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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 44785

STATE OF IDAHO,

Plaintiff-Respondent,

v.

ANDREW GARRETT BARRY,

Defendant-Appellant.

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2017 Unpublished Opinion No. 665

Filed: December 14, 2017

Karel A. Lehrman, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

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

Kootenai County. Hon. Scott L. Wayman, District Judge. 

Order denying Idaho Criminal Rule 35 motion for reduction of 

sentence, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Brian R. Dickson, Deputy 

Appellate Public Defender, Boise, for appellant. 

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

General, Boise, for respondent. 

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GUTIERREZ, Judge

Andrew Garrett Barry appeals from the district court’s order denying his motion to 

continue and denying his Idaho Criminal Rule 35 motion for reduction of sentence. Barry argues 

the district court abused its discretion in denying his motion to continue the Rule 35 hearing and 

in denying his Rule 35 motion on the merits. For the reasons set forth below, we affirm.

The record reflects that on June 28, 2015, Barry went to the victims’ house to retrieve his 

dog that Barry’s estranged wife had given to the family. When S.F. opened the door, Barry 

pushed past him and demanded the return of his dog. Without warning or provocation, Barry 

attacked S.F. by punching him numerous times in the head. Continuing the assault, Barry took 

S.F. to the ground and attempted to choke him. C.F., S.F.’s wife, then grabbed a Glock 9 mm in 

an attempt to stop Barry. However, C.F. did not shoot at Barry in fear of shooting S.F. or their 
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son. Barry attempted to take the gun from C.F. and broke her foot in the process. C.F.’s son was 

able to force Barry off of S.F., breaking the son’s left pinky. Barry ultimately took the dog and 

left. The incident was reported to police and charges were filed.

Pursuant to a plea agreement, Barry pled guilty to burglary in exchange for the dismissal 

of robbery, battery, and malicious injury to property charges. The district court imposed a 

unified sentence of five years, with a minimum period of confinement of two years, on April 21, 

2016. On August 18, 2016, 119 days after judgment was entered, Barry filed an Idaho Criminal 

Rule 35 motion for reduction of sentence. At the initial Rule 35 hearing held on November 10, 

2016, Barry requested a continuance to give him an opportunity to speak to and apply with 

mental health court, which was granted. At the rescheduled hearing on December 5, 2016, Barry 

again requested a continuance to allow personnel from the mental health court more time to 

review and decide on Barry’s eligibility, which the district court denied. At the same hearing, 

Barry’s counsel renewed his motion for a continuance when Barry, then an inmate at the Idaho 

State Correctional Institution, was unavailable to appear telephonically. The district court denied 

the renewed motion but allowed Barry’s counsel to make an offer of proof as to what Barry 

would have testified. After hearing the offer of proof and argument, the district court denied 

Barry’s Rule 35 motion. Barry timely appeals. 

Barry argues the district court abused its discretion in denying his motion to continue the 

Rule 35 hearing and in denying his Rule 35 motion on the merits. We address each issue in turn.

Barry contends the district court abused its discretion by refusing to further delay its 

ruling on his Rule 35 motion until after the mental health court personnel completed review of 

Barry’s application for acceptance. The decision to grant a motion for a continuance rests within 

the sound discretion of the trial court. State v. Ransom, 124 Idaho 703, 706, 864 P.2d 149, 152 

(1993). Within this discretion is the requirement that the district court rule on a Rule 35 motion 

within a reasonable period to avoid losing jurisdiction. State v. Matteson, 123 Idaho 622, 627, 

851 P.2d 336, 341 (1993). Generally, it has been held that unless an appellant shows that his or 

her substantial rights have been prejudiced by reason of a denial of his or her motion for 

continuance, appellate courts can only conclude that there was no abuse of discretion. State v. 

Cagle, 126 Idaho 794, 797, 891 P.2d 1054, 1057 (Ct. App. 1995). 

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 
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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). A trial court must rule 

on the Rule 35 motion within a reasonable time to avoid losing jurisdiction. State v. Chapman, 

121 Idaho 351, 352, 825 P.2d 74, 75 (1992).

When a trial court’s discretionary decision in a criminal case is reviewed on appeal, the 

appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower court 

correctly perceived the issue as one of discretion; (2) whether the lower court acted within the 

boundaries of such discretion and consistently with any legal standards applicable to the specific 

choices before it; and (3) whether the lower court reached its decision by an exercise of reason. 

State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989). 

At the initial Rule 35 hearing on November 10, 2016, Barry’s counsel requested a 

continuance to allow Barry to pursue acceptance into the mental health court program, which the 

district court granted. At the rescheduled hearing on December 5, 2016, Barry’s counsel twice 

requested a continuance to allow more time for personnel from the mental health court program 

to review and act on Barry’s application and because Barry was unavailable to appear 

telephonically. The district court denied both motions; however, the district court allowed 

Barry’s counsel to make an offer proof of the testimony Barry would have given. Barry argues 

that a continuance would not have caused unreasonable delay because the circumstances causing

the new delay were out of Barry’s control and that his substantial rights were prejudiced as he 

was deprived of a meaningful opportunity to present an alternative sentencing option.

To the contrary, Barry’s counsel was given the opportunity to offer proof of Barry’s 

anticipated testimony regarding alternative treatment through mental health court. Further, Barry 

filed his Rule 35 motion 119 days after judgment was entered, one day before the 120-day 

deadline required by Rule 35. The court did not hear arguments on the motion until three months 

after the motion was filed. As the court had considered the alternative treatment plan Barry 

offered, unreasonable delay would have been caused had the district court granted Barry’s 

motion to continue at the rescheduled hearing. We conclude Barry’s substantial rights were not 

prejudiced as Barry was given an opportunity to present the alternative treatment. 
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In regard to Barry’s Rule 35 motion, the district court considered all sentencing factors 

and the possibility of alternative treatment. However, given the violent nature of the incident 

giving rise to the charges, the district court ultimately determined that protecting society would 

best be accomplished by some period of imprisonment. The facts in this case amply support the 

district court’s decision to give greater weight to the protection of society sentencing factor. 

State v. Moore, 78 Idaho 359, 363, 304 P.2d 1101, 1103 (1956) (“The primary consideration is, 

and presumptively always will be, the good order and protection of society. All other factors are, 

and must be, subservient to that end.”). The record thus reflects that treatment alternatives were 

considered by the district court at the time of sentencing, including rehabilitation. 

In conclusion, the district court did not abuse its discretion in denying Barry’s motions to 

continue the Rule 35 hearing or in denying his Rule 35 motion. Accordingly, the district court’s 

order denying Barry’s Rule 35 motion is affirmed.

Chief Judge GRATTON and Judge HUSKEY CONCUR.