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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 45176

STATE OF IDAHO,

Plaintiff-Respondent,

v.

RICHARD KELLY DICKSON,

Defendant-Appellant.

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2018 Unpublished Opinion No. 471

Filed: May 24, 2018

Karel A. Lehrman, 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THIS IS AN UNPUBLISHED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. Samuel A. Hoagland, District Judge. 

Judgment of conviction and order denying Idaho Criminal Rule 35 

motion, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Sally J. Cooley, Deputy 

Appellate Public Defender, Boise, for appellant. 

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

General, Boise, for respondent. 

________________________________________________

GRATTON, Chief Judge 

Richard Kelly Dickson appeals from the judgment of conviction and the order denying 

his Idaho Criminal Rule 35 motion. We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Dickson had sexual contact with his seventeen-year-old niece. Law enforcement 

received a report that the conduct had occurred on several occasions. Police subsequently 

interviewed the victim who told them that her sexual interactions with Dickson had occurred on 

seven or eight separate occasions and that Dickson had provided her with alcoholic beverages

prior to each sexual interaction. She also informed police that she had seen marijuana plants 

growing at Dickson’s residence and she had seen Dickson provide marijuana to an unknown 

female. 
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In Ada County Case No. CR-01-17-4432 (“4432”), the State charged Dickson with five 

counts of sexual battery of a minor, Idaho Code § 18-1508A(1)(a), and four counts of dispensing 

alcohol to a minor, I.C. § 23-603. In Ada County Case No. CR-01-17-4116 (“4116”), the State 

charged Dickson with trafficking in marijuana, I.C. § 37-2732B(a)(1), and possession of drug 

paraphernalia, I.C. § 37-2734A. The State filed an amended information in case 4116 charging 

Dickson with one count of delivery of a controlled substance, I.C. § 37-2732(a), and possession 

of drug paraphernalia, I.C. § 37-2734A. The State moved to consolidate the cases. The district 

court granted the motion and entered an order consolidating Dickson’s two cases.

Pursuant to a plea agreement, Dickson pled guilty to one count of sexual battery of a 

minor, one count of dispensing alcohol to a minor, and one count of delivery of a controlled 

substance. The district court entered separate judgments of conviction in each case. In 

case 4432, the court imposed a fifteen-year sentence with four years determinate for the sexual 

battery of a minor charge and a concurrent 180-day sentence for dispensing alcohol to a minor. 

In case 4116, the court imposed a concurrent ten-year sentence with two years determinate for 

delivery of marijuana. Dickson timely filed a Rule 35 motion for reconsideration of his 

sentence. The district court denied the motion without a hearing. Dickson timely appeals.

II.

ANALYSIS

Dickson asserts that the district court abused its discretion by imposing excessive

sentences and by denying his Rule 35 motions for reduced sentence. As a preliminary matter, 

the State asserts that this Court lacks jurisdiction over case 4116. The State also contends that 

Dickson has failed to demonstrate an abuse of discretion in sentencing or in denying Dickson’s 

Rule 35 motion in case 4432. 

A. Subject Matter Jurisdiction

The State acknowledges that Dickson’s challenge to the district court’s sentencing 

decision in case 4432 is properly before this court because he timely filed a notice of appeal in 

that case. However, according to the State, this Court lacks jurisdiction to consider Dickson’s 

challenges to his sentence in case 4116 because Dickson did not file a notice of appeal from 

either the judgment of conviction in case 4116 or from the denial of his Rule 35 motion.

Dickson asserts the State’s argument that this Court lacks jurisdiction over his appeal in 

case 4116 is incorrect. Dickson argues that if this Court is persuaded by the State’s argument, it 
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would effectively render the district court’s order consolidating the cases a nullity. According to 

Dickson, he should be permitted to file a single notice of appeal for both cases using either case 

number because (1) Local Rule 11.21 does not require the order consolidating cases to specify 

which case number the consolidated cases will proceed under, and (2) the district court did not

specify which case number the consolidated cases would proceed under. We disagree.

