1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No s . 49315/493 2 1

STATE OF IDAHO ,
Plaintiff

- Respondent ,

v.

JUSTIN LEE RADFORD ,
Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) Filed: February 7, 2023

Melanie Gagnepain, 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THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY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. Richard S. Christensen , District Judge.
Orders relinquishing jurisdiction and executing suspended sentence and orders denying Idaho Criminal Rule 35 motion, affirmed

. Eric D. Fredericksen, State Appellate Public Defender; Jacob L. Westerfield
, Deputy Appellate Public Defender, Boise, for app ellant.

Hon. Raúl Labrador , Attorney General; Andrew V. Wake , Deputy Attorney General, Boise, for respondent.

________________________________________________ HUSKEY, Judge This case involves two consolidated cases. Justin Lee Radford appeal s from the district
court’s order s relinquishing jurisdiction and executing his sentence and order s denying his Idaho
Criminal Rule 35 motion fo r a reduction in his sentences. Radford al leges the district court erred by placing an evidentiary burden on him to negate the Idaho Department of Correction ’ s (Department) recommendation to relinquish jurisdiction, instead of recognizing the decision to relinquish jurisdiction was discretionary. Radford additionally alleges the district court’s decisions to relinquish jurisdiction and deny his Rule 35 motion s were in err or in light of the evidence he presented. Because the district cour t did not abuse its discretion in relinquishing jurisdiction or denying Radford’s Rule 35 motion s , the court did not err. The order s relinquishing jurisdiction and executing Radford’s previously suspended sentences and order s denying his Rule 35 motion s

ar e affirmed.2 I.
FACTUAL AND PROCEDURAL BACKGROUND
The State char ged Radford with burglary
, two counts of grand theft, a nd a persistent
violator enhancement

. Pursuant to a plea agreement, Radford ple a d ed guilty to burglary , Idaho Code § 18

- 140, and the Sta t e dismissed the other charges. While the case was pending
, the State charg ed Radford in a separate case with conspiracy to commit burglary, three counts of burglary, and grand theft of a financial instrument

. Pursuant t o a plea agreement, Radford plead ed guilty to conspiracy to commit burglary , I.C. §§ 18

- 1401, 18

- 1701, and grand theft, I.C. §§ 18

- 2403(1), 18

- 2407(1)(b)(3), and the State dismissed the other charges. The cases were consolidated for sentencing.
T he d ist rict court sentenced Radford to eight years, with four years determinate, for burglar y ; nine years, with four years determinate, for conspiracy to commit burglary ; and ten years, with five years determinate, for grand theft, with the sentences to run concu rren tly . The court retained jurisdiction. At the jurisdictional review hearing, the district court told Radford that he had not performed well during the period of retained jurisdiction , but nonetheless the court suspended execution of Radford’ s sentence s and placed him on a three

- year term of probation. Thereafter, the State filed two separate reports of violation. Each time, Radford admitted the probation violations; the district court revoked probation, executed the underlying sentence, retained jurisdiction, and thereafter, placed Radford back on prob ation. T he State filed a third report of violation. Radford admitted to violating the terms of his probation; the district court found he violated the terms of his probation, revoked probation, and executed the underlying

sentence s. The district court s tated it seldom gave defendants four period s of retained jurisdiction,
it was concern ed that Radford would not be successful during the retained jurisdiction , and this

w ould be Radford’s last opportunity to be placed on probation if he successfully complet ed the retained jurisdiction program. The district court made clear that it would not consider further opportunities for probation. The district court retained jurisdiction for a fourth time. 1

1 It appears there was some c onfusion at this hearing about how many periods of retained jurisdiction Radfo rd had previously been granted. While the State correctly asserted that Radford had been granted three prior period s of retained jurisdiction; when asked by the district court, Radford and Radford’s counsel stated he had been granted two ; the court seemed to accept this assertion.3 During Radford’s fourth period of retained jurisdiction, he received multiple written warnings and a Class B disciplinary offense report (DOR). At the subsequent jurisdictional review hearing, the parties reviewed Radford’s disciplinary record and d iscussed Radford’s disciplinary problems reported in the addendum to the presentence investigation report (APSI) filed by the Department; the APSI recommended early relinquishment of jurisdiction. Radford disputed one of the written warnings reported in the A PSI and offered explanations for the other s

. Radford categorized the written warnings as largely “minimal , minor

- type corrective actions.” Radford
also disputed the DOR , which he believed was the reason the Departm ent recommended relinquishment. Radford asked the district court to continu e the period of r etained jurisdiction to allow him to show that he corrected his behavior and he could comply with expectations

