              IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                     Docket No. 39023

STATE OF IDAHO,                               )     2012 Unpublished Opinion No. 435
                                              )
      Plaintiff-Respondent,                   )     Filed: April 5, 2012
                                              )
v.                                            )     Stephen W. Kenyon, Clerk
                                              )
JOHNNY RAY ANDOE,                             )     THIS IS AN UNPUBLISHED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,
      Jerome County. Hon. John K. Butler, District Judge.

      Orders of the district court denying appointment of counsel and denying I.C.R. 35
      motion for reduction of sentence, affirmed.

      Sara B. Thomas, State Appellate Public Defender; Jason C. Pintler, Deputy
      Appellate Public Defender, Boise, for appellant.

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

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

PER CURIAM
      Johnny Ray Andoe entered Alford 1 pleas, pursuant to a binding Idaho Criminal Rule 11
plea agreement, to second degree kidnapping, Idaho Code §§ 18-4501(1), 18-4503, and felony
domestic battery, Idaho Code §§ 18-918, 18-903(a). The State agreed to dismiss additional
charges, recommend the retained jurisdiction program, and recommend an underlying unified
sentence of twenty years with ten years determinate. As part of the plea agreement, Andoe
waived “all rights to appeal,” unless the district court exceeded the State’s sentencing



1
      See North Carolina v. Alford, 400 U.S. 25 (1970).



                                             1
recommendation. The district court imposed the sentence consistent with the plea agreement.
Following the period of retained jurisdiction, the district court relinquished jurisdiction. Andoe
appealed from the district court’s order relinquishing jurisdiction. Andoe also filed a pro se
I.C.R. 35 motion, together with a motion for appointment of counsel and a request for hearing,
which the district court denied without hearing. Andoe appeals, asserting that the district court
erred in denying his request for appointment of counsel in regard to his Rule 35 motion. The
State contends that this appeal should be dismissed because Andoe waived “all rights to appeal.”
       We need not determine whether Andoe waived his right to appeal from the denial of his
motion for appointment of counsel in regard to his Rule 35 motion, as the district court did not
abuse its discretion in denying the motion. When a court is presented with a motion for
appointment of counsel, the court must address the request before turning to the substantive
issues in the underlying matter. State v. Wade, 125 Idaho 522, 524, 873 P.2d 167, 169 (Ct. App.
1994). A defendant is entitled to be represented by counsel unless the court in which the
proceeding is brought determines that it is not a proceeding that a reasonable person would be
willing to bring, at his own expense, and is therefore a frivolous proceeding. I.C. § 19-852(b)(3).
Here, the district court specifically determined that the Rule 35 motion, both as a claim of an
illegal sentence and as a plea for leniency, was frivolous.
       Andoe’s Rule 35 motion claimed the sentence was illegal because: the court abused its
authority; denied his constitutional rights (citing “State v. Wolf”); used the laws of the state to
eliminate his rights to a defense, to be presumed innocent and to a fair trial; failed to recognize
his physical limitations to commit the crime; and “failure to subpoena phone records of Jake
Blackman, Sergeant Baker, Officer Rushiny and Dawn aka Hansen aka Madox subpoena for
Idaho counties investigation.” He further alleged ineffective assistance of counsel. The district
court correctly concluded that all of the allegations raised relate to a collateral attack on the
judgment and that there was no showing that the sentence was illegal on the face of the record.
       In regard to identification of documentation for consideration, Andoe again referenced
subpoenas for phone records of the individuals identified above, 2 and subpoenas for “Idaho
counties investigation report starting May 9 and of May 12 meeting and all medical records from
NICI and Idaho Department of Corrections.” Andoe asserts that this language is in relation to an

2
        Andoe requested subpoenas for the phone records of these individuals prior to entry of
his plea and sentencing, claiming the records would establish his innocence.

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allegation mentioned in the Addendum to the Presentence Investigation Report (APSI) regarding
Andoe soliciting other inmates to burn down a building on his in-laws’ property. He further
contends that the district court relinquished jurisdiction because of the allegation. Andoe now
argues that this quoted reference amounted to a challenge to the basis for the district court’s prior
relinquishment of jurisdiction and that a Rule 35 motion is a vehicle to request reconsideration of
relinquishment of jurisdiction. We disagree. First, Andoe did not request reconsideration of
relinquishment of jurisdiction in the Rule 35 motion, only reduction of sentence. Second, Andoe
was required to support his claims with new or additional records, which he did not do. The
district court was not required to grant a subpoena, even to the extent it could have divined a
request to do so. Third, and most importantly, while the district court generally referenced
Andoe’s poor conduct during the period of retained jurisdiction, the district court refused to
modify the sentence “specifically” because of Andoe’s performance in the sex offender
assessment group, not because of the alleged solicitation for arson. In fact, the APSI addresses
the problems associated with the sex offender assessment group without any regard to the alleged
arson solicitation issue. The APSI relates that during group sessions, Andoe appeared to be
taking accountability for his crime by the assignments he presented. However, when on the tier,
he put all of the blame on his victim/wife. This indicated continued attempts to manipulate staff
by saying one thing in his group assignments and presentations and then saying the total opposite
to his peers on the tier. The APSI notes that Andoe did not seem to have recognized that his
behavior and thinking led him to behavior that was not appropriate and was criminal. It was also
reported that he told some of the new inmates coming onto the tier that they would have to lie in
order to get through the program. Because of this conduct, it was concluded that Andoe was not
amenable to treatment at that time. The district court concluded that “it is apparent that the
defendant is unable to comply with the requirements of his programming to address his criminal
thinking and behavior as well as his risk to the community based on the psychosexual evaluation
prepared for disposition as well as his inability to meaningfully participate in the sex offender
assessment group.” On this basis, the district court declined modification of the sentence and did
not abuse its discretion in doing so.
       The district court’s order denying appointment of counsel and denying Andoe’s Rule 35
motion is affirmed.




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