1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38485

STATE OF IDAHO , Plaintiff-Respondent ,

v.

BRIDGETT LEE DELUCA , Defendant-Appellant

. ) ) ) ) ) ) ) ) ) ) 2012 Unpublished Opinion No. 406

Filed: March 19, 2012
Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Deborah A. Bail , District Judge.

Order revoking probation and executin g suspended sentence, affirmed ; order denying I.C.R. 35 motion for reduction of sentence, affirmed

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

________________________________________________ MELANSON, Judge Bridge t t Lee Deluca appeals from the district court’s order revoking her probation and executing sentence and from the district court’s order denying her I.C.R. 35 motion for reduction of sentence. For the reasons set forth below, we affirm.
I.
FACTS AND PROCEDURE
Deluca , who has a long history of methamphetamine addiction, pled guilty to felony possession of a controlled substance
, I.C. § 37

- 2732(c ), and misdemeanor injury to a child, I.C. §
18

- 1501(1). A psychological evaluation was performed prior to sentencing at Deluca’s expense
and was subm itted to the district court at Deluca’s request. Deluca was sentenced to a unified term of seven years
, w ith a minimum period of confinement of three years, for possession of a controlled substance and a concurrent sentence of 120 days for injury to a child. The district court retained jurisdiction. Following Deluca’s successful completion of the retained j urisdiction2 program, the district court suspended her sentence and placed her on probation for seven years. Approximately seven months later, the state alleged Deluca violated her probation by using methamphetamine, refusing to allow her probation officer to search her residence, and

ass ociating with known felons. Deluca admitted to violating her prob ation by using methamphetamine and refusing to allow her probation officer to search her residence. Prior to Deluca’s disposition hearing on the probation v iolation, her attorney requested the district court order an updated mental health evaluation. The district court denied the request, revoked Deluca’s probation, and executed her original sentence. Subsequently, Deluca filed a n I.C.R. 35 motion seeking r eduction of her sentence , which t he dist rict court denied . Deluca appeals.
II.
ANALYSIS Deluca argues on appeal that the district court erred when it denied her request for a n updated psychological evaluation pursuant to I.C. § 19

- 2522(1) prior to dispo sition of her probation violation. Deluca further asserts the district court abused its discreti on when it failed

to order a mental hea lth evaluation pursuant to I.C. § 19

- 2524 prior to disposition of her probation violation. Deluca also argues the distr ict court abused its discretion when it revoked her probation and imposed sentence. Finally, Deluca contends that the district court abused its
discretion when it denied her Rule 35 motion to reduce her sentence

. A. Psychological Evaluation Under I.C. § 19

- 2522 Deluca argues the district court erred when it denied her request for a p s ychological evaluation pursuant to I.C. § 19

- 2522(1) prior to the disposition hearing on her probation violation. The determination whether to obtain a psychological evalua tion lies within the sentencing court’s discretion. I.C. § 19

- 2522(1); I.C.R. 32(d); State v. Jones , 132 Idaho 439, 442, 974 P.2d 85, 88 (Ct. App. 1999). The legal standards governing the court’s decision whether to order a psychological evaluation and r eport are contained in I.C. § 19

- 2522. Pursuant to I.C. § 19

- 2522(1), if there is reason to believe that the mental condition of the defendant will be a significant factor at sentencing and for good cause shown, the sentencing court must appoint a psychia trist or licensed psychologist to examine and report upon the defendant’s mental
condition.
Previous decisions indicate that
, even if there is reason to believe the defendant’s mental condition will be a significant factor at sentencing, the court nonethel ess may deny a request for3 a new evaluation if the information contained in existing reports satisfies the requirements of I.C. § 19

- 2522(3). State v. McFarland , 125 Idaho 876, 879, 876 P.2d 158, 161 (Ct. App. 1994). Accordingly, we will uphold the distr ict court’s failure to order a psychological evaluation if the record supports a finding that there was no reason to believe a defendant’s mental condition would be a significant factor at sentencing or if the information already before the court adequatel y meets the requirements of I.C. § 19

- 2522(3). McFarland , 125 Idaho at 879, 876 P.2d
at 161

. Here , a psychological evaluation was performed at Deluca’s expense prior to sentencing

an d was incorporated into her presentence investigation report (PSI) at h er request

. This
evaluation was not prepared by court order pursuant to I.C. § 19

- 25 22 but was prepared by a licensed psychologist. The evaluation did not comport completely with the requirements of I.C. § 19