. T he district court stated it found Radford’s file “disturbing on many counts,” but the court
did not have enough information in the disciplinary summary to fully assess what had happened, particularly in relation to t he DOR. T he district court continued the hearing for the parties to “obtain as much information as they can about these items that took place, these disciplinary matters that took place,” in order to provide Radford with “some more due process before the
Court makes up its mind.” Prior to the new hearing date, the Department filed a letter with the
district court with further updates since the APSI. The letter st ated : Mr. Radford was removed from the “Rider” program during the first part of July of 2021 for acts of violence. Since that time, Mr. Radford has been housed at Idaho Correctional Institute

- Orofino (ICIO), as he was deemed to pose a security risk and th reat to NICI. On 08/03/21, a report from NICI was sent to the court recommending Mr. Radford for relinquishment. Since that report, Mr. Radford has, once again, committed another act of violence while housed at ICIO. Mr. Radford was found guilty of anot her Class B DOR for Violence on 08/20/21. It appears that no matter where Mr. Radford goes in the Idaho Department of Correction, he carries his criminal behavior and thinking with him, which usually means violence, as this is his second offense in the ye ar of 2021. This was Radford’s second Class B DOR. At the continued review hearing, Radford explained
that he attempted to subpoena surveillance video of the second DOR to refute the Department’s reported version of events . T he D epartment filed a motion to quash the subpoena and
, consequently, Radford had not obtained the surveillance video at the time of the hearing . Despite not having the video, Radford wished to proceed with the hearing

. The district court responded “[t]hat being the case, it’s your burden i n this matter. So go ah ead.” Radford testified to the circumstances surrounding the DORs; the first arose from an incident during a telephone call
, and4 the second concerned what Radford described as his attempt to verbally de

- escalate a situation
while incarcerated in Orofino. Radford stated that he did not commit any violence in regards to
th e second DOR
, and he did not acknowledge that a fight even took place. In support of his challenge to the DORs, Radford also submitted additional report s from the Department regarding the DORs

. T he district court confirmed it received the report s

. Radford and the State made closing arguments ; Radford asserted the DORs were “much more nuanced than the Departm ent of Corrections would lead the Court to believe” and perhaps the Department was “mixing or blending those two incidents together.” Radford requested the court continue the period of retained jurisdiction or, in the alternative, to reduce his sentences to five years, with two years determinate. Radford also made a statement to the court outlin ing his plan for probation and explained he ha d a job, mental health resou rces, and state

- funded housing in Washington

. He also
stressed to the court that he wished to finish his period of retained jurisdiction so he would have a
chance to be released and b e an active parent in his daughter’s life.
The district court stated it reviewed Radford’ s file. The court noted th at despite multiple periods of retained jurisdiction, Radford continued to incur various disciplinary warnings and
infractions while incarcerated and was deemed a security risk by the Department

. The court relinquished jurisdiction and ordered execution o f Radford’s previously suspended sentence s

. R adford filed R ule 3 5 motion s which, after a hear ing, the court denied. Radford timely appeals.
II.
STANDARD OF REVIEW The decision to place a defendant on probation or whether, instead, to relinquish jurisdiction over the defendant is a matter within the sound discretion of the district court and will not be overturned on appeal absent an abuse of that discretion. State v. Hood , 102 Idaho 711, 712, 639 P.2d 9, 10 (1981); State v. Lee , 117 Idaho 203, 205

- 06, 786 P.2d 594, 596

- 97 (Ct. App. 1990). When a trial court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi

- tiered inquiry to deter mine whether the lower court: (1) correctly perceived the issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted consistently with any legal standards applicable to the specific choices before it; and (4) reached its dec ision by an exercise of reason. State v. Herrera , 164 Idaho 261, 270, 429 P.3d 149, 158 (2018).5 III.
ANALYSIS
Radford a rgues the district court erred by relinquishing jurisdiction and executing his previously suspended sentences and denying his Rule 35 motion s

. In response, the State argues the dis trict court did not err and
, alternatively, any error was harmless.
A. The District Court Did Not Err b y Relinquishing Jurisdiction
Radford a rgues the district court abused its discretion by relin quishing jurisdiction because: (1) it did not recognize the decision whether to revoke his probation was discretionary and instead imposed a burden up on him to negate the Department’s relinquishment recomm endation; and (2) the evidence at the jurisdictional review hearing demonstrated Radford made programming progress while incarcerated, did not commit an y new criminal offenses since the underlying
conviction
, and secured housing arrangements upon release

. Radford a lso argues the district court should have provided him the opportunity to complete his programming on his fourth period of retained jurisdiction or reduce his sentences as requested.
1. The district court did not misunderstand the discretionary nat ure of its relinquishment decision
R adford argues that because the district court requir ed him to negate the Department’s reasons for its relinquishment recommendation, the court failed to recognize that the decision whether to relinquish jurisdiction was discretionary. The State argues the district court correctly
understood it had discretion but be cause Radford was disputing information contained in the APSI, it was Radford’s burden to provide evidence supporting his claim. We agree with the State. Idaho law authorizes a court to retain jurisdiction over a defendant, after imposing sentence, for u p to 365 days. I.C. § 19

