               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 44967

STATE OF IDAHO,                                 )    2018 Unpublished Opinion No. 431
                                                )
       Plaintiff-Respondent,                    )    Filed: April 20, 2018
                                                )
v.                                              )    Karel A. Lehrman, Clerk
                                                )
DANA LYDELL SMITH,                              )    THIS IS AN UNPUBLISHED
                                                )    OPINION AND SHALL NOT
       Defendant-Appellant.                     )    BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho,
       Minidoka County. Hon. Randy J. Stoker, District Judge.

       Order denying motion to correct an illegal sentence, affirmed.

       Fyffe Law; Robyn Fyffe, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GRATTON, Chief Judge
       Dana Lydell Smith appeals from the district court’s order denying his motion to correct
an illegal sentence under Idaho Criminal Rule 35(a). We affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       In March 2007, a jury found Smith guilty of grand theft, Idaho Code § 18-2407(1).
Smith received a unified sentence of fourteen years with seven years determinate. This Court
affirmed Smith’s judgment of conviction and sentence in an unpublished opinion. State v. Smith,
Docket Nos. 35216 and 35604 (Ct. App. May 20, 2009). In 2015, Smith filed a motion for
correction of an illegal sentence pursuant to I.C.R. 35 and a request for appointment of counsel.
Smith also filed a motion for a new trial. In both motions, Smith claimed his conviction and
sentence were illegal because the district court did not order a mental health evaluation to ensure
Smith was competent.      The district court denied Smith’s motions, holding that they were

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untimely. This Court affirmed the denial of Smith’s motions in an unpublished opinion. State v.
Smith, Docket Nos. 42962 and 42963 (Ct. App. April 11, 2016).
       On January 23, 2017, Smith filed another Rule 35 motion to correct an illegal sentence,
asserting that after he was determined to be incompetent he was sentenced in violation of various
statutory provisions. Smith also filed a motion for appointment of counsel and a motion for
judicial notice.   The district court entered an order taking judicial notice of the requested
documents and denying the motion to correct an illegal sentence and motion for appointment of
counsel. The district court concluded that the Rule 35 motion lacked merit and the motion for
appointed counsel “is frivolous and would not be pursued by a person with adequate means to
employ counsel.” Smith filed a motion for reconsideration and a motion to disqualify the district
judge. The district court denied these motions without a hearing. Smith timely appeals.
                                                II.
                                           ANALYSIS
       Smith argues that the district court erred when it denied Smith’s Rule 35(a) motion to
correct an illegal sentence. Pursuant to Rule 35, the district court may correct an illegal sentence
at any time. In an appeal from the denial of a motion under Rule 35 to correct an illegal
sentence, the question of whether the sentence imposed is illegal is a question of law freely
reviewable by the appellate court. State v. Josephson, 124 Idaho 286, 287, 858 P.2d 825, 826
(Ct. App. 1993).
       Smith asserts that his sentence is illegal and in violation of due process because the
district court failed to follow the statutorily mandated procedures after ordering a competency
evaluation under I.C. § 18-211. The State first asserts that Smith’s motion is barred by the
doctrine of res judicata. We agree. The doctrine of res judicata bars relitigation of issues that
have been previously decided in an action between the same litigants. See State v. Rhoades, 134
Idaho 862, 863, 11 P.3d 481, 482 (2000); State v. Beam, 115 Idaho 208, 210-11, 766 P.2d 678,
680-81 (1988). The issue of whether an action is barred by res judicata is a question of law over
which we exercise free review. Rhoades, 134 Idaho at 863, 11 P.3d at 482.
       Smith previously asserted that his sentence is illegal because he was incompetent at the
time of sentencing. Smith argues that the instant appeal presents a different question than that
addressed by this Court in the appeal of his initial Rule 35 motion. We disagree. In Smith’s
memorandum in support of his I.C.R. 35 motion, he stated:

