771 P.2d 550

#### James D. FERRIER, Petitioner-Appellant, v. STATE of Idaho, Defendant-Respondent.

No. 17777.

Court of Appeals of Idaho.

April 3, 1989.

*887Jay P. Gaskill, Randall, Blake, Cox, Ris-ley & Trout, Lewiston, for petitioner-appellant.

Jim Jones, Atty. Gen., Myrna A.I. Stah-man, Deputy Atty. Gen., Boise, for defendant-respondent.

PER CURIAM.

James Ferrier appeals from an order of the district court denying him relief on his application under the post-conviction procedure act, I.C. § 19-4901 et seq. In his application, Ferrier sought a reduction of an indeterminate, ten-year sentence imposed for lewd conduct with a minor. We affirm.

The case comes to us with the following background. On January 31, 1985, based upon Ferrier’s plea of guilty, a judgment of conviction was entered and Ferrier received the ten-year sentence. Ferrier appealed from the judgment and, while that appeal was pending, he filed a motion with the district court under I.C.R. 35 for a reduction of the sentence. That motion, and a later motion to reconsider, were denied. Ferrier thereafter voluntarily dismissed his appeal in July, 1985. Nearly two years later, Ferrier filed his application for post-conviction relief. The petition alleged several grounds in support of his claim for relief. However, at an evidentiary hearing held on the petition, Ferrier presented evidence only on one allegation — his contention that his sentence was excessive and should be reduced. The other grounds alleged in his petition either were abandoned, were admitted to be incorrect or were conceded to be without merit.1

After hearing the evidence submitted on the excessive sentence question, the district court reached two conclusions. First, the court determined that reduction of a sentence is not a form of relief available under the post-conviction procedure act. Second, the court determined in the interest of “judicial economy” that even if the court had authority in this proceeding to entertain Ferrier’s request to reduce his sentence, the evidence did not establish that the sentencing judge2 had abused his discretion.

On appeal, Ferrier continues to assert that his sentence is excessive and was an abuse of sentencing discretion. He argues that he is entitled to relief from his sentence, under two provisions of the post-conviction procedure act, I.C. § 19-4901(a)(4) and (6). Those provisions recite:

> (а) Any person who has been convicted of, or sentenced for, a crime and who claims:

> (4) that there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;

> (б) that the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding, or remedy: may institute, without paying a filing fee, a proceeding under this act to secure relief.

After reviewing the record, we conclude that Ferrier has not demonstrated an entitlement to relief under either of those provisions. In *Ramirez v. State,*113 Idaho 87, 741 P.2d 374 (Ct.App.1987), we upheld *888the denial of relief by a district court upon a petition under the post-conviction procedure act, where the applicant alleged that his sentences were excessive. We explained:

> Post-conviction relief obviously is not a proper avenue for challenging a judge’s exercise of discretion, as opposed to his lawful authority, in sentencing. *See,*I.C. § 19-4901. Excessiveness does not equate to illegality unless an Eighth Amendment (“cruel and unusual punishment”) issue is raised. There is no such allegation here. A motion to reduce an allegedly excessive, albeit lawful, sentence may be made under Rule 35,1.C.R., within 120 days after the sentence is imposed. In this case, Ramirez timely filed, *pro se,*a “Petition Seeking Justice and Reconsider [sic] ... Resentencing.” The trial judge treated the petition as a Rule 35 motion for reduction of sentence and he denied it. Ramirez failed to appeal. The post-conviction relief applications he filed nearly five years later do not now afford us any occasion to reexamine the Rule 35 question. *Compare Almada v. State,*108 Idaho 221, 697 P.2d 1235 (Ct.App.1985).

113 Idaho at 88-89, 741 P.2d at 375-76.

Here, Ferrier’s petition did not frame any Eighth Amendment issue nor was there any evidence submitted at the hearing on Ferrier’s petition from which it could be found that his sentence violated that constitutional provision. Nor has Fer-rier identified any defect in the procedure when he was sentenced which would afford him relief in a post-conviction proceeding. Finally, it does not appear that Ferrier presented new material facts at his eviden-tiary hearing that require his sentence to be vacated in the interest of justice.

The order of the district court, denying relief under Ferrier’s post-conviction application, is affirmed.

1

. Ferrier’s other allegations included assertions that his conviction had been based upon a confession obtained in violation of his constitutional rights and that he had been denied effective assistance of counsel in several respects. In denying relief under Ferrier's application, the court specifically found that Ferrier had presented no evidence with regard to these allegations.

2

. The district judge who imposed Ferrier’s sentence was no longer in office when the post-conviction application was filed; hence, the petition was considered by another judge in the district. *894tion that had been obtained through discovery. do we see a distinction between Koubourlis doing that which he did, or releasing informa-