- 2601(4). During that time, the defendant is in the custody of the Department
, and the Department may submit a report to the sentencing court concerning the
defendant’s behavior. I.C. § 19

- 2601(4). The primary purpose of the ret ained jurisdiction program is to enable the trial court to gain additional information regarding the defendant’s rehabilitative potential and suitability for probation. State v. Lutes , 141 Idaho 911, 915, 120 P.3d 299, 303 (Ct. App. 2005). Thus, in order to reach a reasoned decision about whether to place the defendant on probation or relinquish jurisdiction, the trial court should properly weigh the information provided to it by the Department or the defendant about w hether the defendant is an appropriat e candidate for probation

. S ee id

. A trial court does not abuse its discretion when it follows the recommendation of the Department that jurisdiction be relinquished

. State v. Chavez , 120 Idaho6 460, 462, 816 P.2d 1017 , 1019 (1991). Further, the district court’s reliance on th e presentence investigation report (PSI) , the APSI, and the recommendation of the Department in determining whether to place the defendant on probation or to relinquish jurisdiction is appropriate and is not
an abuse of discr etion

. See State v. Steelsmith , 153 Idaho 577, 583

- 84, 288 P.3d 132, 138

- 39 (Ct. App. 2012) (holding district court did not abuse discretion by finding protection of society warranted relinquishing jurisdiction because, in part, PSI and APSI noted defenda nt’s failure to take responsibility for actions)

. Although the district court did not explicitly state that the determination whether to relinquish jurisdiction was discretionary, the court’s statements both at the initial and continued review hearing, dem onstrate the court recognized the issue as discretionary, understood the outer bounds of its discretion, and applied reason in reaching its decision. See State v. Latneau , 154 Idaho 165, 166, 296 P.3d 371, 372 (2013) (holding district court’s statements d emonstrated recognition of discretionary nature of relinquishment decision when it reviewed mental health evaluation and presentence investigation reports, expressed concern about defendant’s criminal history and performance while on retained jurisdiction, and ultimately found defendant was not good candidate for probation).
While it is true that t he Department’s recommendation is purely advisory and is in no way binding upon the trial court’s decision
, State v. Coassolo , 136 Idaho 138, 143, 30 P.3d 293, 298 (2001), if the information from the Department is the only information presented to the court, then
the court does not err in relying on the information provided in deciding whether to relinquish jurisdiction

. Accord ingly, i f the defendant wants the district court to consider information in
addition to
, or in contradiction of
, the information submitted by the Department
, then the defendant, as the proponent of the claim, carries the burden of production regarding addi tional
evidence

. See id. (holding it is important for trial court to receive report from Department on its assessment of defendant’s conduct during period of r etained jurisdiction and, in interest of fair judicial process, court should also receive in writing any response defendant may ch oose to make regarding recommendation)

. In response to the Department’s recommendation, Radford provided two investigative reports from the Department regarding the DORs

. The Department’s investigative report regarding Radford’s first DOR provided interview summaries from Radford, the other individual in the altercation, and several third

- party witnesses. Although in his interview Radford did not7 admit to any physical altercation, the other individual stated that after a verbal altercatio n over the telephone, Radford grabbed him by the arms
, which caused a bruise inside his right bicep
, and then
Radford slapped him in the face several times . This version of events was corroborated by two
other witnesses . O ne witness stated that Radford swung at the individual, missed, and the n slapped
him ; and the other witness stated that Radford slap ped the individual in the face four times.
The Department’s investigative report regarding the second DOR described Radford as
consp iring in an act of violence. The narrative report outlined a description of surveillance camera footage taken from inside one of the Department’s facilities as follows : Two inmates got into a heated argument in Radford’s presence; the two individual s the n entered a cell and removed articles of clothing. Radford did not enter the cell, but as another inmate walk ed away from the cell, Radford pointed at the cell door; the other inmate shut the cell door
, and then Radford pressed
on the cell door to ensure it was shut and secure. Almost immediately thereafter
, the two
individuals in the cell beg a n fighting

. P hotographs taken after the incident show the two individuals sustained multiple injuries as a result. The report concluded that Radford ’s actions
wit h the cell door could “only be interpreted as intentional concealment of the fight,” and Radford “assisted and/or conspired in the committing of this offense.” Thus, in accordance with Department policy, Radford was held accountable to the same level of o ffense as those who took part in the fight.
T he di strict court stated it reviewed Radford’s file, including the APSI, a letter from the Department, and reports from Radford’s counsel, and considered Radford’ s testimony. T he district
court found that despite multiple periods of retained jurisdiction, during which Radford knew “what the rules are and how specific they are in those correctional settings,” Radford continued to
receive warnings and infractions for breaking various rules and was eventually discipline d for acts
of violence. T he district court noted that during this most recent period of retained jurisdiction, the Department declared Radford to be a security risk and mov ed him to a different facility, where
he was again disciplined for an act of violence. T he district court considered Radford’s testimony
, but “was unpersuaded” about Radford’s suitability for probation

