                   IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41862

STATE OF IDAHO,                                ) 2014 Opinion No. 106
                                               )
       Plaintiff-Respondent,                   ) Filed: December 17, 2014
                                               )
v.                                             ) Stephen W. Kenyon, Clerk
                                               )
MURRAY CASEY CARTER,                           )
                                               )
       Defendant-Appellant.                    )
                                               )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Cheri C. Copsey, District Judge.

       Order denying I.C.R. 35 motion for reduction of sentence, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

MELANSON, Judge
       Murray Casey Carter appeals from district court’s order denying his I.C.R. 35 motion for
reduction of his sentence. He argues that the district court abused its discretion by denying the
motion and by denying his request for appointment of counsel. For the reasons set forth below,
we affirm.
                                               I.
                                 FACTS AND PROCEDURE
       Carter was charged with felony eluding an officer, I.C. § 49-1401; driving under the
influence (DUI), I.C. §§ 18-8004 and 18-8005(4); and driving without privileges (DWP),
I.C. § 18-8001(3). Pursuant to a plea agreement, Carter pled guilty to felony eluding an officer
and DUI; in exchange, the state dismissed the DWP and agreed to recommend a unified sentence
of no more than five years, with a minimum period of confinement of two years, for felony


                                               1
eluding an officer.   The state would also recommend that any sentence for the DUI run
concurrently. Carter was free to recommend a reduced sentence. The district court accepted
Carter’s guilty plea and imposed a unified sentence of five years, with a minimum period of
confinement of one year, for felony eluding and a concurrent unified sentence of one year for
second offense DUI.
       Carter filed a pro se Rule 35 motion for reduction of only his sentence for felony eluding
an officer and a contemporaneous pro se motion for appointment of counsel. The district court
denied the request for appointment of counsel, finding that the Rule 35 motion was not a
proceeding that a reasonable person with adequate means would be willing to bring at his or her
own expense and, therefore, was frivolous. The district court subsequently denied Carter’s
Rule 35 motion. Carter appeals.
                                                II.
                                          ANALYSIS
       Carter claims that the district court erred in denying his request for appointment of
counsel. Alternatively, he argues that the district court abused its discretion in denying his
Rule 35 motion for reduction of his sentence.
A.     Appointment of Counsel
       Carter argues that the district court erred in denying his request for appointment of
counsel on the grounds that his Rule 35 motion was frivolous. This, he claims, is because the
district court’s decision was based on a misstatement of the facts. Specifically, Carter contends
that the district court mistakenly believed that he and the state had agreed to a sentencing
recommendation, while he was actually free to recommend a lesser sentence. This was based on
the following statement by the district court in its order denying Carter’s motion for appointment
of counsel: “There was a plea agreement for two (2) years fixed, with three (3) years
indeterminate on Count I [eluding]; the Court actually reduced the fixed time to one (1) year.”
       A criminal defendant has a right to counsel at all critical stages of the criminal process,
including pursuit of a Rule 35 motion. I.C. §§ 19-851, 19-852; I.C.R. 44; State v. Wade, 125
Idaho 522, 523, 873 P.2d 167, 168 (Ct. App. 1994). Although a defendant has a right to hire a
private attorney in a Rule 35 proceeding, a trial court may deny a request for appointment of
counsel if the motion is not a proceeding that a reasonable person with adequate means would be
willing to bring at his or her own expense and is, therefore, a frivolous proceeding. I.C. § 19-

                                                2
852(2)(c) 1; Wade, 125 Idaho at 523, 873 P.2d at 168.           Thus, a defendant may be denied
appointment of counsel to assist in pursuing a Rule 35 motion if the trial court finds the motion
to be frivolous. Wade, 125 Idaho at 523-24, 873 P.2d at 168-69. Whether a motion is frivolous
is a question of law that we freely review. Id. at 525, 873 P.2d at 170.
       In presenting a Rule 35 motion, a 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). Thus, any
colorable merit to a Rule 35 motion must arise from new or additional information presented in
the motion or accompanying documentation that would create a basis for reduction of the
sentence. Wade, 125 Idaho at 525, 873 P.2d at 170. As a result, a Rule 35 motion that does not
present such new information is not one that a reasonable person with adequate means would
bring before the district court at his or her own expense and is, therefore, frivolous.
       Assuming, without deciding, that the district court relied on the clearly erroneous fact
Carter suggests in determining that his Rule 35 motion was frivolous, whether a motion is
frivolous for purposes of appointment of counsel is a question of law that we review de novo.
See id. Moreover, we may still sustain a correct legal ruling in a criminal case, even if based
upon incorrect facts, if the clearly established record supports that ruling. Cf. State v. Pierce,
107 Idaho 96, 102, 685 P.2d 837, 843 (Ct. App. 1984). Thus, we set aside the district court’s
allegedly erroneous factual determination regarding the plea agreement, and we review whether
Carter’s Rule 35 motion was frivolous in light of the clearly established factual record.
       After a review of the record in this case, we conclude that Carter’s Rule 35 motion was,
indeed, frivolous. Carter’s motion was not supported by new information that would have
warranted a reduction of his sentence. Carter asserts that the new information he provided was
that he had been regularly attending Alcoholics Anonymous, Narcotics Anonymous, and other
recovery meetings while awaiting transfer to the prison therapeutic community. However, there
is no indication that this information would provide a basis for reducing Carter’s sentence. On
the contrary, the district court noted during sentencing that Carter had previously participated in
treatment and recovery services, but that treatment--especially in the community--had “not


