               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 45081

STATE OF IDAHO,                                )
                                               )    Filed: July 3, 2018
       Plaintiff-Respondent,                   )
                                               )    Karel A. Lehrman, Clerk
v.                                             )
                                               )    THIS IS AN UNPUBLISHED
DALE FRANCIS CALDRER,                          )    OPINION AND SHALL NOT
                                               )    BE CITED AS AUTHORITY
       Defendant-Appellant.                    )
                                               )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Richard D. Greenwood, District Judge.

       Judgment of conviction, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Andrea W. Reynolds,
       Deputy Appellate Public Defender, Boise, for appellant.

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

GRATTON, Chief Judge
       Dale Francis Caldrer appeals from his judgment of conviction, challenging the district
court’s failure to make a ruling on whether he provided good cause or excusable neglect for his
late-filed motion to suppress. We affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Caldrer was indicted by a grand jury for enticement of a child through the use of the
Internet or other communication device, Idaho Code § 18-1509A; sexual abuse of a child under
the age of sixteen years, I.C. § 18-1506(1)(d); and disseminating material harmful to minors,
I.C. § 18-1515. The State filed an information part II alleging Caldrer was a persistent violator
of the law, I.C. § 19-2514. Caldrer pled not guilty and was appointed a public defender. The
court set a jury trial for August 29, 2016. Approximately three weeks before trial, however,


                                               1
Caldrer retained a private attorney who requested a continuance of the trial date. The district
court granted the motion and reset the trial for January 30, 2017.
       On December 27, 2016, Caldrer filed a motion to suppress statements he had made while
in police custody. The State filed an objection to the suppression motion, arguing the motion
was untimely and should be denied on the merits. At the pretrial conference, Caldrer’s counsel
explained to the court that he had inadvertently put the wrong case number on the motion for
hearing and thus a hearing on the motion to suppress had not been scheduled. Caldrer’s counsel
then asked the court to calendar a hearing on the motion to suppress. The court asked why the
motion to suppress had been filed late. Caldrer’s attorney replied:
               It’s my fault, Your Honor. And I had done--I had done some legal
       research, and I’d gone over it with my client. And we came to the conclusion,
       after we discussed everything, that we need to go forward with that. The issue
       with it is--rather, is whether my client invoked his right to an attorney because he
       said [“I got to like get an attorney or something if things go that far” and “I will
       get an attorney and whatever I got to do”], within about a minute-and-a-half span,
       in the interview.
The court stated that it had no time on its calendar to hear the motion before trial.              The
prosecutor then added, “Your Honor, I would note that his explanation, I don’t think, rises to
good cause under the law, so I assume you just would not hear it.” The court replied that it
would have to make a ruling on that at some point and thereafter ended the pretrial conference by
stating, “[Y]our motion is untimely and I am not going to be able to hear it. It’s that simple.”
       On the first day of trial, Caldrer’s attorney asked the court to “give a ruling as to why this
suppression motion was not heard.”         The court replied that it had declined to hear the
suppression motion for two reasons: (1) the motion was untimely, and (2) the court did not have
time on its calendar to hear the motion. The prosecutor then added, “[The] motion to suppress
was not ever noticed up, it wasn’t timely, and then it was his job to show good cause. And he, at
the last hearing, simply said he just didn’t get around to it and it was late. He didn’t give any
good cause.” The court concluded, “I’ll let the record stand on that,” and the trial proceeded.
       Ultimately, the jury found Caldrer guilty on all three counts of the indictment, and
Caldrer admitted to being a persistent violator. The court imposed concurrent twenty-five-year
sentences with ten years determinate for enticement of a child and sexual abuse of a child, and a
concurrent sentence of one year for disseminating material harmful to minors. Caldrer timely
appeals.


                                                 2
                                                II.
                                           ANALYSIS
       Caldrer asserts the district court abused its discretion by failing to consider his late-filed
motion to suppress without ruling on whether he presented good cause or excusable neglect for
the late filing. Motions to suppress evidence filed under Idaho Criminal Rule 12(b) “must be
filed within 28 days after the entry of a plea of not guilty or seven days before trial whichever is
earlier.” I.C.R. 12(d). However, the trial court has discretion to “shorten or enlarge the time
and, for good cause shown or for excusable neglect, may relieve a party of failure to comply with
this rule.” Id.; State v. Glenn, 156 Idaho 22, 23, 319 P.3d 1191, 1192 (2014). When a trial
court’s discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered
inquiry to determine whether the lower court correctly perceived the issue as one of discretion,
acted within the boundaries of such discretion and consistently with any legal standards
applicable to the specific choices before it, and reached its decision by an exercise of reason.
State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
       It is undisputed that Caldrer did not timely file his motion to suppress pursuant to
Rule 12(d) as he filed it more than twenty-eight days after he pled not guilty. 1 Nevertheless,
Caldrer argues that the district court abused its discretion by failing to rule on whether he
presented good cause or excusable neglect for the late filing. According to Caldrer, the record
shows that the district court never ruled on whether he presented good cause or excusable neglect
and thus, the court simply refused to hear his motion to suppress due to its busy calendar. We
disagree.
       Caldrer relies, in part, on the following passage from State v. Dice to argue the district
court acted outside the boundaries of its discretion by not hearing the motion:
       The district court should have entertained an explanation by [defense] counsel for
       the delay [in filing a motion to suppress] and then should have determined
       whether good cause or excusable neglect was shown based on the reasons given.
       If no good cause or excusable neglect was established to the satisfaction of the
       district court, the motion should not have been heard.
State v. Dice, 126 Idaho 595, 597, 887 P.2d 1102, 1104 (Ct. App. 1994). However, this Court
stated in that same paragraph: “Idaho Criminal Rule 12(d) clearly requires either good cause or