. The district court then relinquished jurisdiction

. I n context, th e district court’s references to Radford’s “ burden ” were not an abdication of
the court’s exe rcise of discretion , a mi sunderstanding that the court was bound by the Department’s

recom m endation, or an improper evidentiary burden shifting to Radford . Rather, the statements8 were acknowledgement s that if Radford wanted to dispute either the Department’s
recommendation to relinquish jurisdiction or the factual basis for the recommendation (or both)
, Radford needed to provide some evidence to the district court ; otherwise
, the court would make
its d ecision based on the evidence before it
, which consisted solely of the evidence from the Department detailing Radford’s problematic behavior. Accordingly, the district court did not err

. 2. The district court did not err in relinquishing jurisdiction
Radf ord allege s the district court abused its discretion by relinquishing jurisdiction because the evidence at the jurisdictional review hearing demonstrated he made programming progress
while i ncarcerated, did not commit any new criminal offenses since the underlying convictions
, and secured housing arrangements upon release. These assertions ignore the multiple written warnings, the two Class B DORs
, and Radford’s early removal from the rider program. While the APSI noted that Radford had completed over 6 0% of his programming while incarcerated and
demonstrated an in

- depth understanding of the skill s taught, it also state d that “it appears [Radford] does not transfer the skills outside the classroom due to his violence disciplinary action,” “struggles
with honesty in his situations and role

- plays,” and when he is “called on his dishonesty, he often turns to aggression and anger.” Further, while Radford may not have been charged with any criminal offenses while on probation, he did admit to using controlled substances while on probation and
, therefore
, it is not accurate to assert that he did not commit any criminal offenses during this time. Regardless, t he record i n this case
, as detailed above
, shows the district court properly
considered the informatio n before it and determined that relinquishing jurisdiction was appropriate based upon Radford’s continued concerning behavior while incarcerated, despite four p eriod s of retained jurisdiction. Accordingly, Radford has failed to show t he district court abused its discretion in relinquishing jurisdiction.
B. The District Court Did Not Err b y Denying Radford’s Rule 35 Motion s Radford alleges the district court abused its discretion by denying his Rule 35 motion s because the new and additional informati on he presented supported a reduction in his sentences. Specifically, R adford alleges in his testi mony at the Rule 35 motion hearing that he had family, job opportunities, medical insurance, social security benefits, mental heal th treatment, and public
ho using available in W ashington which warranted a reduction in his sentence.9 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 an I.C.R. 35 motion, the defendant must show that the sentence is excessive in light of new or additional information subsequently provided to the distr ict court in support of the motion. State v. Huffman , 144 Idaho 201, 203, 159 P.3d 838, 840 (2007). In conducting our review of the grant or denial of an I.C.R. 35 motion, we consider the entire record and apply the same criteria used for determining the reasonableness of the original sentence. State v. F orde , 113 Idaho 21, 22, 740 P.2d 63, 64 (Ct. App. 1987). Although on appeal Radford points to his testimony at the Rule 35 motion hearing that he had medical insurance, social security benefits, mental health treatment, and public housing
secured in Was hington as well as family and job opportunities
, as information to support a reduction in his sentence, none of this information was new or additional information to the district

court. At the fourth jurisdictional review hearing in which Radford requeste d a reduction in his underlying sentences, Radford made the following statement : The Court has been wanting me to get a job and be actively in mental health and have a job and housing

. I have no support in Idaho, but I have all that stuff in Washington n ow. I’ m state

- funded over there for housing, so I have a permanent place to live.

. . . I just want to be able to at least go back and finish my rider for my daughter’s sake. I’ d like to be able go home and be a better parent. According ly, the district court was aware of the information which Radford points to on appeal as support for his Rule 35 motion s prio r to Radford’s Rule 35 hearing. Moreover, as outlined above, Radford’s conduct after sentencing does not support a reduction in his sentences.
Ther e fore , the district court did not err in denying Radford’s Rule 35 motions

. IV.
CONCLUSION The district court did not abuse its decision by relinquishing jurisdiction or de nying
Radford’s Rule 35 motion s

. Accordingly, th e district court did not err and the order s relinquishing jurisdiction and executing the previously suspended sentences and orders denying the Rule 35
motion s are affirmed. Chief Judge LORELLO and Judge GRATTON CONCUR

.