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                This is a motion to correct an illegal sentence which violates Idaho statute.
       This Motion is brought pursuant to Idaho Criminal Rule 35(a). The District Court
       illegally imposed a sentence first because Defendant was never restored to
       competency (2) Second, the Court never order[ed] a competency hearing pursuant
       to I.C. 18-212(1) which is required after a determination of incompetency. The
       illegality of the sentence is apparent from the face of the record because Judge
       John Melanson ordered a psychological examination but Judge Barry Wood never
       ordered a competency hearing after Dr. Richard Smith determined that Defendant
       was incompetent on May 2, 2007. Therefore, the Defendant was sentenced while
       he was incompetent.
In his supporting memorandum, Smith reaffirmed that he contends his sentence is illegal because
he was found to be incompetent, and was not returned to competence when he was sentenced.
       In the appeal of the denial of Smith’s initial Rule 35(a) motion, this Court explained,
“Smith asserts that his sentence is illegal because it was imposed after he was found incompetent
and without Smith having been reevaluated to determine whether he had gained competence.”
Smith, Docket Nos. 42962 and 42963 at 5. Further, we noted that, “[c]ontrary to Smith’s
assertion, it is not clear from the face of the record that he was incompetent at the time of his
sentencing.” Id. We concluded:
                This record suggests that Smith had [a] personality disorder, not a serious
       mental illness, and does not establish that he was incompetent at the time of his
       sentencing hearing, which occurred more than two and one-half years after the
       May 2007 evaluation. Rather, whether Smith was incompetent at that time is, at
       best, an unresolved factual issue that may not be resolved on a Rule 35(a) motion.
       It follows that Smith’s sentence is not “illegal from the face of the record,” see
       [State v. Clements, 148 Idaho 82, 86, 218 P.3d 1143, 1147 (2009)], and the
       district court did not err in denying Smith’s Rule 35 motion.
Smith, Docket Nos. 42962 and 42963 at 5. Thus, because we have previously ruled that Smith’s
claim that he was incompetent when he was sentenced is a matter that may not be resolved on a
Rule 35(a) motion, he is precluded by principles of res judicata from presenting that issue in the
present Rule 35(a) motion.
       Smith’s motion fails for several other reasons. Smith’s argument on appeal changes the
issue argued in the district court from whether he was incompetent at the time he was sentenced
to whether the district court complied with statutory procedural requirements. Issues not raised
below will not be considered for the first time on appeal. State v. Adams, 138 Idaho 624, 628, 67
P.3d 103, 107 (Ct. App. 2003). Next, Smith’s argument plainly does not qualify as a claim of an
illegal sentence under Rule 35(a). Because the sentence imposed is, on its face, not in excess of
the maximum sentence allowable, the sentence is not illegal. State v. Clements, 148 Idaho 82,
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84, 218 P.3d 1143, 1145 (2009). Finally, Smith’s claim that the district court failed to comply
with statutory requirements in sentencing Smith is a claim that his sentence was imposed in an
illegal manner, not that the sentence is illegal. Under the version of Rule 35(b) in effect at the
time Smith filed his motion, a claim that a sentence was imposed in an illegal manner must be
brought within 120 days after the filing of a judgment of conviction. 1 Smith’s Rule 35 motion
was untimely under Rule 35(b).
                                                III.
                                         CONCLUSION
       Smith has not shown his sentence is illegal. The district court’s order denying Smith’s
I.C.R. 35(a) motion to correct an illegal sentence is affirmed.
       Judge GUTIERREZ and Judge LORELLO CONCUR.




1
         Effective July 1, 2017, Idaho Criminal Rule 35(b) was amended to eliminate the language
“The court may correct a sentence that has been imposed in an illegal manner within the time
provided herein for the reduction of sentence.” Although the title of the current version of the
rule still references sentences imposed in an illegal manner, the substance of the rule does not
include the illegal manner language used in the prior version of I.C.R. 35(b).
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