               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 39508

STATE OF IDAHO,                                   )     2013 Unpublished Opinion No. 462
                                                  )
       Plaintiff-Respondent,                      )     Filed: April 25, 2013
                                                  )
v.                                                )     Stephen W. Kenyon, Clerk
                                                  )
JACOB LEE LUNDAHL,                                )     THIS IS AN UNPUBLISHED
                                                  )     OPINION AND SHALL NOT
       Defendant-Appellant.                       )     BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Ronald J. Wilper, District Judge.

       Order relinquishing jurisdiction, affirmed; order denying Idaho Criminal Rule 35
       motion for reduction of sentence, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

                      Before GUTIERREZ, Chief Judge; LANSING, Judge;
                                  and MELANSON, Judge

PER CURIAM
       Jacob Lee Lundahl pled guilty to felony operating a motor vehicle while under the
influence of alcohol. Idaho Code §§ 18-8004, 18-8005(4). The district court imposed a unified
sentence of seven years, with two years determinate, but suspended the sentence and placed
Lundahl on probation. Subsequently, Lundahl admitted to violating the terms of his probation.
The district court revoked probation and executed the underlying sentence, but retained
jurisdiction. After a period of retained jurisdiction, the district court relinquished jurisdiction.
Lundahl filed an Idaho Criminal Rule 35 motion for reduction of his sentence, which the district
court denied. Lundahl then filed a motion requesting credit for time served, which was granted




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by the district court. Lundahl now appeals, contending the district court abused its discretion by
relinquishing jurisdiction and by denying his Rule 35 motion.
       Lundahl also challenges the Idaho Supreme Court’s order denying his motion to augment
the record on appeal. After the appellate record was settled, Lundahl filed a motion to augment
the record on appeal with various unprepared transcripts. The State objected, and the Idaho
Supreme Court denied the motion as to the transcripts of the probation violation hearing and
probation disposition hearing.
       Lundahl asks this Court to hold that the Idaho Supreme Court deprived him of due
process and equal protection when it denied his motion to augment the record. We do not,
however, have the authority to review and, in effect, reverse an Idaho Supreme Court decision on
a motion made prior to assignment of the case to this Court on the ground that the Supreme
Court decision was contrary to the state or federal constitutions or other law. See State v.
Morgan, 153 Idaho 618, 620, 288 P.3d 835, 837 (Ct. App. 2012). Such an undertaking would be
tantamount to the Court of Appeals entertaining an appeal from an Idaho Supreme Court
decision and is plainly beyond the purview of this Court. Id. If a motion is renewed by the
movant and new information or a new or expanded basis for the motion is presented to this Court
that was not presented to the Supreme Court, we deem it within the authority of this Court to
evaluate and rule on the renewed motion in the exercise of our responsibility to address all
aspects of an appeal from the time of assignment to this Court. Id. Such may occur if the
appellant’s or respondent’s briefs have refined, clarified, or expanded issues on appeal in such a
way as to demonstrate the need for additional records or transcripts, or where new evidence is
presented to support a renewed motion. Id.
       Lundahl has not filed with this Court a renewed motion to augment the record or
presented to this Court in his briefing any significant new facts or a new justification for
augmentation beyond that already advanced in his motion to the Supreme Court. In essence,
Lundahl asks us to determine that the Idaho Supreme Court violated constitutional law by
denying his motion. To the extent Lundahl attempts to distinguish Morgan because it involved a
challenge to a district court’s decision to revoke probation, we consider such distinction of no
effect. We adhere to our conclusion in Morgan that reviewing the denial of a motion to augment
the record by the Supreme Court is beyond the scope of our authority.




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       Lundahl had an opportunity to present his constitutional arguments to the Supreme Court,
and that Court denied his motion. He has no right to “appeal” that denial to the Idaho Court of
Appeals, and we have no authority to consider such an appeal. As such, we will not address
Lundahl’s attempt to distinguish his case from Morgan because it still falls within the challenge
to the Idaho Supreme Court’s denial of the motion to augment.
       The decision to place a defendant on probation or whether, instead, to relinquish
jurisdiction over the defendant is a matter within the sound discretion of the district court and
will not be overturned on appeal absent an abuse of that discretion. State v. Hood, 102 Idaho
711, 712, 639 P.2d 9, 10 (1981); State v. Lee, 117 Idaho 203, 205-06, 786 P.2d 594, 596-97 (Ct.
App. 1990). The record in this case shows that the district court properly considered the
information before it and determined that probation was not appropriate. We hold that Lundahl
has failed to show that the district court abused its discretion, and we affirm the order
relinquishing jurisdiction.
       A motion for reduction of sentence under Idaho Criminal Rule 35 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. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App. 1989). In
presenting a Rule 35 motion, the defendant must show that the sentence 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). Upon review of the
record, including the new information submitted with Lundahl’s Rule 35 motion, we conclude no
abuse of discretion has been shown. Therefore, the district court’s order denying Lundahl’s Rule
35 motion is affirmed.




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