1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 41862

STATE OF IDAHO ,
Plaintiff

- Respondent ,

v.

MURRAY CASEY CARTER ,
Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) 2014 Opinion No. 106

Filed: December 17, 2014
Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Cheri C. Copsey , District Judge.

Order denying I.C.R. 35 motion for reduction of sentence, affirmed

. Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn , Deputy Appellate Public Defender, Boise, for appellant

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

________________________________________________ MELANSON, Judge Murray Casey Carter appeals from district court ’ s order denying his I.C.R. 35 motion for reduction of his sentence. He argues that the district court abused its discretion by denying the motion and by denying his request for appointment of counsel. For the reasons set forth below,
we affirm.
I.
FACTS AND PROCEDURE Carter was charged with felony eluding an officer, I.C. § 49

- 1401; drivin g under the influence (DUI), I.C. §§ 18

- 8004 and 18

- 8005(4); and driving without privileges (DWP),
I.C. § 18

- 8001(3). Pursuant to a plea agreement, Carter pled guilty to felony eluding an officer and DUI; in exchange, the state dismissed the DWP and agreed to recommend a unified sentence of no more than five years, with a minimum period of confinement of two years, for felony2 eluding an officer . The state would also recommend that any sentence for the DUI run concurrently. Carter was free to recommend a reduced sentence. The district court accepted
Carter ’ s guilty plea and imposed a unified sentence of five years, with a minimum period of confinement of one year, for felony eluding and a concurre nt unified sentence of one year for
second offense DUI. Carter filed a pro se Rule 35 motion for reduction of only his sentence for felony eluding
an officer and a contemporaneous pro se motion for appointment of counsel. The district court
denied the r equest for appointment of counsel, finding that the Rule 35 motion was not a proceeding that a reasonable person with adequate means would be willing to bring at his or her own expense and, therefore, was frivolous. The district court subsequently denied Carter ’ s Rule 35 motion. Carter appeals.
II.
ANALYSIS Carter claims that the district court erred in denying his request for appointment of counsel. Alternatively, he argues that the district court abused its discretion in denying his
Rule 35 motion for reduction of his sentence.
A. Appointment of Counsel Carter argues that the district court erred in denying his request for appointment of counsel on the grounds that his Rule 35 motion was frivolous. This, he claims, is because the
district court ’ s decision was based on a misstatement of the facts. Specifically, Carter contends that the district court mistakenly believed that he and the state had agreed to a sentencing recommendation, while he was actually free to recommend a lesser sentence. This was base d on the following statement by the district court in its order denying Carter ’ s motion for appointment
of counsel: “ There was a plea agreement for two (2) years fixed, with three (3) years indeterminate on Count I [eluding]; the Court actually reduced the fixed time to one (1) year. ” A criminal defendant has a right to counsel at all critical stages of the criminal process, including pursuit of a Rule 35 motion. I.C. §§ 19

- 851, 19

- 852; I.C.R. 44; State v. Wade , 125 Idaho 522, 523, 873 P.2d 167, 168 (Ct. App. 1994). Although a defendant has a right to hire a private attorney in a Rule 35 proceeding, a trial court may deny a request for appointment of counsel if the motion is not a proceeding that a reasonable person with adequate means would be willing t o bring at his or her own expense and is
, therefore
, a frivolous proceeding. I.C. § 19

-3 852(2)(c) 1 ; Wade , 125 Idaho at 523, 873 P.2d at 168. Thus, a defendant may be denied appointment of counsel to assist in pursuing a Rule 35 motion if the trial court f inds the motion
to be frivolous. Wade , 125 Idaho at 523

- 24, 873 P.2d at 168

- 69. Whether a motion is frivolous is a question of law that we freely review. Id. at 525, 873 P.2d at 170. In presenting a Rule 35 motion, a defendant must show that the sente nce 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). Thus, any
colorable merit to a Rule 35 motion must arise from new or additional information presented in the motion or accompanying documentation that would create a basis for reduction of the

sentence. Wade , 125 Idaho at 525, 873 P.2d at 170. As a result, a Rule 35 motion that does not present such new informatio n is not one that a reasonable person with adequate means would bring before the district court at his or her own expense and is, therefore, frivolous. Assuming, without deciding, that the district court relied on the clearly erroneous fact Carter suggests in determining that his Rule 35 motion was frivolous, whether a motion is frivolous for purposes of appointment of counsel is a question of law that we review de novo.
See i d. Moreover, we may still sustain a correct legal ruling in a criminal case, eve n if based upon incorrect facts, if the clearly established record supports that ruling. Cf. State v. Pierce , 107 Idaho 96, 102, 685 P.2d 837, 843 (Ct. App. 1984). Thus, we set aside the district court ’ s allegedly erroneous factual determination regardin g the plea agreement, and we review whether
Carter ’ s Rule 35 motion was frivolous in light of the clearly established factual record.
After a review of the record in this case , we conclude that Carter ’ s Rule 35 motion was, indeed, frivolous. Carter ’ s mo tion was not supported by new information that would have
warranted a reduction of his sentence. Carter asserts that the new information he provided was that he had been regularly attending Alcoholics Anonymous, Narcotics Anonymous, and other

recovery mee tings while awaiting transfer to the prison therapeutic community. However, there is no indication that this information would provide a basis for reducing Carter ’ s sentence. On the contrary, the district court noted during sentencing that Carter had previously participated in treatment and recovery services, but that treatment

