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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket Nos. 33578 & 35037

STATE OF IDAHO,

Plaintiff-Respondent,

v.

JESSICA HALBESLEBEN,

Defendant-Appellant.

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2009 Opinion 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 appellant. 

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

Attorney General, Boise, for respondent. 

______________________________________________

PERRY, Judge

Jessica Halbesleben appeals 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,

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ranging in age from one to fourteen, were living in deplorable and 

 

1 Halbesleben has eight biological children, but Halbesleben and her husband had 

previously lost custody of one of them.
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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 including 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 one of the police officers had to stop one of the 

young girls from eating food off of the filthy floor. There were also 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. The computer, which Halbesleben claimed she used for

instruction, was broken. 

Additionally, without necessitating an extensive factual description, all of the children 

were subjected to years of physical, psychological, and sexual abuse. Halbesleben was either 

party to or had knowledge of much of this abuse, yet most of it went unreported to authorities. 

The highly-sexualized behavior then manifested 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 padlock the two boys in their room at night, even though 

there 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. Halbesleben 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 entered a guilty plea to two counts 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 sexual

abuse. One term of the plea agreement provided that the state would recommend a term of 

imprisonment of ten years, with a minimum period of confinement of one year, for each count 

and that the defense could argue for lesser sentences. At sentencing, the prosecutor made the 

requisite recommendation after a recitation of some of the troubling facts of this case. 
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Additionally, the prosecutor argued that any sentences less than the recommendation would 

depreciate the gravity of the offenses. The district court sentenced Halbesleben to consecutive 

terms of ten years, with minimum periods of confinement of three years. Halbesleben did not 

appeal from her judgment of conviction.

Halbesleben filed a Rule 35 motion to reduce her sentences, which the district court 

denied. While the appeal of the denial of her Rule 35 motion was pending, Halbesleben filed an

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 conviction. Halbesleben appeals from 

her judgment of conviction arguing that the prosecutor breached the plea agreement and that her 

sentences are excessive. This appeal was assigned Docket Number 35037. Halbesleben’s appeal

challenging the district court’s order denying her Rule 35 motion for a reduction of her sentences

was assigned Docket Number 33578. These two appeals have now been consolidated for our 

review.

II.

ANALYSIS

A. Breach of the Plea Agreement

Halbesleben argues that the state breached the plea agreement because, at the sentencing 

hearing, the prosecutor gave the recommendation for a relatively lenient sentence only as an 

afterthought and effectively renounced the recommendation through vigorous argument against 

Halbesleben and the graphic 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 descriptions of the 

facts of this case followed by her opinion that anything less than the recommended sentences

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 fundamental error and may be reviewed for the first time on appeal); 

State v. Allen, 143 Idaho 267, 271-72, 141 P.3d 1136, 1140-41 (Ct. App. 2006) (holding that 

state’s breach of a plea agreement constitutes fundamental error and, therefore, defendant’s 
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failure to object in the district court did 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. State 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 performance 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 

reservation 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 expression 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 required that the prosecution recommend a sentence of 

ten years, 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 could argue that 
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the district court impose lesser sentences. At the sentencing hearing, the prosecutor 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 returned 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 agreed to the 

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 described 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 that 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 suspicion. 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 their oldest daughter, as well as sexual abuse between the siblings. The prosecutor 

argued that Halbesleben would leave the children unattended while she smoked 

methamphetamine in the garage. 
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The conclusion of the prosecutor’s argument summarized the state’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 supposed 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 all eight of these babies.

The magnitude 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 [Halbesleben] 

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.

Halbesleben 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 contends, 

effectively disavowed the state’s recommended sentences. In support of her argument, 

Halbesleben cites to Daubs, 140 Idaho 299, 92 P.3d 549 and State v. Wills, 140 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 recommend indeterminate life 

sentences--the most lenient sentence possible 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 rehabilitation, and argument that the defendant was highly culpable, 

manipulative, and dangerous. The Idaho Supreme Court held that the state had violated the plea 
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agreement by making a presentation at the sentencing hearing that was fundamentally at-odds 

with its obligated position that the court should impose 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 jurisdiction. 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 

prospects 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 Idaho 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 recommend 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 which 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 prosecutor’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.
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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 

prosecutor 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 proceeding, 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 required 

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 argued various other reasons 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 served 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 

recommendation contained in the PSI nor gave any personal opinion that Halbesleben’s crimes

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 Halbesleben merited even lesser sentences based on mitigating factors. 

