1

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 44493

STATE OF IDAHO,

Plaintiff-Respondent,

v.

BRANDON GRANT GOULD,

Defendant-Appellant.

)

)

)

)

)

)

)

)

)

)

2017 Unpublished Opinion No. 487

Filed: June 8, 2017

Stephen W. Kenyon, 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THIS IS AN UNPUBLISHED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. Jason D. Scott, District Judge. 

Order denying motion to reconsider denial of motion to correct an 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; Kenneth K. Jorgensen, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

GRATTON, Chief Judge

Brandon Grant Gould appeals from the district court’s order denying his motion to 

reconsider the denial of his motion to correct an illegal sentence. We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

A grand jury indicted Gould on one count of lewd conduct with minor child under sixteen

(Count I) and one count of sexual abuse of a child under the age of sixteen years (Count II). 

Subsequently, a jury found Gould guilty of lewd conduct with minor child under sixteen, Idaho 

Code § 18-1508. Gould was acquitted at trial of the sexual abuse of a child charge. The district 

court imposed a unified sentence of ten years with three years determinate. In an unpublished 

decision, this Court affirmed Gould’s sentence. State v. Gould, Docket No. 35797 (Ct. App.

Oct. 27, 2009). 
2

Gould filed an Idaho Criminal Rule 35(a) motion claiming his sentence was illegal 

because the indictment failed to list the names of the witnesses who testified before the grand 

jury, rendering it invalid and insufficient to confer subject matter jurisdiction over the charges. 

The district court rejected Gould’s arguments and denied his motion. This Court affirmed the 

district court. State v. Gould, Docket No. 42051 (Ct. App. Mar. 6, 2015) (unpublished). Gould 

filed a second Rule 35(a) motion to correct an illegal sentence, again contending the indictment 

was insufficient to confer subject matter jurisdiction over the charges. In the second motion, 

Gould asserted that the prosecutor engaged in misconduct by presenting to the grand jury an 

amended version of the original proposed indictment, in which Count II was changed from lewd 

conduct with a minor under the age of sixteen to sexual abuse of a child under sixteen, the charge 

of which he was ultimately acquitted. Gould contended that Count II, as amended during the 

jury proceedings, should not have been presented to the grand jury and prejudiced him in 

defending the lewd conduct with a minor charge at trial. The district court again rejected 

Gould’s arguments and denied that motion. Gould did not appeal that decision.

Thereafter, Gould filed a third Rule 35(a) motion wherein he argued that the sexual abuse

of a child charge was constructively amended during the course of the trial, thus depriving the 

district court of subject matter jurisdiction over the charges. The district court summarized the 

claim:

The alleged constructive amendment of Count II happened in one or both of two 

ways: (i) by the supposed introduction at trial of evidence of different sexual 

touching (manual-to-genital touching) than was alleged in Count II (manual-tobottom touching); and (ii) by the giving of jury instructions that did not require 

the jury to find manual-to-bottom touching to find Gould guilty as charged in 

Count II. As Gould acknowledges, though, he was acquitted of Count II. Thus, 

as he did in his second Rule 35(a) motion, he again is arguing that supposed 

improprieties with respect to Count II prejudiced him in defending against 

Count I, of which he was found guilty.

(Footnote omitted.) The district court denied the motion, noting that Gould had not shown 

grounds for relief under Rule 35(a). Gould filed a motion for reconsideration, which the district 

court denied, concluding that its previous order “adequately explains why Gould is not entitled to 

the relief he requests.” Gould appeals.
3

II.

ANALYSIS

Gould argues the district court erred when it denied Gould’s motion for reconsideration. 

The State initially asserts that this Court does not have jurisdiction to consider the merits of 

Gould’s third Rule 35(a) motion and even if it does, Gould has failed to show error in the denial 

of the motion. 

As an initial matter, the State argues that the merits of the district court’s denial of the 

Rule 35 motion is not reviewable through the motion for reconsideration. A motion allowed 

under Idaho Appellate Rule 14(a) may restart the time to appeal the denial. However, such 

motion must be made within fourteen days of the denial. Gould’s motion for reconsideration 

was not filed within fourteen days and thus, because it was untimely, did not affect the forty-two 

days in which to appeal the denial. See Dunlap v. Cassia Mem’l Hosp. Med. Ctr., 134 Idaho 

233, 236, 999 P.2d 888, 891 (2000). Since there was no timely appeal from the denial, this Court 

lacks jurisdiction to review the merits of the denial by reviewing the subsequent denial of the 

motion for reconsideration. We agree. Nonetheless, we also agree with the district court that

Gould’s motion is not proper under Rule 35(a). 