-- especially in the community

-- had “ not

1 The statutory provision allowing for appointment of counsel in post

- judgment proceedings was formerly codified at I.C. § 19

- 852(b)(3). Effective July 2013, that provision was recodified as I.C. § 19

- 852(2)(c). See 2013 Idaho Sess. Laws, ch. 220, § 2.4 accomplished anything ” and Carter remained a “ hig h risk ” to reoffend. Indeed, the sentence specifically contemplated and intended for Carter to participate in “ intensive treatment ” programming while incarcerated; to that end, the district court declined to follow the state ’ s recommended fixed portion of the sentence , reducing it from two years to one year to allow Carter to enter the therapeutic community sooner. The district court also noted that, because of
Carter ’ s repeated failures in treatment in the past, treatment in the community while on probat ion was not an option, as it sent the wrong message and presented an undue risk that he would recidivate. Accordingly, the indeterminate portion of the state ’ s proposed sentence was increased from three years to four years. Although Carter ’ s voluntary pa rticipation in twelve

step and recovery meetings is laudable, it does not change the clear purpose of the

sentence

-- having Carter receive intensive treatment while incarcerated. Carter ’ s efforts do not constitute new information warranting a reduction of his sentence, as they do not address or fulfill the purpose of the sentence imposed by the district court . As a result, even assuming the district court made a clear factual error, the district court ’ s legal conclusion that Carter ’ s Rule 35
motion was fri volous was correct and was supported by the record in this case.
B. Rule 35 Motion Alternatively, Carter argues that the district court abused its discretion by denying his Rule 35 motion because it mistakenly believed that its review of the original sentence was limited to the fixed portion of the sentence. A Rule 35 motion for reduction of sentence 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. Allb ee , 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App. 1989). We will not review a defendant ’ s underlying sentence for excessiveness when the defendant has appealed only the grant or denial of his Rule 35 motion unless the motion was supported by new evidence tending to show that the original sentence was excessive. State v.
Farwell , 144 Idaho 732, 735, 170 P.3d 397, 400 (2007); Huffman , 144 Idaho at 203, 159 P.3d at 840. In conducting our review of the grant or denial of a Rule 35 motion, we consider the ent ire 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); State v. Lopez , 106 Idaho 447, 449

- 51, 680 P.2d 869, 871

- 73 (Ct. App. 1984).
When r eviewing a sentence, we presume that the fixed portion of the sentence will be the
defendant ’ s probable term of confinement. State v. Oliver , 144 Idaho 722, 726, 170 P.3d 387,5 391 (2007). Carter contends that the district court invoked a form of this pro position that has
been “ expressly disavowed ” by the Idaho Supreme Court. See State v. Hayes , 123 Idaho 26, 27, 843 P.2d 675, 676 (Ct. App. 1992) (stating that “ the fixed portion of a sentence imposed under the Unified Sentencing Act is treated as the term of confinement for sentence review purposes ” ). As a result, he argues, the district court abused its discretion because it used the allegedly erroneous proposition of law in Hayes to govern consideration of Carter ’ s Rule 35 motion. More specifically, he alleges that the district court viewed this proposition as limiting its review to the determinate portion of Carter ’ s sentence, which he claims is shown by the district court ’ s finding
that “ a one

- year fixed sentence for Eluding . . . is lenient consideri ng the facts of this crime and is well within the statutory sentence guidelines. ”
Carter cites to Huffman for support. In Huffman , the defendant argued that the Idaho Supreme Court had never adopted language used by this Court in State v. Sa nchez , 115 Idaho 776, 769 P.2d 1148 (Ct. App. 1989) that indicated that we treat the fixed portion of a sentence as the term of confinement for review purposes under the Unified Sentencing Act. Thus, Huffman argued, the Court should not adopt the test enunciated in State v. Herrera , 130 Idaho 839, 840, 949 P.2d 226, 227 (Ct. App. 1997), in which we elaborated on Sanchez and explained that we would review the indeterminate portion of a defendant ’ s sentence only upon a showing of

“ special circumstances. ” However, the Court stated that Huffman ’ s argument incorrectly
assumed that the “ special circumstances ” test derived from a refusal to review a defendant ’ s aggregate sentence, which the Court had never held. Huffman , 144 Idaho at 202