A question of subject matter jurisdiction is fundamental and a matter of law; it cannot be 

ignored when brought to our attention and should be addressed prior to considering the merits of 

an appeal. State v. Huntsman, 146 Idaho 580, 583, 199 P.3d 155, 158 (Ct. App. 2008) (citations 

omitted). Pursuant to Idaho Appellate Rule 21, failure to file a notice of appeal with the clerk of 

the district court within the time limits prescribed by the appellate rules deprives the appellate 

courts of jurisdiction over the appeal. Idaho Appellate Rule 14 provides, in part:

Any appeal . . . may be made only by physically filing a notice of appeal 

with the clerk of the district court within 42 days from the date evidenced by the 

filing stamp of the clerk of the court on any judgment or order of the district court 

appealable as a matter of right in any civil or criminal action.

Dickson failed to file a notice of appeal within forty-two days from either the judgment 

of conviction in case 4116 or from the order denying his Rule 35 motion. Although the district 

court consolidated case 4432 with case 4116 for purposes of judicial efficiency at trial,

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entered separate judgments of conviction, each bearing separate case numbers. Dickson only 

filed a notice of appeal from the judgment of conviction in case 4432. That notice of appeal 

states, “[Dickson] appeals against the [State] to the Idaho Supreme Court from the Judgment of 

 1 Local Rule 11.2 of the District Court and Magistrate Division of the Fourth Judicial 

District provides:

Motions to consolidate pending criminal actions shall be presented to and 

ruled upon by the judge to whom the lowest numbered case or first filed case has 

been assigned among those matters sought to be consolidated. Notice shall be 

given to all parties in each action involved and a copy filed in each case involved. 

If a motion to consolidate is granted, all further action with regard to the 

consolidated cases shall be heard by the judge assigned to the lowest numbered 

case or first filed case involved.

Nothing in Local Rule 11.2 or the district court’s failure to designate one number applicable to 

each case supports the position that Dickson is allowed to choose one number for both cases. 

The opposite is true.

2 The State’s motion to consolidate stated that the purpose of consolidating the cases was

to “save witness and jury time and the expense for a separate and later trial.” Thus, appealing 

each separate judgment of conviction does not render the purpose of consolidation a nullity.
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Conviction entered against him in the above-entitled action . . . .” The caption of the notice of 

appeal bears case number 4432. Additionally, the notice of appeal makes no mention of case 

4116 in either the caption or the body. 

Moreover, the district court’s order appointing the Idaho State Appellate Public Defender 

supports the conclusion that Dickson only filed a notice of appeal from the judgment of 

conviction in case 4432. The caption of the order bears only case number 4432 and states, 

“[Dickson] has elected to pursue a direct appeal in the above-entitled matter.” Like the notice of 

appeal, the order makes no reference in either the caption or the body to case 4116. Therefore, 

this Court is without jurisdiction, pursuant to I.A.R. 21, to consider the merits of Dickson’s 

appeal insofar as he challenges the court’s sentencing discretion or its decision to deny his 

Rule 35 motion in case 4116. Because this Court lacks jurisdiction over case 4116, we only 

review the merits of Dickson’s appeal from case 4432.

B. Sentence Review

Dickson argues the district court abused its discretion by imposing a unified sentence of 

fifteen years with four years determinate. Dickson does not argue that his sentence is illegal, but 

that his sentence is excessively harsh because the trial court failed to adequately consider certain 

mitigating factors, e.g., his employment history as a bartender; his struggle with 

methamphetamine addiction and marijuana use; his emotional, behavioral, and cognitive 

conditions like depression and anxiety; the degree of his family’s support; and his remorse. 

The State argues Dickson failed to establish that the district court abused its sentencing 

discretion in case 4432. The State argues Dickson merely wishes the district court would have 

given the information he presents more mitigating weight because all of the information to which 

Dickson points was contained in the presentence materials that were considered by the court at 

the time of sentencing. We agree.

An appellate review of a sentence is based on an abuse of discretion standard. State v. 

Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal, 

the appellant has the burden to show that it is unreasonable and, thus, a clear abuse of discretion. 

State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such 

an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice, 

103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it 

appears at the time of sentencing that confinement is necessary to accomplish the primary 
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objective of protecting society and to achieve any or all of the related goals of deterrence, 

rehabilitation, or retribution applicable to a given case. State v. Toohill, 103 Idaho 565, 568, 650 

P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed 

an excessively harsh sentence, we conduct an independent review of the record, having regard 

for the nature of the offense, the character of the offender, and the protection of the public 

interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (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). 

