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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 45255

STATE OF IDAHO,

Plaintiff-Respondent,

v.

BRANDON E. SAVAGE,

Defendant-Appellant.

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2018 Unpublished Opinion No. 361

Filed: February 20, 2018

Karel A. Lehrman, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Third Judicial District, State of Idaho, 

Canyon County. Hon. Davis F. Vandervelde, District Judge. 

Order denying Idaho Criminal Rule 35 motion for correction of illegal 

sentence, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Reed P. Anderson, 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; GUTIERREZ, Judge;

and LORELLO, Judge

________________________________________________

PER CURIAM

Brandon E. Savage pled guilty to possession of sexually exploitative material, Idaho 

Code § 18-1507A. The district court imposed a unified sentence of ten years, with a minimum 

period of confinement of three years, suspended the sentence and placed Savage on probation. 

Following a post-conviction proceeding, Savage was resentenced to a unified sentence of ten 

years, with a minimum period of confinement of three years, and placed on probation for ten 

years commencing from the date of the original judgment. Savage violated probation and the 

district revoked probation and ordered execution of the original sentence. Savage filed an Idaho 

Criminal Rule 35 motion for reduction of sentence, which the district court denied. Savage 
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subsequently filed two Rule 35 motions for correction of an illegal sentence, both of which were 

denied by the district court.

In this case, Savage filed his third Rule 35 motion for correction of an illegal sentence, 

asserting that his sentence is illegal because he was not allowed to present mitigating evidence 

during the sentencing phase of his case. The district court denied Savage’s motion, finding that 

Savage’s sentence is not illegal. Savage appeals.

In State v. Clements, 148 Idaho 82, 87, 218 P.3d 1143, 1148 (2009), the Idaho Supreme 

Court held that the term “illegal sentence” under Rule 35 is narrowly interpreted as a sentence 

that is illegal from the face of the record, i.e., does not involve significant questions of fact or 

require an evidentiary hearing. Rule 35 is a “narrow rule,” and because an illegal sentence may 

be corrected at any time, the authority conferred by Rule 35 should be limited to uphold the 

finality of judgments. State v. Farwell, 144 Idaho 732, 735, 170 P.3d 397, 400 (2007). Rule 35 

is not a vehicle designed to reexamine the facts underlying the case to determine whether a 

sentence is illegal; rather, the rule only applies to a narrow category of cases in which the 

sentence imposes a penalty that is simply not authorized by law or where new evidence tends to 

show that the original sentence was excessive. Clements, 148 Idaho at 87, 218 P.3d at 1148. 

The record supports the district court’s finding that Savage’s sentence is not illegal. 

Therefore, the district court properly denied Savage’s motion. Accordingly, we conclude no 

abuse of discretion has been shown and the district court’s order denying Savage’s Rule 35 

motion is affirmed.