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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38697

STATE OF IDAHO,

Plaintiff-Respondent,

v.

JUSTIN ROBERT WICKLUND,

Defendant-Appellant.

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2011 Unpublished Opinion No. 757

Filed: December 29, 2011

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED 

OPINION AND SHALL NOT 

BE CITED AS AUTHORITY

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin 

Falls County. Hon. G. Richard Bevan, District Judge. 

Judgment of conviction and consecutive unified sentences of twelve years, with 

two years determinate, for aggravated battery; and five years, with two years 

determinate, for aggravated assault, affirmed.

Greg S. Silvey, Star, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy 

Attorney General, Boise, for respondent. 

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Before GRATTON, Chief Judge; LANSING, Judge;

and GUTIERREZ, Judge

PER CURIAM

Justin Robert Wicklund pleaded guilty to aggravated battery, Idaho Code §§ 18-903(a), 

18-907(a) (reduced from a charge of rape); and aggravated assault, I.C. §§ 18-901, 18-905; and 

another charge was dismissed. The district court sentenced Wicklund to a unified term of twelve 

years, with two years determinate, for aggravated battery; and a unified term of five years, with 

two years determinate, for aggravated assault. Wicklund appeals, contending that his sentences

are excessive.

We first address the State’s argument that as a term of his plea agreement, Wicklund 

waived his right to appeal his sentences. A waiver of the right to appeal as a term of a plea 
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agreement is valid and will be enforced if it was made voluntarily, knowingly, and intelligently. 

Idaho Criminal Rule 11(f)(1); State v. Murphy, 125 Idaho 456, 872 P.2d 719 (1994). Wicklund’s 

plea agreement specified that he was waiving the right to appeal any issues in the case, including 

his sentences, except that “the defendant may appeal the sentence if the Court exceeds the 

determinate portion of the State’s sentencing recommendation of the ‘Jail/Prison Terms’ set forth 

above.” The “Jail/Prison Terms” section of the plea agreement did not specify any 

recommendation that the State was required to make but, to the contrary, stated “Open Rec.,” 

presumably indicating that the State was unrestrained on any recommendation that it made. The 

parties disagree about the meaning of this “Open Rec.” entry, but any ambiguity was resolved by 

the district court in colloquy with the defendant during the change of plea hearing, where the 

following exchange occurred:

THE COURT: Now, this plea agreement, though, does indicate that if the 

state recommends a sentence and I follow their recommendation or do something 

less regarding the fixed time of their sentence that you’ve then waived the right to 

appeal or file any motions for leniency later. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: Question 27 remains blank, and I guess part of the 

reason--That’s the question about have you waived your right to appeal. You

really don’t know until you know what they recommend and what I do; correct?

THE DEFENDANT: Yes.

THE COURT: But you understand that if I follow what they do for fixed 

time or do something less, you have waived that right, sir?

THE DEFENDANT: Yes.

At the sentencing hearing, the State recommended a ten-year sentence with five years 

determinate for aggravated battery and a consecutive indeterminate five-year term of 

imprisonment for aggravated assault, for an aggregate sentence of fifteen years with five years 

determinate. The district court imposed a unified twelve-year sentence with two years 

determinate for aggravated battery and a unified five-year term with two years determinate for 

aggravated assault. Thus, neither the determinate term for aggravated battery nor the aggregate 

determinate term imposed by the district court exceeded the State’s sentencing 

recommendations, but the two-year determinate sentence for aggravated assault was greater than 

the determinate term recommended by the State, which was zero. Therefore, we conclude that 

Wicklund’s challenge to the sentence for aggravated battery has been waived, but we will review 

the sentence for aggravated assault. 
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Sentencing is a matter for the trial court’s discretion. Both our standard of review and the 

factors to be considered in evaluating the reasonableness of the sentence are well established and 

need not be repeated here. See State v. Hernandez, 121 Idaho 114, 117-18, 822 P.2d 1011, 1014-

15 (Ct. App. 1991); State v. Lopez, 106 Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct. App. 

1984); State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (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). Applying these standards, and having reviewed the record 

in this case, we hold that Wicklund’s sentence for aggravated assault is not excessive.

Therefore, Wicklund’s judgment of conviction and sentences are affirmed.