Relevant to this appeal, I.C.R. 35(a) allows a district court to correct an illegal sentence

or correct a sentence imposed in an illegal manner. State v. Huffman, 144 Idaho 201, 203, 159 

P.3d 838, 840 (2007). Generally, whether a sentence is illegal or whether it was imposed in an 

illegal manner is a question of law, over which we exercise free review. State v. Clements, 148 

Idaho 82, 84, 218 P.3d 1143, 1145 (2009) (quoting State v. Farwell, 144 Idaho 732, 735, 170 

P.3d 397, 400 (2007)). In Clements, 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. Farwell, 

144 Idaho at 735, 170 P.3d at 400. Rule 35 is not a vehicle designed to re-examine 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 86, 218 P.3d at 1147. An illegal sentence under Rule 35 is one in excess of a 
4

statutory provision or otherwise contrary to applicable law. State v. Alsanea, 138 Idaho 733, 745 

69 P.3d 153, 165 (Ct. App. 2003).

Gould asserts that a constructive amendment of the sexual abuse of a minor charge

invalidated the entire indictment and thus created a jurisdictional defect. Further, the issue of 

whether the constructive amendment of the sexual abuse charge in the indictment prejudiced him 

in defending the lewd conduct charge is a question of law. Gould also contends that the two 

bases upon which the indictment was constructively amended are clear from the face of the 

record and could be discerned without resolving significant questions of fact or holding an 

evidentiary hearing. 

In denying Gould’s third Rule 35(a) motion, the district court found that Gould “lacks a 

tenable basis for his contention that the alleged constructive amendment deprived the court of 

subject matter jurisdiction over the charges.” The district court correctly observed that “relief 

from an illegal sentence is authorized under Rule 35(a) only if the sentence’s illegality is 

apparent from the face of the record and can be discerned without resolving significant questions 

of fact or holding an evidentiary hearing.” In denying Gould’s motion, the district court 

reasoned that the issue of prejudice was a significant question of fact and, therefore, not a proper 

subject for a Rule 35(a) motion. We agree.

Following the analysis this Court undertook the first time Gould challenged his sentence 

as being illegal, the alleged defect of which Gould complains is not jurisdictional. See Gould,

Docket No. 42051.

1 Further, Gould acknowledges the ruling in State v. McIntosh, 160 Idaho 1, 

6, 368 P.3d 621, 626 (2016) in which the Idaho Supreme Court held that an improper jury 

instruction does not implicate a district court’s subject matter jurisdiction. Moreover, the district 

court did not err in finding that an illegal sentence is one that is illegal from the face of the 

record, does not involve significant questions of fact, and does not require an evidentiary 

hearing. State v. Wolfe, 158 Idaho 55, 65, 343 P.3d 497, 507 (2015). Whether the alleged 

defects in the trial proceedings as to the sexual abuse of a child charge actually prejudiced Gould 

 1 In that unpublished decision, this Court observed that defects in charging documents have 

been found to be jurisdictional in very limited circumstances which all share a common thread: 

the facts as alleged in the charging document do not amount to a crime that may be tried in Idaho 

courts. Gould does not argue that his conduct did not amount to an offense, nor that the grand 

jury lacked the authority to issue indictments, nor any other defect of a fundamental or structural 

nature.
5

as to the lewd conduct with a minor charge is a significant question of fact which would require

an examination of the record. This is especially true in light of the fact that Gould was acquitted 

of the sexual abuse charge. Therefore, Gould has shown no error in the district court’s denial of 

the motion to reconsider his Rule 35(a) motion to correct an illegal sentence.

III.

CONCLUSION

The district court’s order denying Gould’s motion for reconsideration of the denial of his 

Rule 35(a) motion to correct an illegal sentence is affirmed. 

Judge GUTIERREZ and Judge MELANSON CONCUR.