusion to a more severe
recommendat ion contained in the PSI nor gave any personal opinion that Halbesleben’s crime s merited a greater punishment than what was recommended. The prosecutor’s vigorous argument did not undermine the sentencing recommendation but
, rather, buttressed it against any argument from defense counsel that Halbe s leben merited e ven lesser sentence s based on mitigating factors.
Th erefore, the prosecutor did not impliedly disavow the sentencing recommendation through her vigorous argument of the facts of Halbesleben’s cri mes and, thus, did not breach the plea agreement

.9

Halbesleben next contends that, even if the prosecutor’s vigorous argument served the purpose of rebutting defense counsel’s argument for lesser sentence s , the prosecutor’s argument

was “ overkill. ” She all eges that the argument “ far exceeded anything even remotely necessary to ensure . . . a penitentiary sentence given the circumstances of this case.” Beyond this bare assertion, Halbesleben provides no other argument or authority for this proposition.
Fur thermore, we disagree with Halbesleben’s conclusion. As stated above, defense counsel had already indicated an intention to seek lesser sentence s . When the prosecutor began her argument, she had to dissuade the district court from any downward deviation from the
recommended sentence s in light of defense counsel’s impending argument. Her vigorous argument and description of the hard facts of this case and their impact on the lives of Halbesleben’s children justified her later statement to the district cou rt that lesser sentence s would depreciate the gravity of the crime s and not serve the necessary goal of protecting society. The prosecutor even argued this while encouraging the district court to follow the
recommendation . As noted previously, the prosec utor gave no indication of an ulterior mo tive to
seek harsher sentence s and t he district court’s discretionary decision to deviate from the recommendation in favor of harsher penalt ies does not prove the existence of one. Therefore, the prosecutor’s vigor ous argument detailing th e difficult facts of the case and the effect on the lives of the children did not constitute a breach of the plea agreement.
B. Excessive Sentence s and Rule 35 Reduction of Sentence s Halbesleben argues that her consecutive sentence s of ten years, with minimum period s of confinement of three years, are excessive because she did not have an extensive criminal history
and she did not behave a bhorrently while incarcerated. Additionally
, Halbesleben argues that the
district court abused its discretion by denying her Rule 35 motion to reduce her sentence s because it did not underst and the correct legal standards applicable to its analysis. The state responds that Halbesleben’s argument that the district court failed to understand the cor rect legal standards applicable to its Rule 35 analys i s is unsupported by adequate argument or authority. Additionally, the state responds that Halbesleben has failed to show that her sentences are
excessive.
1. Excessive sentence s An appellate review of a sentence is based on an abuse of discretion standard. State v.
Burdett , 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal,10

the appellant has the burden to show that it is unreasonable, and thus a clear abuse of discre tion. State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice , 103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it appears at the time of sentencing that confinement is necessary “ to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution appli cable to a given case.” State v. Toohill , 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed an excessively harsh sentence, we conduct an independent review of the record, having regard
fo r the nature of the offense, the character of the offender, and the protection of the public
interest. State v. Reinke , 103 Idaho 771, 772, 653 P.2d 1183, 1184 (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). In this case, the maximum penalty allowed by statute is a term of ten years with fines for each count. As noted above, the district court sentenced Halbesleben to a term of ten year s, with a minimum period of confinement of three years, for each count. So long as the sentence is within the statutory limits, the appellant must show that the trial court, when imposing the sentence, clearly abused its discretion. State v. Farwell , 144 Idaho 732, 736, 170 P.3d 397, 401 (2007). A sentence will only be set aside when reasonable minds could not differ as to the
excessiveness of the sentence. Id. To prevail, the appellant must establish that, under any reasonable view of the facts, the s entence was excessive considering the objectives of criminal punishment. Id. These objectives are the protection of society, deterrence of the individual and the public generally, the possibility of rehabilitation, and punishment or retribution for

wrong doing. Id. At the sentencing hearing, the district court articulated its reasons for the upward deviation from the sentencing recommendation . The district court noted its grave concern regarding the terrible neglect and abuse suffered by the children ove r a long period of time and Halbesleben’s utter lack of concern for their welfare. The district court also expressed its apprehension over Halbesleben’s lack of candidness with the court and investigators, as well as her lack of insight, especially regard ing her belief that her drug use was not affecting her parenting. While the district court acknowledged that Halbesleben might feel a level of remorse,11

she had opportunities over many years to take action to improve the situation of her children and
did n ot do so. Additionally, while her husband may have been controlling and treated her like chattel, that did not deprive her of her choice to provide her children with the fundamentals of
life

