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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket Nos. 49315/49321

STATE OF IDAHO,

Plaintiff-Respondent,

v.

JUSTIN LEE RADFORD,

Defendant-Appellant.

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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THIS IS AN UNPUBLISHED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 appellant. 

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 appeals from the district 

court’s orders relinquishing jurisdiction and executing his sentence and orders denying his Idaho 

Criminal Rule 35 motion for a reduction in his sentences. Radford alleges 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 motions were in error in light of the evidence he 

presented. Because the district court did not abuse its discretion in relinquishing jurisdiction or 

denying Radford’s Rule 35 motions, the court did not err. The orders relinquishing jurisdiction 

and executing Radford’s previously suspended sentences and orders denying his Rule 35 motions

are affirmed. 
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I.

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Radford with burglary, two counts of grand theft, and a persistent 

violator enhancement. Pursuant to a plea agreement, Radford pleaded guilty to burglary, Idaho 

Code § 18-140, and the State dismissed the other charges. While the case was pending, the State 

charged Radford in a separate case with conspiracy to commit burglary, three counts of burglary, 

and grand theft of a financial instrument. Pursuant to a plea agreement, Radford pleaded 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. 

The district court sentenced Radford to eight years, with four years determinate, for 

burglary; 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 concurrently. 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 sentences 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 probation. The 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 

sentences. The district court stated it seldom gave defendants four periods of retained jurisdiction, 

it was concerned that Radford would not be successful during the retained jurisdiction, and this 

would be Radford’s last opportunity to be placed on probation if he successfully completed 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 confusion at this hearing about how many periods of retained 

jurisdiction Radford had previously been granted. While the State correctly asserted that Radford 

had been granted three prior periods 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. 
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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 discussed 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 APSI and offered explanations for the others. Radford

categorized the written warnings as largely “minimal, minor-type corrective actions.” Radford 

also disputed the DOR, which he believed was the reason the Department recommended 

relinquishment. Radford asked the district court to continue the period of retained jurisdiction to

allow him to show that he corrected his behavior and he could comply with expectations. 

The 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 the DOR. The 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 stated:

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 

threat 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 another 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 year 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. The Department 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 in this matter. So go ahead.” Radford testified to the 

circumstances surrounding the DORs; the first arose from an incident during a telephone call, and 
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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 

the 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 reports from 

the Department regarding the DORs. The district court confirmed it received the reports. Radford 

and the State made closing arguments; Radford asserted the DORs were “much more nuanced than 

the Department 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 outlining his plan for probation and

explained he had a job, mental health resources, 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 be an active parent in his daughter’s life. 

The district court stated it reviewed Radford’s file. The court noted that 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 of Radford’s previously suspended sentences. 

Radford filed Rule 35 motions which, after a hearing, 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 determine 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 decision 

by an exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018).
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III.

ANALYSIS

Radford argues the district court erred by relinquishing jurisdiction and executing his 

previously suspended sentences and denying his Rule 35 motions. In response, the State argues

the district court did not err and, alternatively, any error was harmless. 

A. The District Court Did Not Err by Relinquishing Jurisdiction 

Radford arguesthe district court abused its discretion by relinquishing jurisdiction because: 

(1) it did not recognize the decision whether to revoke his probation was discretionary and instead 

imposed a burden upon him to negate the Department’s relinquishment recommendation; and 

(2) the evidence at the jurisdictional review hearing demonstrated Radford made programming 

progress while incarcerated, did not commit any new criminal offenses since the underlying 

conviction, and secured housing arrangements upon release. Radford also 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 nature of its 

relinquishment decision

Radford argues that because the district court required 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 because 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 up 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 retained 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 whether the defendant is an appropriate candidate 

for probation. See 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 Idaho 
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460, 462, 816 P.2d 1017, 1019 (1991). Further, the district court’s reliance on the 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 discretion. 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 defendant’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, demonstrate 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 demonstrated 

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 the 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. Accordingly, if 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 additional 

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 retained jurisdiction and, in interest of fair 

judicial process, court should also receive in writing any response defendant may choose 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 not 
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admit to any physical altercation, the other individual stated that after a verbal altercation 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. One witness stated that Radford swung at the individual, missed, and then slapped 

him; and the other witness stated that Radford slapped the individual in the face four times. 

The Department’s investigative report regarding the second DOR described Radford as 

conspiring 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 individuals then entered a cell and removed 

articles of clothing. Radford did not enter the cell, but as another inmate walked 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 began fighting. Photographs taken after the incident show the two 

individuals sustained multiple injuries as a result. The report concluded that Radford’s actions 

with 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 offense as those who took 

part in the fight.

The district 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. The 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 disciplined for acts

of violence. The district court noted that during this most recent period of retained jurisdiction, 

the Department declared Radford to be a security risk and moved him to a different facility, where 

he was again disciplined for an act of violence. The district court considered Radford’s testimony, 

but “was unpersuaded” about Radford’s suitability for probation. The district court then 

relinquished jurisdiction. 

In context, the district court’s references to Radford’s “burden” were not an abdication of 

the court’s exercise of discretion, a misunderstanding that the court was bound by the Department’s 

recommendation, or an improper evidentiary burden shifting to Radford. Rather, the statements 
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were acknowledgements 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 decision 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 

Radford alleges the district court abused its discretion by relinquishing jurisdiction because 

the evidence at the jurisdictional review hearing demonstrated he made programming progress 

while incarcerated, 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 60% of his programming while incarcerated and

demonstrated an in-depth understanding of the skills taught, it also stated 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, the record in this case, as detailed above, shows the district court properly 

considered the information before it and determined that relinquishing jurisdiction was appropriate

based upon Radford’s continued concerning behavior while incarcerated, despite four periods of 

retained jurisdiction. Accordingly, Radford has failed to show the district court abused its 

discretion in relinquishing jurisdiction.

B. The District Court Did Not Err by Denying Radford’s Rule 35 Motions

Radford alleges the district court abused its discretion by denying his Rule 35 motions

because the new and additional information he presented supported a reduction in his sentences. 

Specifically, Radford alleges in his testimony at the Rule 35 motion hearing that he had family, 

job opportunities, medical insurance, social security benefits, mental health treatment, and public 

housing available in Washington which warranted a reduction in his sentence. 
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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 district 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. Forde, 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 Washington 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 requested 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 now. 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.

Accordingly, the district court was aware of the information which Radford points to on 

appeal as support for his Rule 35 motions prior to Radford’s Rule 35 hearing. Moreover, as 

outlined above, Radford’s conduct after sentencing does not support a reduction in his sentences. 

Therefore, 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 denying 

Radford’s Rule 35 motions. Accordingly, the district court did not err and the orders relinquishing 

jurisdiction and executing the previously suspended sentences and orders denying the Rule 35 

motions are affirmed.

Chief Judge LORELLO and Judge GRATTON CONCUR.