- 03, 159 P.3d at
839

- 40. The Court then denied review of Huffman ’ s attempt to alter the standard of review for Rule 35 motions because it was not properly before the Court on appeal. Id. at 203, 159 P.3d at
840.
The Court ’ s decision in Huffman is not at odds with the standard this Court enunciated in Sanchez . In Sanchez , we stated: In those cases [under the Unified Sentencing Act,] the minimum period [of confinement] generally will be treated as the probable measure of confinement for the purpose of sentence review. By focusing on this period, we do not wholly disregard the aggregate length of the sentence , nor do we suggest that a prisoner will be entitled to parole when the minimum period has elapsed; but we do recognize that he [or she] will be eligible for parole at that tim e.6 Sanchez , 115 Idaho at 777, 769 P.2d at 1149 (emphasis added). Thus, we d o not limit our review
of a defendant ’ s sentence to only the determinate portion; we simply focus our review on that portion as a practical matter. Instead, Huffman implicitly reje cted the later requirement of showing “ special circumstances, ” as set out in Herrera , before an indeterminate portion of a sentence could be reviewed. The Court further clarified its position on this issue in State v. Arthur , 145 Idaho 219, 177 P.3d 966 ( 2008) . There, the Court stated the following: Until recently, confusion existed as to the standard of review applied in sentence review based on dicta from State v. Herrera

. . . and as applied by the Court of Appeals in some cases. However, in State v. Huffman the Court addressed the apparent confusion surrounding the standard of review. Huffman presented a nearly identical argument to the one Arthur presents here, arguing that the Court should refuse to adopt the “ special circumstances ” test utilized b y the Court of Appeals and instead always review both the determinate and indeterminate portion of a sentence. However, this Court pointed out we had never held we would not review the aggregate sentence to see if it was reasonable under the facts of a ca se when a sentence is announced. Then, in State v. Oliver
, the Court made it abundantly cl ear that it reviews a defendant ’ s entire sentence for an abuse of discretion. Additionally, the Court noted that a defendant challenging his [or her] sentence on appeal “ need not show special circumstances in order for the appellate court to review the entire sentence, including the indeterminate portion. ”
Arthur
, 145 Idaho at 223, 177 P.3d at 970 (citations omitted). This clarification was f ollowed by
the Court ’ s reaffirmation of the well

- established standard that we presume the fixed portion of a
sentence to be the defendant ’ s probable term of confinement. Id . This, the Court explained, is
because whether a defendant serves longer than the fixed portion of the sentence is a matter left to the sole discretion of the parole board

. Id. Thus, the only proposition that the Idaho Supreme
Court has “ expressly disavowed ” is the requirement of showing “ special circumstances ” when requesting review of the indeterminate portion of a sentence. The district court did not rely on that proposition here. Instead, the district court cited Hayes for the basic presumption reaffirmed in Oliver and Arthur . The district court did not require Carter to provide “ special circumstances ” justifying review of the indeterminate portion of his sentence; instead, it merely focused on Carter ’ s fixed sentence as the probable term of confinement and noted that it was lenient given the facts of the case. The district cour t then
summarized the basis for the original sentence:7 In arriving at this sentence, the Court considered Carter ’ s character and any mitigating or aggravating factors. The Court, however, found there were several aggravating factors in this case suggestin g the need for this sentence. In particular, it is clear that Carter needs treatment. The Court ’ s decision focused on rehabilitation and protection of society. The facts of this crime and his criminal history suggested the need for this sentence in orde r to properly rehabilitate him. This incident began just after seven o ’ clock in the evening and ending just after ten o ’ clock. It began when Carter broke out the rear window of his girlfriend ’ s car and called and threatened to kill her. He had previou sly threatened her. He then drove to another house. He was extremely intoxicated and the police went to investigate. He spilled beer all over himself. He threatened to shoot another woman who was answering a call from his girlfriend. He then offered a nother person $1000 to beat up his girlfriend. The officer located him driving and Carter refused to stop and fled. He drove . . . at speeds of approximately 80 m.p.h. He failed to negotiate a right turn . . . causing his car to run over a stop sign and slide off the road. His blood alcohol was .135/.116. He put a number of people at risk.
The district court recounted Carter ’ s criminal record, which included an extensive juvenile record involving drugs, alcohol, and a conviction for battery that was am ended from lewd conduct with a minor child under sixteen years of age; a felony conviction for forgery in 2002; a prior DUI conviction in 2008; and several other alcohol

- based offenses. Although the district court did not specifically discuss the indeterm inate portion of Carter ’ s sentence, this does not indicate that the district court reviewed only the fixed portion of Carter ’ s sentence or understood the law it cited as requiring such a limited review. On the contrary, the district court ’ s discussion
add ressed the purpose of the entire sentence in a manner similar to how it approached its original sentencing decision, noting that the sentence was designed to promote rehabilitation and fulfilled the sentencing objectives. As a result, Carter ’ s contention that the district court abused its discretion by relying on an erroneous proposition of law is incorrect. Carter does not otherwise challenge the denial of his Rule 35 motion and, as previously noted, did not provide any new or
additional information in h is Rule 35 motion justifying review of his underlying sentence for
excessiveness. Thus , Carter has failed to establish that the district court abused its discretion.
III.
CONCLUSION Carter has failed to show that he was entitled to appointment of counsel or that the district court abused its discretion in denying his Rule 35 motion. Accordingly, the district court ’ s order denying Carter ’ s Rule 35 motion is affirmed. Judge LANSING and Judge GRATTON, CONCUR

.