-- of which she deprived them. Next, the district court considered the objectives to be served in the imposition of Halbsleben’ s sentences , stat ing :

The court, in fashioning the sentence in this case, looks at, certainly, the circumstances and the facts of this offense. We look at the very nature of this crime. And th is is a crime in which children

-- innocent children through your inaction and, on occasion, your action

-- are permanently scarred for the rest of their lives. . . . And it was your duty and obligation as a parent to give them a fair opportunity. I cann ot escape, then, looking at the nature and circumstances of this crime. You’re not a career criminal. . . . There is not a history here of a prior felony . . . as there was with your ex

- husband. Deterrent to others in the community. I’m not going to say that the sentence that I impose will be made public to every person that’s out there that’s not caring for their children in a proper way. Deterrent to you. Yes, I think that that’s a fair consideration in this respect. I have concluded that you knew bet ter, and you took no action. But more than any other factor here: the seriousness of this crime. Children, in this g reat nation with all of the resources that are available, should not have had to go through what these children went through. No matter h ow you spin it, these children were entitled to better

-- better parenting, love, nurturing

-- and you blatantly ignored that responsibility. The seriousness of this crime cannot be overlooked by this court.
The district court also observed some mitiga ting factors. It noted that the existence of programming potentially available for Halbesleben would not be a significant factor in its consideration. The district court found that Halbesleben’s codependence with her husband did not excuse or justify her conduct because she had ample opportunities to make choices for her children and failed to do so. Furthermore, the district court found that
, because of her actions
, her children would never be fully compensated. Then the district court stated:

I commen ted earlier that a factor that I am looking at is that overall you’ve led a law

- abiding life other than for these very, very serious offenses that you’re here before this court on. Will these circumstances re

- occur? Granted, your children’s

-- your rights to your children have been terminated by another judge. And, to my knowledge, you’re incapable in having children so the court can and will factor that into consideration.12

The facts of this case are extraordinary. Our review of the record reveals a sev ere degree of abuse and neglect inflicted on Halbesleben’s children over a long period of time. The serious nature of these crimes merits a harsh penalty. While the district court acknowledged Halbesleben’s relatively sparse criminal history, the record in this case does not reveal that she is a person of high moral character who simply acted innocently or ignorantly

. Furthermore, there is a strong interest to protect the public, especially those younger members of our society who cannot adequately prote ct themselves, from the type of conduct underlying the present charges and those who perpetrate these unnatural acts devoid of basic parental affection. This estimation is in accord with the district court’s evaluation of Halbesleben’s crimes. The distri ct court also adequately considered the sentencing objectives of specific and general deterrence, possible rehabilitation, and retribution or punishment. The district court had the discretion to gi ve greater weight to certain of these factors, which it di d in this case. The consecutive sentences it
ultima tely imposed upon Halbesleben are adequate to protect these societal interests and further the sentencing objectives. Thus, having thoroughly reviewed the record in this case, we cannot say that the dist rict court abused its discretion.
2. 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. Huffman , 144 Idaho 201, 203, 159 P.3d 838, 840 (2007). An appeal from a denial of a Rule 35 motion cannot be used as a vehicle to review the underlying sentence absent the presentation of new information. Id. 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. 1997); State v. Lopez , 106 Idaho 447, 449

- 51, 680 P.2d 869, 871

- 73 (Ct. App. 1984). In Halbesleben’s Rule 35 motion, she argued that the district court should reduce her

sentence s based upon the extent of the plea negotiations, the avoidance of the trauma and expense of trial for the children and the state, the difficulty that failure to follow the plea13

agreement would create for future plea negotiations, and the state’s determination that the
recommended sentence s w ere adequate. Additionally, Halbesleben argued various sentencing factors as well as parity between her sentence s and her husband’s because he received his recommended sentence of a term of thirty years, with a minimum period of confinement of fifteen years. Arguably, even though not all of this information was specifi cally mentioned by trial counsel at the sentencing hearing, Halbesleben’s motion presented no new information for the district court to consider in reducing her sentence s . However, even granting Halbesleben the
benefit of the doubt that this information w as new to the district court, based on our review we
conclude that no abuse of discretion has been shown. Regardless of the extent of the plea negotiations or whether the state believed the recommendation to be adequate , the district court was not requir ed to follow the recommendation. The only authority which Halbesleben now cites in support of her argument that the district court misunderstood the role of the plea bargain in the criminal justice system is Schoger v. State , ___ Idaho ___, ___ P.3d ___ ( Ct. App. 2008), review granted (Dec. 10, 2008). As review is pending by the Supreme Court, Schoger is not authoritative. Even if it were, Schoger does not require a district court to accept a recommended sentence. 2 Rather, the case
addressed the issue o f a trial court’s discretion in rejecting a guilty plea offered pursuant to North Carolina v. Alford , 400 U.S. 25 (1970). Likewise, the district court wa s not required to accept
the recommended sentence s because the plea saved the victims from the rigors and trauma of trial or saved the state time and money. Furthermore, the district court was not required to consider the potential chilling effect that its decision to deviate from the sentencing
recommendation could have on future plea negotiations. It i s already well

