1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 49725

STATE OF IDAHO ,
Plaintiff

- Respondent ,

v.

SUZANA MARIE CONNOR ,
Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) Filed: February 29, 2024
Melanie Gagnepain, 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THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY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. Patrick J. Miller , District Judge.
Order denying I.C.R. 35 motion for correction of illegal sentence, affirmed

. Nevin, Benjamin & McKay, LLP; Dennis Benjamin, Boise, for appellant.
Hon. Raúl R. Labrador, Attorney General; Kale D. Gans , Deputy Attorney General, Boise, for respondent.

________________________________________________ LORELLO, Judge
Suzana Marie Connor appeals from an order of the district court denying her I.C.R. 35 motion for correction of an illegal sentence

. W e affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND In 2012, Con n or was arrested and charged with felony driving under the influence (DUI)

. I.C

. §§ 18

- 8004 and 18

- 8005(9). Connor pled not guilty and the district court scheduled a jury trial. However, prior to trial, Connor absconded

. More than six years later, Connor was arrested in Oregon and extradited to Idaho. After returning to Idaho, Connor entered a conditional guilty plea to felony DUI, and the district court sentence d Connor to a unified term of ten year s , with a minimum period of confinement of two and one

- half years. Thereafter, Connor filed a Rule 35
motion alleging her sentence i s excessive and requesting a reduction of her sentence, which the2

district court denied. Connor appealed to this Court, which affirmed in an unpublished opinion

. See State v. Connor , Docket No. 47006 (Ct. App. May 22, 2020). Following her appeal, Connor filed a litany of pro se motions, including a second Rule 35
motion alleging her sentence i s illegal. Among other claims, Conno r argued her sentence i s illegal
because the district court lacked the authority to order her to provide a DNA sample. The district court denied Connor’s second Rule 35 motion after it concluded that the “requirement to provide a DNA sample/thumbprint were not in error and are, in fact, required for the Court to impose pursuant to Idaho Law.” Connor appeals

. II.
STANDARD OF REVIEW In an appeal from the denial of a motion under I.C.R. 35 to correct an illegal sentence, the question of whether the sentence imposed is illegal is a question of law freely reviewable by the appellate court. State v. Josephson , 124 Idaho 286, 287, 858 P.2d 825, 826 (Ct. App. 1993).
III.
ANALYSIS
Connor argues the district court erred by denying her I.C.R. 35 motion. Specifically,
Connor contends the DNA collection portion of her sentence i s illegal because it violate d her Fourth Amendment right s due to the absence of a warrant or an exception to the warrant requirement based on a “special needs” balancing test. The State responds that Connor’s Fourth
Amendment argument s are not preserved for appeal

. Alternatively, the State a sserts that, even if preserved, Rule 35 is not the appropriate vehicle for Conno r ’s fact

- intensive argument. We hold that Connor’s Fourth Amendment argument s are not preserved and that , even if preserved, her alleged Fourth Amendment violation is not the proper subject of a Rule 35 motion.
A. Preservation
A s a preliminary matter, we address the State’s preservation argument. The State contends that Connor’s Fourth Amendment argument is not preserved for appeal because th e argument was not raised below; Connor did not respond to the State’s preservation argument. Connor’s Fourth Amendment challenge is not preserved. Generally, issues not raised below may not be considered for the first time on appeal. State v. Fodge , 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). In her Rule 35 motion, Connor did not3

argue that collection of her DNA and thumbprint impression constitute s an unreasonable search under the Fourth Amendment. Instead, Connor argue d that, since Senate Bill 1067 (the bill authorizing DNA collection for convicted felons in the State of Idaho) was not effective until a year after her arrest, the district court “lack [ed] subject matter jurisdiction” to impose such a requirement as part of her sentence. While Connor ’s Rule 35 motion include s an assert ion that a
violation of her Fourth Amendment r ight s occurred when the district court ordered her DNA to be collected, she did not support that assertion with either authority or argument. Connor’s passing reference to the Fourth Amendment in her Rule 35 motion without explaining the basis of her Fourth Amendment claim was insufficient to preserve the issue for appeal. See State v. Garcia

Rodriguez , 162 Idaho 271, 275, 396 P.3d 700, 704 (2017) (explaining that appellate court review is limited to the evidence, theories, and arguments that were present ed below); see also S tate v. Wolfe , 165 Idaho 338, 342, 445 P.3d 147, 151 (2019) ( noting that “simply stating the name of a case and a general proposition therefrom is not enough to raise every specific theory or principle
of law within it” ).
Connor’s reference to the Fourth Amendment violation within a claim that the district court lacked subject matter jurisdiction is insufficient to preserve the Fourth Amendment arguments
raised for the first time in this Court. Accordingly, Connor’s Fourth Amendment argument s are not preserved.
B. Rule 35 Even if Connor’s Fourth Amendment challenge to the post

- conviction collection of her DNA is preserved for appeal, Rule 35 is not the appropriate vehicle for her argument. A motion to correct an illegal sentence may be brought at any time. I.C.R. 35(a). However, Rule 35 ( a ) is a narrow rule, and because an illegal sentence may be corrected at any time, the authority conferred by Rule 35 ( a ) should be limited to uphold the finality of judgments. State v. Farwell , 144 Idaho 732, 735, 170 P.3d 397, 400 (2007)

. In the context of Rule 35(a)
, t he term “ illegal sentence ” 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. State v. Clements , 148 Idaho 82, 87, 218 P.3d 1143, 1148 (2009)

. The purpose of Rule 35 ( a ) is to allow courts to correct illegal sentences, not to reexamine alleged errors occurring at tr ial or before the imposition of sentence. State v. Wolfe , 158 Idaho 55, 65, 343 P.3d 497, 507 (2015) . Therefore, Rule 35 ( a ) only applies to4

a narrow category of cases in which the sentence imposes a penalty that is simply not authorized by law. Clements , 148 Idaho at 86, 218 P.3d at 1147. As noted, in the district court Connor argued that her sentence is illegal because the district court did not have “subject matter jurisdiction” to order collection of her DNA

. The district court denied Connor’s Rule 35 motion because the “requirement to provide a DNA sample/thumbprint were not in error and [were], in fact, required for the [c]ourt to impose pursuant to Idaho Law. I.C. §§ 18

- 8005, 18

- 309.” On appeal, Connor argues the district court erred, claiming her “sentence is illegal because the ordered intrusion into [ her ] person and the seizure of her bodily fluids to obtain a DNA sample implicated her Fourth Amendment right to be secure in her person and was
unreasonable.” However, resolving Connor’s Fourth Amendment arguments requires significant factual findings that cannot be determined from the face of the judgment

-- i.e., whether a search occurred, whether a search was unreasonable, or whether an exception to the warrant requirement applied. See Miller v. Idaho State Patrol , 150 Idaho 856, 865, 252 P.3d 1274, 1283 (2011) (holding that “determining whether a bodily intrusion was unreasonable is a particularly fact

- sensitive inquiry”). Such an inquiry exceeds the scope of a trial court’s authority under Rule 35. See
Clements , 148 Idaho at 87, 218 P.3d at 1148. Consequently, Connor has failed to show that the district court erred in denying her Rule 35 motion.
IV.
CONCLUSION
Connor ’s Fourth Amendment arguments are not preserved and , even if preserved, they are not properly resolved in the context of a Rule 35 motion. Consequently, Connor has failed to show
error in the denial of her motion
, and the district court’s order denying her Rule 35 motion is
affirmed. Chief Judge GRATTON and Judge HUSKEY, CONCUR

.