1
       The statutory provision allowing for appointment of counsel in post-judgment
proceedings was formerly codified at I.C. § 19-852(b)(3). Effective July 2013, that provision
was recodified as I.C. § 19-852(2)(c). See 2013 Idaho Sess. Laws, ch. 220, § 2.
                                                  3
accomplished anything” and Carter remained a “high risk” to reoffend. Indeed, the sentence
specifically contemplated and intended for Carter to participate in “intensive treatment”
programming while incarcerated; to that end, the district court declined to follow the state’s
recommended fixed portion of the sentence, reducing it from two years to one year to allow
Carter to enter the therapeutic community sooner. The district court also noted that, because of
Carter’s repeated failures in treatment in the past, treatment in the community while on probation
was not an option, as it sent the wrong message and presented an undue risk that he would
recidivate.   Accordingly, the indeterminate portion of the state’s proposed sentence was
increased from three years to four years. Although Carter’s voluntary participation in twelve-
step and recovery meetings is laudable, it does not change the clear purpose of the
sentence--having Carter receive intensive treatment while incarcerated. Carter’s efforts do not
constitute new information warranting a reduction of his sentence, as they do not address or
fulfill the purpose of the sentence imposed by the district court. As a result, even assuming the
district court made a clear factual error, the district court’s legal conclusion that Carter’s Rule 35
motion was frivolous was correct and was supported by the record in this case.
B.     Rule 35 Motion
       Alternatively, Carter argues that the district court abused its discretion by denying his
Rule 35 motion because it mistakenly believed that its review of the original sentence was
limited to the fixed portion of the sentence. A Rule 35 motion for reduction of sentence 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). We will not review a defendant’s underlying sentence for excessiveness when
the defendant has appealed only the grant or denial of his Rule 35 motion unless the motion was
supported by new evidence tending to show that the original sentence was excessive. State v.
Farwell, 144 Idaho 732, 735, 170 P.3d 397, 400 (2007); Huffman, 144 Idaho at 203, 159 P.3d at
840. 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); State v. Lopez, 106
Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct. App. 1984).
       When reviewing a sentence, we presume that the fixed portion of the sentence will be the
defendant’s probable term of confinement. State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387,

                                                  4
391 (2007). Carter contends that the district court invoked a form of this proposition that has
been “expressly disavowed” by the Idaho Supreme Court. See State v. Hayes, 123 Idaho 26, 27,
843 P.2d 675, 676 (Ct. App. 1992) (stating that “the fixed portion of a sentence imposed under
the Unified Sentencing Act is treated as the term of confinement for sentence review purposes”).
As a result, he argues, the district court abused its discretion because it used the allegedly
erroneous proposition of law in Hayes to govern consideration of Carter’s Rule 35 motion. More
specifically, he alleges that the district court viewed this proposition as limiting its review to the
determinate portion of Carter’s sentence, which he claims is shown by the district court’s finding
that “a one-year fixed sentence for Eluding . . . is lenient considering the facts of this crime and
is well within the statutory sentence guidelines.”
       Carter cites to Huffman for support. In Huffman, the defendant argued that the Idaho
Supreme Court had never adopted language used by this Court in State v. Sanchez, 115 Idaho
776, 769 P.2d 1148 (Ct. App. 1989) that indicated that we treat the fixed portion of a sentence as
the term of confinement for review purposes under the Unified Sentencing Act. Thus, Huffman
argued, the Court should not adopt the test enunciated in State v. Herrera, 130 Idaho 839, 840,
949 P.2d 226, 227 (Ct. App. 1997), in which we elaborated on Sanchez and explained that we
would review the indeterminate portion of a defendant’s sentence only upon a showing of
“special circumstances.”     However, the Court stated that Huffman’s argument incorrectly
assumed that the “special circumstances” test derived from a refusal to review a defendant’s
aggregate sentence, which the Court had never held. Huffman, 144 Idaho at 202-03, 159 P.3d at
839-40. The Court then denied review of Huffman’s attempt to alter the standard of review for
Rule 35 motions because it was not properly before the Court on appeal. Id. at 203, 159 P.3d at
840.
       The Court’s decision in Huffman is not at odds with the standard this Court enunciated in
Sanchez. In Sanchez, we stated:
       In those cases [under the Unified Sentencing Act,] the minimum period [of
       confinement] generally will be treated as the probable measure of confinement for
       the purpose of sentence review. By focusing on this period, we do not wholly
       disregard the aggregate length of the sentence, nor do we suggest that a prisoner
       will be entitled to parole when the minimum period has elapsed; but we do
       recognize that he [or she] will be eligible for parole at that time.