- 2522(3) , but there was no objection to the re port at the time of sentencing and no suggestion
that the district court should have required more information or ordered an additional report. 1 Deluca’s Axis I diagnoses were alcohol dependence, methamphetamine abuse, bipolar disorder,
bulimia nervosa
, a nd attention deficit hyperactivity disorder. Her Axis II diagnosis was borderline personality disorder. Plainly, the district court considered Deluca’s mental health issues in ordering, as a term of her probation, that she continue intensive outpatient t reatment f or her dual diagnose s. Deluca argues, however, that the district court erred in denying her request for an updated psychological evaluation because her mental health status had changed during the year
after she was sentenced
, and her mental health would be a significant factor at the disposition of her probation violation. In support of this claim, Deluca cites to State v. Izaguirre , 145 Idaho 820, 186 P.3d 676 (Ct. App. 2008). Izaguirre was convicted of second degree murder at the age of twenty. Izaguirre did not request a psychological evaluation prior to sentencing and one was not ordered sua sponte by the trial court. He was sentenced to a term of life imprisonment, with a minimum period of confinement of sixty years

. Izagu irr e filed an I.C.R. 35 motion for reduction of sentence and requested a psychological evaluation be performed prior to the hearing on his Rule 35 motion. In support of his request for a psychological evaluation, Izaguirre

1 The report did not address the relative risks and benefits of treatment or nontreatment nor did it provide a consideration of the risks of danger which Deluca might create for the public at large. I.C. §§ 19

- 2522(3)(e) and (f).4 submitted the affidavit of a psycho logist and several scholarly articles that asserted psychological changes occurring in a person’s teens and twenties act to reduce the risk they will become repeat offenders. The district court denied Izaguirre’s request for a psychological evaluation pri or to the disposition of his Rule 35 motion. On appeal
, t his Court reversed
, holding that, where there had been no psychological evaluation prior to sentencing and a psychologist’s affidavit submitted in support of the motion demonstrated there was reason to suspect psychological abnormalities would warrant consideration by the court, the district court should have granted the motion for a psychological evaluation prior to the hearing on Izaguirre’s Rule 35 motion

. Izaguirre , 145 Idaho at 823

- 24, 186 P.3d at 679

- 80. Deluca argues that the holding in Izaguirre , which required a trial court to order a psychological ev aluation prior to deciding a Rule 35 motion, should be extended to her request for a psychological evaluation prior to a probation violation disposition hearing because probation violation dispositions are analogous to Rule 35 hearings. We disagree. First, I.C. § 19

- 2522 mandates a psychological evaluation in certain circumstances only for purposes of informing the trial court’s initial sent encing decision; by its plain language, the statute has no application to a hearing on a probation violation. Contrary to Deluca’s argument,
we did not extend the Section 19

- 2522 requirement to Rule 35 proceedings in Izaguirre . In fact, we specifically s tated that “there is no claim of a direct violation of I.C. § 19

- 2522.” Izaguirre , 145 Idaho at 823, 186 P.3d at 679. Instead, we examined the indigent defendant’s request for an evaluation to support his Rule 35 motion as a matter committed to the trial court’s discretion. We held only that, where no psychological evaluation had been conducted before sentencing, and where an affidavit of a neuropsychologist indicated that the defendant’s personal history and behavior led the psychologist to suspect that neurocognitive abnormalities may have affected the defendant’s past behavior and would affect the risk of future aggression and that continued maturation of the defendant’s brain could have a positive impact on his behavior, the district
court abused its discretion by refusing to order such an evaluation before it ruled on the young defendant’s motion to reduce his unified life sentence, with a minimum period of confinement of sixty years. Because the mandate of I.C. § 19

- 2522 does not apply to probation violation proceedings, the district court here did not err in denying Deluca’s request for an additional psychological evaluation pursuant to that statute prior to the disposition of her probation violation.5 B. Mental Evaluation Under I.C. § 19

- 2524
Deluca also argues the district court abused its discretion when it failed to sua sponte
order a mental health evaluation examination under I.C. § 19

- 2524 prior to disposition of her probation violation. Idaho Code Section 19

- 2524 provides that
, when a de fendant has been
found to violate a condition of probation
, the court, prior to the hearing on revocation of probation, may order a defendant to undergo a mental health examination. The statute specifically provides that a court “ may” order the defendant to submit to a mental health
examination. The word “ may” is permissive and denotes an exercise of discretion. See State v. Harbaugh , 123 Idaho 835, 837, 853 P .2d 580, 582 (1993). Thus, we will review the lower
court’s decision to order a mental health e xamination under an abuse of discretion standard. When a trial court’s discretionary decision is reviewed on appeal, the appellate court conducts a
multi

- tiered inquiry to determine: (1) whether the lower court correctly perceived the issue as
one of dis cretion; (2) whether the lower court acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it; and (3) whether the lower court reached its decision by an exercise of reason. Stat e v. Hedger , 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989). In denying Deluca’s request for an updated mental health evaluation, t he district court noted that, upon its review of the file, there was no basis for an updated mental health report

