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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket Nos. 45951, 45952 & 45953

STATE OF IDAHO,

Plaintiff-Respondent,

v.

ODILON BANDA HERNANDEZ,

Defendant-Appellant.

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Filed: March 13, 2019

Karel A. Lehrman, 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THIS IS AN UNPUBLISHED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. 

Orders denying Idaho Criminal Rule 35 motions, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Kim A. Coster, 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; HUSKEY, Judge;

and BRAILSFORD, Judge

________________________________________________

PER CURIAM

In Docket No. 45951, Odilon Banda Hernandez pleaded guilty to possession of a 

controlled substance, Idaho Code § 37-2732(c)(1), and the district court imposed a unified fiveyear sentence, with two years determinate, suspended the sentence, and placed Hernandez on a 

term of probation. In Docket No. 45952, Hernandez pleaded guilty to felony driving under the 

influence (DUI), I.C. §§ 18-8004, 18-8005(6). Hernandez also admitted to violating the terms of 

his probation in 45951. In 45952, the district court imposed a unified seven-year sentence, with 

two years determinate, to run concurrently with his sentence in 45951. The district court 

revoked Hernandez’s probation in 45951 and retained jurisdiction in both cases. Following his 

period of retained jurisdiction, the district court placed Hernandez on a term of probation. Next, 
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in Docket No. 45953 Hernandez pleaded guilty to possession of controlled substance, I.C. § 37-

2732(c)(1). He also admitted to violating the terms of his probation in 45951 and 45952. 

Consequently, the district court revoked probation in 45951 and 45952 and executed the 

underlying sentences. In 45953, the district court imposed a consecutive, two-year indeterminate 

sentence. Hernandez filed an Idaho Criminal Rule 35 motion to correct an illegal sentence in 

each case. The district court found that the I.C.R. 35 motions for reduction of sentence were not 

filed timely and, thus, the court lacked subject matter jurisdiction and denied the motions. 

Hernandez timely appeals. 

On appeal, Hernandez claims that the district court erred by denying his motions to 

correct an illegal sentence pursuant to I.C.R. 35(a) seeking relief when the district court “failed 

to take into account certain known or knowable neurological facts regarding ‘frontal lobe 

immaturity’ in young men” and the court was required to take this into consideration when 

determining Hernandez’s sentences. Hernandez argues that the court erred because his motions 

were timely filed and not time barred. Further, Hernandez acknowledged that his requested

relief would rely on “development of additional facts at an evidentiary hearing.” 

Under I.C.R. 35(a), a motion to correct an illegal sentence may be filed at any time and,

thus, the district court did err by denying Hernandez’s motion on a timeliness ground. Yet, 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 I.C.R. 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. Idaho Criminal Rule 35 is a “narrow rule,” and because an illegal sentence 

may be corrected at any time, the authority conferred by I.C.R. 35 should be limited to uphold 

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

Criminal 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. Hernandez’s claims of illegal sentences are outside the scope of claims that may

be brought through an I.C.R. 35(a) motion because his claims require additional evidence and so 

his claim of error is not clear on the face of the record.
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Error is not reversible unless it is prejudicial. State v. Stoddard, 105 Idaho 169, 171, 667 

P.2d 272, 274 (Ct. App. 1983). Idaho Criminal Rule 52 states that “any error, defect, irregularity 

or variance that does not affect substantial rights must be disregarded.” An err is harmless when 

the court finds the result would be the same without the error. State v. Almaraz, 154 Idaho 584, 

598, 301 P.3d 242, 256 (2013). 

In this case, although the district court denied the motions in error based on a time bar, 

the motions would otherwise be denied because the relief sought was outside the scope of 

I.C.R. 35(a). Accordingly, the district court’s orders denying Hernandez’s I.C.R. 35 motions are 

affirmed.