               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 40534

STATE OF IDAHO,                                  )     2014 Unpublished Opinion No. 382
                                                 )
       Plaintiff-Respondent,                     )     Filed: February 20, 2014
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
IAN A. NEFF,                                     )     THIS IS AN UNPUBLISHED
                                                 )     OPINION AND SHALL NOT
       Defendant-Appellant.                      )     BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Madison County. Hon. Gregory W. Moeller, District Judge.

       Order revoking probation and reinstating previously suspended unified four-year
       sentences, with two-year determinate terms, for two counts of burglary and one
       count of grand theft by possession of stolen property, affirmed.

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

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

                         Before LANSING, Judge; GRATTON, Judge;
                                  and MELANSON, Judge

PER CURIAM
       Ian A. Neff pled guilty to two counts of burglary, I.C. § 18-1401, and one count of grand
theft by possession of stolen property, I.C. §§ 18-2403(4) and 18-2407(1)(b)(1)(8). In exchange
for his guilty pleas, the state agreed not to file additional charges. The district court withheld
judgment and placed Neff on probation for a period of five years.
       Neff thereafter admitted to violating the terms of his probation.       The district court
revoked the withheld judgment and Neff’s probation and sentenced Neff to concurrent unified
terms of four years, with minimum periods of confinement of two years. The district court
suspended the sentences and placed Neff on probation. Neff admitted to violating the terms of



                                                1
this probation. The district court revoked Neff’s probation, ordered execution of the sentences,
but retained jurisdiction. Following completion of Neff’s rider, the district court suspended the
sentences and placed Neff on probation. Neff again admitted to violating the terms of his
probation, but the district court continued Neff’s probation. After this fourth period of probation,
Neff again admitted to violating the terms of his probation. The district court revoked Neff’s
probation and ordered his sentences into execution. Neff filed an I.C.R. 35 motion for reduction
of his sentences which the district court denied.
       After filing this appeal, and before assignment to this Court, Neff filed a motion to
augment the record with various transcripts from his prior probation violation proceedings. The
state objected to the augmentation, and the Idaho Supreme Court entered an order denying Neff’s
motion. On appeal, Neff argues that the Idaho Supreme Court denied him due process, equal
protection, and effective assistance of counsel when it denied his motion to augment the record
and contends that the district court abused its discretion in revoking probation, his sentences are
excessive, the district court should have sua sponte reduced his sentences upon revocation of
probation, and the district court erred in denying his Rule 35 motion for reduction of his
sentences.
A.     Denial of Motion to Augment Record
       Neff asks this Court to hold that the Idaho Supreme Court deprived him of due process,
equal protection, and effective assistance of counsel 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




                                                    2
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.
       Neff 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, Neff asks us to
determine that the Idaho Supreme Court violated constitutional law by denying his motion.
Although in Morgan we held a challenge to an Idaho Supreme Court denial of a motion to
augment the record is beyond the scope of our authority to review without a renewed motion,
Neff asserts that this Court indeed has the authority to address the due process and equal
protection issues on appeal. He claims that such authority is implicit in the grant of authority
found in Idaho Appellate Rule 108. In fact, Neff argues that a renewed motion to augment the
record cannot be made to this Court due to restrictions contained within Idaho Appellate
Rules 30 and 110.
       Rule 108(a) states that the “Court of Appeals shall hear and decide all cases assigned to it
by the Supreme Court.” The rule also contains a list of the types of cases that will not be
assigned to the Court of Appeals. See I.A.R. 108(a). Neff asserts that, because the constitutional
issues raised in his appellant’s brief do not fall within the list of cases not to be assigned to the
Court of Appeals, this Court has the authority to address the issues.          In other words, the
assignment of this case to the Court of Appeals functions as an implicit grant of authority from
the Supreme Court to review his claims about the constitutionality of the Supreme Court’s
decision to deny his request for additional transcripts.
       We recognize that Rule 108 requires this Court to decide all cases assigned by the
Supreme Court. However, we do not deem this grant of authority to be as broad as Neff would
interpret it. Idaho Code Section 1-2402 states this Court is subordinate to the Idaho Supreme
Court. Idaho Code Section 1-2403 further states this Court is subject to administration and
supervision by the Supreme Court pursuant to Article 5, Section 2 of the Idaho Constitution.
When read in conjunction with I.C. § 1-2406(1), which closely mirrors the wording in Rule 108, 1



1
       Idaho Code Section 1-2406(1) provides:

              Any provision of law to the contrary notwithstanding, the Idaho court of
       appeals shall have jurisdiction to hear and to decide all cases assigned to it by the