. T he dis tric t court had extensive information regarding Deluca’s mental health at the time of the probation violation hearing. In addition, Deluca failed to present additional evidence which
would indicate her mental health status had ch anged or that would show a n additional mental
health evaluation was warranted. The only new information before the district court was that Deluca’s probation officer had suggested that she might benefit from a new evaluation. Therefore, we hold that the record demonstrates the di strict court did not abuse its discretion in failing to grant Deluca’s request for an updated mental health evaluation pursuant to I.C. § 19

- 2524 prior to disposition of Deluca’s probation violation.
C. Revocation of Probation Deluca argues the district court abused its discretion when it revoked her probation and imposed sentence. It is within the trial court’s discretion to revoke probation if any of the terms and conditions of the probation have been violated. I.C. § 19

- 260 3, 20

- 222; State v. Beckett , 1226 Idaho 324, 325, 834 P.2d 326, 327 (Ct. App. 1992); State v. Adams , 115 Idaho 1053, 1054, 772 P.2d 260, 261 (Ct. App. 1989); State v. Hass , 114 Idaho 554, 558, 758 P.2d 713, 717 (Ct. App. 1988). In determining whether to re voke probation, a court must examine whether the probation is achieving the goal of rehabilitation and is consistent with the protection of society. State v. Upton , 127 Idaho 274, 275, 899 P.2d 984, 985 (Ct. App. 1995); Beckett , 122 Idaho at 325, 834
P.2d at 327; Hass , 114 Idaho at 558, 758 P.2d at 717. The court may, after a probation violation has been established, order that the suspended sentence be executed or, in the alternative, the
court is authorized under I.C.R. 35 to reduce the sentence. Becke tt , 122 Idaho at 326, 834 P.2d at 328; State v. Marks , 116 Idaho 976, 977, 783 P.2d 315, 316 (Ct. App. 1989). A decision to revoke probation will be disturbed on appeal only upon a showing the trial court abused its
discretion. When a trial court’s discr etionary decision is reviewed on appeal, the appellate court
conducts a multi

- tiered inquiry to determine: (1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted within the boundaries of such
disc retion and consistently with any legal standards applicable to the specific choices before it; and (3) whether the lower court reached its decision by an exercise of reason. Hedger , 115 Idaho

at 600, 768 P.2d at 1333.
The record demonstrates that Deluca had an extensive criminal history
, including multiple felonies and a federal conviction for distribution of methamphetamine. Despite this criminal history
, the district court retained jurisdiction and, after Deluca’s completion of the rider program, plac ed Deluca on probation. Within seven months , Deluca admitted to violating her probation by using methamphetamine on multiple occasions and refusing to cooperate with her probation officer ’s request to search her residence . The record demonstrates that De luca had attended counseling and drug rehabilitation programs in the past, but these resources failed to change her behavior. In light of Deluca’s conduct during the probationary period and given her criminal history , it was reasonable for the district co urt to find she was unsuitable as a candidate for continuing on probation because probation was not achieving its rehabilitative purpose and was not consistent with the protection of society. Therefore, we hold the district court did not
abuse its discret ion when it revoked Deluca’s probation and executed her previously suspended

sentence.7 D. Denial of Rule 35 Motion Finally, Deluca contends that the district court abused its discretion when it denied her
Rule 35 motion for reduction of sentence

. A m otion 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). 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. 1987); State v. Lopez , 106 Idaho 447,
449

- 51, 680 P.2d 869, 871

- 73 (Ct. App. 1984). A lower court’s decision to grant or deny a
Rule 35 motion will not be disturbed on appeal in the absence of an abuse of discretion. State v.
Villarre al , 126 Idaho 277, 281, 882 P.2d 444, 448 (Ct. App. 1994). In support of her Rule 35 motion, Deluca presented letters from friends and family discussing her lengthy history of addiction and mental health issues. The letters did not present
new or additi onal evidence sufficient to demonstrate Deluca’s sentence was excessive in light of her past criminal record and poor performance on probation. Therefore, Deluca has failed to show that the district court abused its discretion in denying her Rule 35 motio n for reduction of

sentence.
III.
CONCLUSION The district court did not err in denying Deluca’s request for a psychological evaluation pursuant to I.C. § 19

- 2522(1) or I.C. § 19

- 2524 prior to the hearing on Deluca’s probation violation. In addition, t he district court did not abuse its discretion when it revoked Deluca’s probation and executed her previously suspended sentence and denied her Rule 35 motion to reduce her sentence. Accordingly, the district court’s order revoking Deluca’s probation and executing her previously suspended sentence and its order denying her Rule 35 motion are
affirmed. Judge LANSING and Judge GUTIERREZ, CONCUR.