               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 46289

STATE OF IDAHO,                                 )
                                                )   Filed: April 10, 2019
       Plaintiff-Respondent,                    )
                                                )   Karel A. Lehrman, Clerk
v.                                              )
                                                )   THIS IS AN UNPUBLISHED
KODY SHANE BUTCHER,                             )   OPINION AND SHALL NOT
                                                )   BE CITED AS AUTHORITY
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho,
       Minidoka County. Hon. Jonathan Brody, District Judge.

       Order denying I.C.R. 35 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.
                 ________________________________________________

                      Before GRATTON, Chief Judge; LORELLO, Judge;
                                and BRAILSFORD, Judge
                   ________________________________________________

PER CURIAM
       In 1997, Kody Shane Butcher was found guilty by a jury of first degree murder. The
district court sentenced Butcher to a determinate term of life imprisonment. Butcher appealed,
raising issues regarding his conviction and arguing that his sentence is excessive. This Court
affirmed. See State v. Butcher, 137 Idaho 125, 44 P.3d 1180 (Ct. App. 2002).
       In 2018, Butcher filed an I.C.R. 35 motion for correction of an illegal sentence, asserting
that his sentence is illegal due to violations of his due process rights at sentencing because he
was not told by his trial counsel that he did not have to speak with the pre-sentence investigator,
he was under the impression that his life sentence meant thirty years, and his counsel improperly

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waived his right to a preliminary hearing.      Additionally, Butcher asserted that exculpatory
information in the form of a neuropsychological evaluation and information regarding brain
development was not prepared and presented at sentencing. The district court denied the motion,
holding that the motion challenged the manner in which the sentence was imposed, not whether
the sentence is authorized by law, and that Butcher’s other issues were in the nature of post-
conviction relief, which was untimely. Butcher appeals, arguing that the district court erred in
denying his Rule 35 motion for correction of his sentence.
       In State v. Clements, 148 Idaho 82, 87, 218 P.3d 1143, 1148 (2009), 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. State v. Farwell, 144 Idaho 732, 735, 170 P.3d 397, 400 (2007). Rule 35
is not a vehicle designed to reexamine 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 87, 218 P.3d at 1148.
       “Mindful” of Clements and that Butcher’s motion involved questions of fact surrounding
the manner in which the sentence was imposed, he argues that the district court erred in denying
his Rule 35 motion. The record supports the district court’s finding that Butcher’s sentences are
not illegal. Therefore, the district court properly denied Butcher’s motion and his sentence is
well within the statutory maximum and is not otherwise contrary to applicable law. Accordingly,
we conclude no abuse of discretion has been shown and the district court’s order denying
Butcher’s Rule 35 motion is affirmed.




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