                                                  3
we must conclude, as we did in Morgan, that it is plainly beyond our scope of authority to review
a decision made by the Supreme Court before assignment of the case to this Court. We will not
address the issue of a denied motion to augment the record made before the Supreme Court
absent some basis for renewing the motion. As we have previously stated, this may occur via a
renewed motion with new evidence to support it filed with this Court, or the presentation of
refined, clarified, or expanded issues on appeal that demonstrates the need for additional records
or transcripts, in effect renewing the motion.
       This brings us to Neff’s argument that a renewed motion to augment the record cannot be
made to this Court due to restrictions contained within Idaho Appellate Rules 30 and 110. Rule
30(a) reads as follows:
               Any party may move the Supreme Court to augment or delete from the
       settled reporter’s transcript or clerk’s or agency’s record. . . . Any party may
       within fourteen (14) days after service of the motion, file a brief or memorandum
       in opposition thereto. Unless otherwise expressly ordered by the Supreme Court
       such motion shall be determined without oral argument. The reporter’s transcript
       and clerk’s or agency’s record may also be augmented or portions deleted by
       stipulation of the parties and order of the Supreme Court. The filing of a motion
       to augment shall not suspend or stay the appellate process or the briefing
       schedule.
Additionally, Rule 110 provides:
               All motions, petitions, briefs and other appellate documents, other than the
       initial notice of appeal, shall be filed with the Clerk of the Supreme Court as
       required by the Idaho Appellate Rules with the court heading of the Supreme
       Court of the State of Idaho as provided by Rule 6. There shall be no separate
       filings directed to or filed with the Court of Appeals. In the event of an
       assignment of a case to the Court of Appeals, the title of the proceeding and the
       identifying number thereof shall not be changed except that the Clerk of the
       Supreme Court may add additional letters or other notations to the case number so
       as to identify the assignment of the case. All case files shall be maintained in the
       office of the Clerk of the Supreme Court.
Neff argues that these rules function to require all motions to be filed with the Supreme Court
and states he is “not aware of any court rule which allows a party to an appeal to file a motion




       Idaho supreme court; provided, that the supreme court shall not assign cases
       invoking the supreme court's original jurisdiction, nor appeals from imposition of
       sentences of capital punishment in criminal cases, nor appeals from the industrial
       commission, nor appeals from the public utilities commission.

                                                 4
directly with the Court of Appeals.” Rather, he contends a filing of a renewed motion to
augment the record is expressly prohibited by the rules.
         We reject that interpretation of the rules because we recognize this to be contrary to the
grant of authority in Idaho Appellate Rule 101. Rule 101 provides that the “Idaho Appellate
Rules shall apply to all proceedings in the Court of Appeals as well as the following rules.” By
way of Rule 101, this Court also has authority to entertain motions to augment the record as
provided by Rule 30 after the case has been assigned to this Court. Moreover, if we were to
accept Neff’s interpretation, it would result in a lack of authority of this Court to entertain any
motions. Idaho Appellate Rule 32(c), applicable to the Court of Appeals via Rule 101, allows
any other motions permitted under the rules, other than a motion to dismiss, to be made at any
time, before or after the case is set for oral argument. By way of that authority, this Court
routinely rules on motions such as motions for continuance, motions regarding briefing
(including motions to join briefing, file supplemental briefing, exceed the page limits, revise a
brief, request an extension of time to file a brief, or request permission to file a late brief),
motions to expedite the appeal, motions to withdraw as counsel, motions for a stay of
proceedings, motions to augment the record, renewed motions to augment the record, and
motions to allow or to vacate oral argument. Under the Idaho Appellate Rules, we have the
authority to review and rule on motions made by a party after the case has been assigned to this
Court.
         In sum, 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. If a party files a
renewed motion after the case assignment to this Court and presents new information or
justification for the motion, we have the authority to rule on the motion.
         Neff 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
Neff’s attempt to distinguish his case from Morgan, based on his appeal from the sentences,
because it still falls within the challenge to the Idaho Supreme Court’s denial of the motion to
augment.




                                                 5
B.     Probation Revocation and Review of Sentence and Rule 35 Motion
       Neff contends that his sentences are excessive, the district court should have sua sponte
reduced his sentences upon revocation of probation, and the district court erred in denying his
Rule 35 motion for reduction of his sentences.
       Sentencing is a matter for the trial court’s discretion. Both our standard of review and the
factors to be considered in evaluating the reasonableness of the sentence are well established and
need not be repeated here. See State v. Hernandez, 121 Idaho 114, 117-18, 822 P.2d 1011, 1014-
15 (Ct. App. 1991); State v. Lopez, 106 Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct. App.
1984); State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). When reviewing
the length of a sentence, we consider the defendant’s entire sentence. State v. Oliver, 144 Idaho
722, 726, 170 P.3d 387, 391 (2007).
       When we review a sentence that is ordered into execution following a period of
probation, we will examine the entire record encompassing events before and after the original
judgment. State v. Hanington, 148 Idaho 26, 29, 218 P.3d 5, 8 (Ct. App. 2009). We base our
review upon the facts existing when the sentence was imposed as well as events occurring
between the original sentencing and the revocation of probation. Id. Applying these standards,
and having reviewed the record in this case, we cannot say that the district court abused its
discretion. Thus, this Court will consider the elements of the record before the trial court that are
properly made part of the record on appeal and are relevant to the defendant’s contention that the
trial court should have reduced the sentence sua sponte upon revocation of probation. State v.
Morgan, 153 Idaho 618, 621, 288 P.3d 835, 838 (Ct. App. 2012).
       A motion for reduction of sentence under I.C.R. 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). In conducting our
review of the grant or denial of a Rule 35 motion, we consider the entire 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); Lopez, 106 Idaho at 449-51, 680 P.2d at




                                                 6
871-73. Having reviewed the record, Neff has not shown that the district court erred in revoking
probation or that his sentences are excessive.
       Therefore, the order revoking probation and directing execution of Neff’s previously
suspended sentences is affirmed.




                                                 7