- understood that district courts are not required to accept sentencing recommendations and, therefore, a district court exercising its discretion not to do so is not altogether unforeseeable when negotiating a plea agreement. Concerning Halb esleben’s arguments regarding the sentencing factors of

2 Halbesleben then attempts to argue that her plea was not knowing and voluntary because, while she knew that the district court did not have to follow the recommendation, she did not know that th e court may not even consider it. This appeal does not concern the voluntariness of Halbesleben’s plea and, therefore, we need not address this argument. Even were we to addre ss it, the argument has little merit. The district court did consider the plea agreement’s recommended sentences, it simply chose not to follow it.14

protecting society, deterrence and rehabilitation, these arguments were all presented and properly considered by the district court at the sentencing hearing. We need not address them further.
Halbes leben argues that the district court abused its discretion by allegedly refusing to consider the sentence imposed upon her husband. She argues that the district court incorrectly labeled her argument as disingenuous. Halbesleben’s argument is belied by t he record. At the sentencing hearing, the district court stated:

This is a case in which the court could impose up to 20 years in the state penitentiary with fines. The court imposed a 15

- year sentence that was fixed and a 15

- year indeterminate sentence to your former husband. And as was pointed out by your counsel and what the court certainly took into consideration is that Thomas Halbesleben had been in the criminal justice system on an earlier time and date for a charge very similar, if not identical, to the charge that brought him before this court. And that’s certainly a

-- was an aggravating factor that the court looked at in sentencing. That being said, I concur with the state in terms of their description of the terrible neglect and abuse of thes e children over a long period of time. And many children. This was gross neglect.

The district court was aware of and considered the sentence of Halbesleben’s husband and the aggravating factors that led to a harsher penalty for him than was warranted in her case. Halbesleben’s argument in her Rule 35 motion was not that the district court should consider her
husband’s sentence as compared with her own. Rather she argued that the district court should
consider that her husband received the sentence re commended by his plea agreement and, therefore, so should she. This argument, as the district court held, is irrelevant. Halbesleben now offers no authority for the proposition that a district court that imposes a sentence recommended by a plea agreement upon one defendant must also follow the recommended
sentence of a separate plea agreement for a nother defendant charged with crimes arising out of the same conduct. A party waives an issue on appeal if either authority or argument is lacking.
State v. Z ichko , 129 Idaho 259, 263, 923 P.2d 966, 970 (1996). Halbesleben also argues that because the district court knew the difficult facts of this case before it was presented with the plea bargain at the change of plea hearing, it should not have accepted th e guilty plea if it felt that the recommended sentence s were inappropriate. Halbesleben offers little argument other than this bare assertion and offers no authority in support of this proposition. We note that, if the parties wanted the district court t o be bound by their sentencing recommendations, I.C.R. 11 provides a mechanism to do so. Additionally,15

Halbesleben argues that the district court should have reduced her sentence s pursuant to her
Rule 35 motion because they were unreasonably hash. We hav e concluded above that
Halbesleben’s sentence s are not unreasonably excessive. Therefore, we do not further address this argument. T he district court did not abuse its discretion wh en it denied Halbesleben’s
Rule 35 motion for a reduction of her sentence s

. III.
CONCLUSION The prosecutor’s argument at the sentencing hearing did not undermine the sentencing recommendation and did not breach the plea agreement. Halbesleben’s sentence s are not excessive. The district court did not abuse its discretion by de nying Halbesleben’s Rule 35
motion for a reduction of her sentence s . Therefore, Halbesleben’s judgment of conviction and sentences for two counts of felony injury to a child, as well as the district court’s order denying
Halbesleben’s Rule 35 motion for a reduction of her sentence s , are affirmed. Judge GRATTON, CONCURS. Judge GUTIERREZ, DISSENTING I respectfully dissent. The lengthy argument presented at sentencing by the state, with repeated vigorous emphasis on the horrendous abuse and neglect suffered by the children, can only be viewed as disavowing the plea agreement sentencing recommendation. Therefore, I would vacate the sentence and remand for resentencing before a different judge.