On the record before this Court, Dickson’s unified sentence of fifteen years with four 

years determinate is not excessively harsh. Dickson correctly contends leniency is appropriate

when a defendant expresses remorse for his conduct and accepts responsibility for his acts. He 

also correctly contends that Idaho recognizes the following as mitigating factors at sentencing: 

(1) good employment history, (2) impaired capacity to appreciate the criminality of conduct due 

to the defendant’s ingestion of drugs and alcohol, and (3) mental illness. However, in light of the 

nature of the offense, the character of the offender, and the protection of the public interest, none 

of the mitigating information that Dickson presents on appeal, either alone or collectively, 

renders Dickson’s sentence excessively harsh.

The victim was particularly vulnerable to Dickson’s sexual abuse because she had 

already suffered sexual abuse in the past, her mother is a drug addict who has been in and out of 

prison, and Dickson plied her with alcohol before engaging her in the various sexual acts. 

Dickson has a lengthy criminal history that spans twenty years. He has been convicted of 

eighteen prior misdemeanor offenses, has been placed on probation, served jail time, and 

participated in a rider. Dickson’s term of incarceration protects the public interest. The 

psychosexual evaluator concluded that Dickson is less amenable to sex offender treatment than 

most sex offenders and that he poses a moderate risk to reoffend with a future sexual offense 

within five to ten years. Dickson has stated that he does not perceive himself to be a sex 

offender, blames the victim, and does not believe that he is in need of sex offender treatment. 

Finally, in fashioning Dickson’s sentence, the district court considered all of the mitigating 

information that he now presents to this Court on appeal. The district court ultimately imposed a 

sentence well within the statutorily prescribed limit. Pursuant to I.C. § 18-1508A(4), the 

maximum penalty for sexual abuse of a minor child in violation of I.C. § 18-1508A(1)(a) is life 
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imprisonment, yet Dickson was sentenced to fifteen years with just four years determinate. “A

sentence fixed within the limits prescribed by the statute will ordinarily not be considered an 

abuse of discretion by the trial court.” Nice, 103 Idaho at 90, 645 P.2d at 324. For all these 

reasons, we conclude that Dickson’s sentence was not excessively harsh nor did the district court 

abuse its discretion by imposing a fifteen-year sentence with four years determinate in case 4432.

C. Idaho Criminal Rule 35

Dickson argues the district court abused its discretion when it denied his Rule 35 motion 

in light of new information he offered in support of the motion. He contends that new or 

additional information was presented in support of his Rule 35 motion in the form of a letter to 

the district court. In the letter, Dickson wrote that he was close with his family and that he 

wanted to make amends with his father and grandparents who, according to Dickson, might not 

be alive when he is released from prison. In light of this new information about his family, in 

conjunction with the other mitigating information that was before the court at sentencing, 

Dickson argues the court abused its discretion by denying his Rule 35 motion.

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). 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). 

The district court did not abuse its discretion by denying Dickson’s Rule 35 motion for a 

reduction of his sentence. The only ostensibly new or additional information that Dickson 

provided to the district court in support of his Rule 35 motion was Dickson’s assertion in the 

letter that his family members were in failing health and that he wanted to make amends with 

them. The district court correctly concluded that Dickson had offered “nothing in the way of 

new information bearing on the reasonableness of the sentences and no argument or evidence 

showing that the sentences were unreasonable as imposed in light of the purposes of sentencing.”

Furthermore, after reviewing Dickson’s Rule 35 motion and the letter in conjunction with the 
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PSI and the judgments of conviction, the district court again concluded that the sentences

remained entirely appropriate and necessary to accomplish the objectives of sentencing: 

punishment, rehabilitation, deterrence, and protection of society. Dickson’s sentence was not 

excessively harsh when imposed, even taking into consideration the mitigating information that 

Dickson contends should have led the district court to reduce his sentence. Accordingly, the 

district court did not abuse its discretion by denying Dickson’s Rule 35 motion.

III.

CONCLUSION

Pursuant to I.A.R. 21, this Court is without jurisdiction to consider Dickson’s appeal in 

case 4116. Dickson’s sentence was not excessively harsh. The district court did not abuse its 

discretion by imposing a sentence of fifteen years with four determinate in case 4432, nor did it 

abuse its discretion by denying Dickson’s Rule 35 motion. Accordingly, we affirm the judgment 

of conviction and the order denying the Rule 35 motion for reconsideration of the sentence.

Judge GUTIERREZ and Judge HUSKEY CONCUR.