Therefore, the prosecutor did not impliedly disavow the sentencing recommendation through her 

vigorous argument of the facts of Halbesleben’s crimes and, thus, did not breach the plea 

agreement.
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Halbesleben next contends that, even if the prosecutor’s vigorous argument served the 

purpose of rebutting defense counsel’s argument for lesser sentences, the prosecutor’s argument 

was “overkill.” She alleges 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. 

Furthermore, we disagree with Halbesleben’s conclusion. As stated above, defense counsel had 

already indicated an intention to seek lesser sentences. When the prosecutor began her 

argument, she had to dissuade the district court from any downward deviation from the 

recommended sentences 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 court that lesser sentences

would depreciate the gravity of the crimes 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 prosecutor gave no indication of an ulterior motive to 

seek harsher sentences and the district court’s discretionary decision to deviate from the 

recommendation in favor of harsher penalties does not prove the existence of one. Therefore, the 

prosecutor’s vigorous argument detailing the 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 Sentences and Rule 35 Reduction of Sentences

Halbesleben argues that her consecutive sentences of ten years, with minimum periods of 

confinement of three years, are excessive because she did not have an extensive criminal history 

and she did not behave abhorrently while incarcerated. Additionally, Halbesleben argues that the 

district court abused its discretion by denying her Rule 35 motion to reduce her sentences

because it did not understand the correct legal standards applicable to its analysis. The state 

responds that Halbesleben’s argument that the district court failed to understand the correct legal 

standards applicable to its Rule 35 analysis is unsupported by adequate argument or authority. 

Additionally, the state responds that Halbesleben has failed to show that her sentences are 

excessive.

1. Excessive sentences

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, 
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the appellant has the burden to show that it is unreasonable, and thus a clear abuse of discretion. 

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 applicable 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 

for 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 years, 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 sentence 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 

wrongdoing. 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 over 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 regarding her belief that her drug use was not affecting her 

parenting. While the district court acknowledged that Halbesleben might feel a level of remorse, 
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she had opportunities over many years to take action to improve the situation of her children and 

did not 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, stating: 

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 this 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 cannot 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 better, and you took no action.

But more than any other factor here: the seriousness of this crime. 

Children, in this great nation with all of the resources that are available, should 

not have had to go through what these children went through. No matter how 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 mitigating 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 commented 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.
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The facts of this case are extraordinary. Our review of the record reveals a severe 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 protect 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 district 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 give greater 

weight to certain of these factors, which it did in this case. The consecutive sentences it 

ultimately 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 district 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 

sentences 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 plea 
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agreement would create for future plea negotiations, and the state’s determination that the 

recommended sentences were adequate. Additionally, Halbesleben argued various sentencing

factors as well as parity between her sentences 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 specifically mentioned by 

trial counsel at the sentencing hearing, Halbesleben’s motion presented no new information for 

the district court to consider in reducing her sentences. However, even granting Halbesleben the 

benefit of the doubt that this information was 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 required 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 of 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 was not required to accept 

the recommended sentences 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 is 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 Halbesleben’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 the 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 address 

it, the argument has little merit. The district court did consider the plea agreement’s 

recommended sentences, it simply chose not to follow it.
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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.

Halbesleben 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 the 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 these 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 recommended 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 another 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. Zichko, 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 the guilty plea if it felt that the recommended sentences 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 to 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 sentences pursuant to her 

Rule 35 motion because they were unreasonably hash. We have concluded above that 

Halbesleben’s sentences are not unreasonably excessive. Therefore, we do not further address 

this argument. The district court did not abuse its discretion when it denied Halbesleben’s 

Rule 35 motion for a reduction of her sentences.

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 sentences are not 

excessive. The district court did not abuse its discretion by denying Halbesleben’s Rule 35 

motion for a reduction of her sentences. 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 sentences, 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.