1
        Caldrer pled not guilty on April 5, 2016. He filed the motion to suppress on
December 27, 2016. Thus, his motion to suppress was filed more than eight months after he pled
guilty and more than seven months after the filing deadline imposed by Rule 12(d) had passed.
                                                 3
excusable neglect to be shown by the party who has missed the prescribed deadlines.” Id.
Because he missed the prescribed deadline, Caldrer was necessarily required to make a showing
of good cause or excusable neglect before he would be entitled to a ruling on the issue and before
the court could relieve him of his failure to comply with the rule.
       The record in this case is devoid of any indication that Caldrer provided the district court
with a basis for making a ruling on the issue of good cause or excusable neglect. Caldrer did not
file a motion to enlarge the time to file the suppression motion, nor did he address good cause or
excusable neglect for the late filing in his motion to suppress. At the pretrial conference the
court inquired as to why the motion was filed late, thus providing an opportunity for Caldrer to
orally show good cause or excusable neglect for the late filing. Caldrer’s attorney responded:
               It’s my fault, Your Honor. And I had done--I had done some legal
       research, and I’d gone over it with my client. And we came to the conclusion,
       after we discussed everything, that we need to go forward with that. The issue
       with it is--rather, is whether my client invoked his right to an attorney because he
       said [“I got to like get an attorney or something if things go that far” and “I will
       get an attorney and whatever I got to do”] 2, within about a minute-and-a-half
       span, in the interview.
This statement merely expresses an acceptance of fault for the late filing and contains a brief
summary of the arguments made in the motion to suppress, but it does not address the issues of
2
        We note that the district court likely would have denied the motion to suppress even if it
had determined Caldrer had shown good cause or excusable neglect for the late filing. Caldrer
was taken into custody, read his Miranda rights, signed a waiver form, and participated in an
interview with two detectives before stating, “I got to like get an attorney or something if things
go that far” and “I will get an attorney and whatever I got to do.”
        Although an individual’s right to cut off questioning must be “scrupulously honored,”
police officers are only required to cease questioning if the invocation of Miranda rights is clear
and unequivocal. State v. Payne, 146 Idaho 548, 558-59, 199 P.3d 123, 133-34 (2008). In order
to effectively invoke the right to counsel, the suspect must articulate “his desire to have counsel
present sufficiently clearly that a reasonable police officer in the circumstances would
understand the statement to be a request for an attorney. . . . If the suspect’s statement is not an
unambiguous or unequivocal request for counsel, the officers have no obligation to stop
questioning him.” Davis v. United States, 512 U.S. 452, 459-62 (1994). In State v. Eby, this
Court held that the statement “I’ve got an attorney,” was not an unambiguous invocation of the
right to counsel. State v. Eby, 136 Idaho 534, 537, 37 P.3d 635, 628 (Ct. App. 2001).
        Like Eby’s statement, both of Caldrer’s statements are equivocal. In his first statement,
Caldrer equivocated by conditioning his intent to get an attorney on how far “things go.” Thus,
his present intent for counsel was rendered ambiguous. Likewise, the second statement is
equivocal. Caldrer spoke in future tense suggesting that he would seek out an attorney in the
future, but leaving his present intentions ambiguous.


                                                 4
good cause or excusable neglect. Thus, the statement does not provide a basis for a ruling from
the district court on that issue.
        Furthermore, Caldrer did not alert the district court to the good cause or excusable
neglect exception, rebut the prosecutor’s argument that he had failed to make the requisite
showing, or request a ruling on the issue.        As Caldrer concedes in his brief, it was the
prosecutor--not Caldrer--who ultimately alerted the district court to the good cause or excusable
neglect exception contained in Rule 12(d). Caldrer did not rebut or address the prosecutor’s
arguments made at the pretrial conference and on the morning of trial that Caldrer had failed to
provide “any good cause” for the late filing. Moreover, on the morning of trial, Caldrer’s
attorney asked for clarification and a ruling as to why the suppression motion had not been
heard, but he did not request a ruling on the issue of good cause or excusable neglect. Indeed, he
never requested such a ruling below.
        Notably, Caldrer also failed to properly notice the suppression motion for hearing by
putting the incorrect case number on the motion for hearing. Because Caldrer’s attorney failed to
properly notice the suppression motion for hearing, no hearing on the motion was calendared.
This error affected the efficient and proper operation of the court system 3 and compounded the
error of the untimely filing.
        Finally, even on appeal, Caldrer does not argue that he demonstrated good cause or
excusable neglect for the untimely filing of his suppression motion below, he only challenges
whether the district court made such a ruling. Although Caldrer had ample opportunity to make
the requisite showing below, he failed to do so. For these reasons, the district court did not abuse
its discretion by refusing to hear the untimely motion without first ruling on whether Caldrer had
shown good cause or excusable neglect.
                                                III.
                                         CONCLUSION
        Caldrer did not provide the district court with a basis for making a ruling on the issue of
good cause or excusable neglect. Accordingly, we affirm Caldrer’s judgment of conviction.
        Judge GUTIERREZ and Judge HUSKEY CONCUR.


3
        A court considering a motion to extend a filing deadline may consider the effect that its
decision would have on the efficient operation of the court system. State v. Irving, 118 Idaho
673, 675, 799 P.2d 471, 473 (Ct. App. 1990).
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