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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket Nos. 44364/44365/44366

STATE OF IDAHO,

Plaintiff-Respondent,

v.

DARIUS DUANE BROWN,

Defendant-Appellant.

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2017 Unpublished Opinion No. 384

Filed: March 1, 2017

Stephen W. Kenyon, 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THIS IS AN UNPUBLISHED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. John T. Mitchell, District Judge. 

Order revoking probation, affirmed; order denying, in part, Rule 35 

motion, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford, 

Deputy Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney 

General, Boise, for respondent. 

________________________________________________

Before GRATTON, Chief Judge; MELANSON, Judge;

and HUSKEY, Judge

________________________________________________

PER CURIAM

In Docket No. 44364, Darius Duane Brown pled guilty to burglary. Idaho Code § 18-

1401. The district court sentenced Brown to a unified term of seven years with three years 

determinate, suspended the sentence, and placed Brown on supervised probation for four years. 

Subsequently, Brown admitted to violating the terms of the probation two times, and the district 

court in both instances continued Brown’s supervised probation. Brown admitted to violating his 

probation a third time and the district court continued him on supervised probation, but extended 

the probationary period by one year.
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In Docket No. 44366, an officer attempted to stop Brown after observing him cross the 

fog line several times. Brown refused to stop and accelerated away, crossing into the state of 

Washington and the pursuit was terminated. The State charged Brown with eluding a peace 

officer, I.C. § 39-1404(2), with a persistent violator enhancement, I.C. § 19-2514.

In Docket No. 44365, officers attempted to stop a vehicle Brown was driving. A pursuit 

ensued with Brown driving his vehicle recklessly and at excessive speeds, eventually crashing 

into a ditch and subsequently being apprehended. The State charged Brown with eluding a peace 

officer, I.C. § 39-1404(2), with a persistent violating enhancement, I.C. § 19-2514.

Brown subsequently admitted to violating probation in Docket No. 44364; pled guilty to 

eluding a peace officer with persistent violator enhancement in Docket No. 44365; pled guilty to 

eluding a peace officer with persistent violator enhancement in Docket No. 44366. The district 

court revoked Brown’s probation and ordered the underlying sentence in Docket No. 44364 

executed, imposed concurrent unified sentences of twenty years with five years determinate in 

Docket Nos. 44365 and 44366, and retained jurisdiction in all three cases. Following the period 

of retained jurisdiction, the district court suspended Brown’s sentences and placed him on 

supervised probation for a period of three years.

Brown later violated the terms of his probation a fifth time and the district court 

consequently revoked his probation and ordered the underlying sentences executed in all three 

cases. Brown filed notices of appeal from the district court’s orders revoking probation. Brown 

also filed Idaho Criminal Rule 35 motions for reduction of sentence, which the district court 

granted, in part, by reducing Brown’s sentences in Docket Nos. 44365 and 44366 to twenty years 

with four years determinate. The district court declined to reduce Brown’s sentence for the 

burglary charge. Brown appeals, asserting that the district court abused its discretion by

revoking probation and by denying, in part, the Rule 35 motion.

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. §§ 19-2603, 20-222; State v. Beckett, 122 

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 revoke probation a court must examine whether the probation 

is achieving the goal of rehabilitation and 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 
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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. Beckett, 122 Idaho at 325, 834 P.2d at 

327; State v. Marks, 116 Idaho 976, 977, 783 P.2d 315, 316 (Ct. App. 1989). The court may also 

order a period of retained jurisdiction. I.C. § 19-2601. A decision to revoke probation will be 

disturbed on appeal only upon a showing that the trial court abused its discretion. Beckett, 122 

Idaho at 325, 834 P.2d at 327. In reviewing the propriety of a probation revocation, the focus of 

the inquiry is the conduct underlying the trial court’s decision to revoke probation. State v. 

Morgan, 153 Idaho 618, 621, 288 P.3d 835, 838 (Ct. App. 2012). Thus, this Court will consider 

the elements of the record before the trial court relevant to the revocation of probation issues 

which are properly made part of the record on appeal. Id.

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). Upon review of the 

record, including any new information submitted with Brown’s Rule 35 motion, we conclude no 

abuse of discretion has been shown. Therefore, the district court’s order denying, in part, 

Brown’s Rule 35 motions is affirmed. 

Applying the foregoing standards, and having reviewed the record in this case, we cannot 

say that the district court abused its discretion either in revoking probation or by denying, in part, 

the Rule 35 motion. Therefore, the orders revoking probation and denying the Rule 35 motion 

are affirmed.