                                                  5
Sanchez, 115 Idaho at 777, 769 P.2d at 1149 (emphasis added). Thus, we do not limit our review
of a defendant’s sentence to only the determinate portion; we simply focus our review on that
portion as a practical matter.
       Instead, Huffman implicitly rejected the later requirement of showing “special
circumstances,” as set out in Herrera, before an indeterminate portion of a sentence could be
reviewed. The Court further clarified its position on this issue in State v. Arthur, 145 Idaho 219,
177 P.3d 966 (2008). There, the Court stated the following:
              Until recently, confusion existed as to the standard of review applied in
       sentence review based on dicta from State v. Herrera . . . and as applied by the
       Court of Appeals in some cases. However, in State v. Huffman the Court
       addressed the apparent confusion surrounding the standard of review. Huffman
       presented a nearly identical argument to the one Arthur presents here, arguing that
       the Court should refuse to adopt the “special circumstances” test utilized by the
       Court of Appeals and instead always review both the determinate and
       indeterminate portion of a sentence. However, this Court pointed out we had
       never held we would not review the aggregate sentence to see if it was reasonable
       under the facts of a case when a sentence is announced. Then, in State v. Oliver,
       the Court made it abundantly clear that it reviews a defendant’s entire sentence
       for an abuse of discretion. Additionally, the Court noted that a defendant
       challenging his [or her] sentence on appeal “need not show special circumstances
       in order for the appellate court to review the entire sentence, including the
       indeterminate portion.”
Arthur, 145 Idaho at 223, 177 P.3d at 970 (citations omitted). This clarification was followed by
the Court’s reaffirmation of the well-established standard that we presume the fixed portion of a
sentence to be the defendant’s probable term of confinement. Id. This, the Court explained, is
because whether a defendant serves longer than the fixed portion of the sentence is a matter left
to the sole discretion of the parole board. Id. Thus, the only proposition that the Idaho Supreme
Court has “expressly disavowed” is the requirement of showing “special circumstances” when
requesting review of the indeterminate portion of a sentence.
       The district court did not rely on that proposition here. Instead, the district court cited
Hayes for the basic presumption reaffirmed in Oliver and Arthur. The district court did not
require Carter to provide “special circumstances” justifying review of the indeterminate portion
of his sentence; instead, it merely focused on Carter’s fixed sentence as the probable term of
confinement and noted that it was lenient given the facts of the case. The district court then
summarized the basis for the original sentence:



                                                  6
               In arriving at this sentence, the Court considered Carter’s character and
       any mitigating or aggravating factors. The Court, however, found there were
       several aggravating factors in this case suggesting the need for this sentence. In
       particular, it is clear that Carter needs treatment. The Court’s decision focused on
       rehabilitation and protection of society. The facts of this crime and his criminal
       history suggested the need for this sentence in order to properly rehabilitate him.
               This incident began just after seven o’clock in the evening and ending just
       after ten o’clock. It began when Carter broke out the rear window of his
       girlfriend’s car and called and threatened to kill her. He had previously
       threatened her. He then drove to another house. He was extremely intoxicated
       and the police went to investigate. He spilled beer all over himself. He
       threatened to shoot another woman who was answering a call from his girlfriend.
       He then offered another person $1000 to beat up his girlfriend. The officer
       located him driving and Carter refused to stop and fled. He drove . . . at speeds of
       approximately 80 m.p.h. He failed to negotiate a right turn . . . causing his car to
       run over a stop sign and slide off the road. His blood alcohol was .135/.116. He
       put a number of people at risk.
The district court recounted Carter’s criminal record, which included an extensive juvenile
record involving drugs, alcohol, and a conviction for battery that was amended from lewd
conduct with a minor child under sixteen years of age; a felony conviction for forgery in 2002; a
prior DUI conviction in 2008; and several other alcohol-based offenses. Although the district
court did not specifically discuss the indeterminate portion of Carter’s sentence, this does not
indicate that the district court reviewed only the fixed portion of Carter’s sentence or understood
the law it cited as requiring such a limited review. On the contrary, the district court’s discussion
addressed the purpose of the entire sentence in a manner similar to how it approached its original
sentencing decision, noting that the sentence was designed to promote rehabilitation and fulfilled
the sentencing objectives. As a result, Carter’s contention that the district court abused its
discretion by relying on an erroneous proposition of law is incorrect. Carter does not otherwise
challenge the denial of his Rule 35 motion and, as previously noted, did not provide any new or
additional information in his Rule 35 motion justifying review of his underlying sentence for
excessiveness. Thus, Carter has failed to establish that the district court abused its discretion.
                                                 III.
                                          CONCLUSION
       Carter has failed to show that he was entitled to appointment of counsel or that the district
court abused its discretion in denying his Rule 35 motion. Accordingly, the district court’s order
denying Carter’s Rule 35 motion is affirmed.
       Judge LANSING and Judge GRATTON, CONCUR.
                                                  7
