               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 46419

STATE OF IDAHO,                                 )
                                                )   Filed: June 4, 2019
       Plaintiff-Respondent,                    )
                                                )   Karel A. Lehrman, Clerk
v.                                              )
                                                )   THIS IS AN UNPUBLISHED
RICHARD J. HIBBERT,                             )   OPINION AND SHALL NOT
                                                )   BE CITED AS AUTHORITY
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho,
       Minidoka County. Hon. Michael P. Tribe, District Judge.

       Order denying Idaho Criminal Rule 35 motion, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant.

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

                     Before GRATTON, Chief Judge; HUSKEY, Judge;
                               and BRAILSFORD, Judge
                  ________________________________________________

PER CURIAM
       In June 1994, Hibbert pled guilty to one count of lewd conduct with a minor child under
the age of sixteen, Idaho Code § 18-1508. Hibbert was sentenced to a determinate life sentence
without the possibility of parole, which sentence Hibbert appealed as excessive. This Court
affirmed Hibbert’s conviction and sentence in State v. Hibbert, 127 Idaho 277, 899 P.2d 987 (Ct.
App. 1995). In concluding Hibbert’s sentence was not excessive, the Court noted “Hibbert’s
long-term sexual molestation of his fourteen-year-old daughter” and “several aggravating
factors,” including (among other facts) that Hibbert’s “actions may also be construed as repeated,
forcible rape”; he threatened to kill his victim and numerous other people; he smuggled a


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homemade knife into the courthouse; and there was “high degree of certainty that [he would] re-
offend.” Id. at 278-79, 899 P.2d 988-99.
       In 2012, Hibbert filed a motion under Idaho Criminal Rule 35 challenging his sentence.
The district court denied this motion, and this Court again affirmed Hibbert’s sentence. See State
v. Hibbert, Docket No. 40088 (Ct. App. Feb. 19, 2013) (unpublished). The Court concluded
Hibbert’s motion under Rule 35(b) was untimely because he filed it more than 120 days (and
over seventeen years) after the entry of the judgment of conviction. Further, the Court concluded
Hibbert’s motion failed under Rule 35(a) because the sentence does not exceed the statutory
maximum and is not otherwise contrary to applicable law.
       In 2015, Hibbert filed a second Rule 35 motion for correction of an illegal sentence,
which the district court denied, but Hibbert did not appeal. Then, Hibbert filed a third Rule 35
motion, arguing his determinate life sentence is illegal on its face because it conflicted with
Apprendi v. New Jersey, 530 U.S. 466 (2000). The district court denied this motion, and this
Court affirmed Hibbert’s sentence a third time. State v. Hibbert, Docket No. 44069 (Ct. App.
Sept. 13, 2016) (unpublished). The Court noted the doctrine of res judicata barred Hibbert’s
third motion, but nonetheless, it addressed the merits of Hibbert’s motion, ruling that Apprendi
did not have an impact on Idaho’s sentencing scheme and that a determinate life sentence for a
lewd conduct conviction is legal.
       In 2018, Hibbert filed a fourth Rule 35 motion, which is the subject of this appeal.
Although Hibbert appears to have filed this fourth motion only under Rule 35(b), the district
court construed the motion under both Rule 35(a) and (b) and denied the motion under both
subsections, ruling:
               The sentence in [Hibbert’s] original Judgment of Conviction is the
       maximum allowed by law; therefore, [Hibbert’s] sentence is legal from the face of
       the record. . . . Further, [Hibbert] has not provided the Court with any new or
       additional information to support his motion. In the absence of such information,
       there is no basis for concluding that [Hibbert’s] sentence is excessive or unduly
       harsh.
Hibbert appeals this denial.
       Under Rule 35(a), the district court “may correct a sentence that is illegal from the face of
the record at any time.” Rule 35(a), however, is a “narrow rule,” and because an illegal sentence
may be corrected at any time, the authority conferred by Rule 35(a) should be limited to uphold
the finality of judgments. State v. Farwell, 144 Idaho 732, 735, 170 P.3d 397, 400 (2007). The

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term “illegal sentence” under Rule 35(a) is narrowly interpreted as a sentence which is illegal
from the face of the record; i.e., it does not involve significant questions of fact or require an
evidentiary hearing.    State v. Clements, 148 Idaho 82, 86, 218 P.3d 1143, 1147 (2009).
Rule 35(a)’s purpose is to allow courts to correct illegal sentences, not to reexamine errors
occurring at trial or before the imposition of the sentence. State v. Wolfe, 158 Idaho 55, 65, 343
P.3d 497, 507 (2015). Therefore, Rule 35(a) “only applies to a narrow category of cases in
which the sentence imposes a penalty that is simply not authorized by law.” Clements, 148
Idaho at 86, 218 P.3d at 1147. In an appeal from the denial of a motion under Rule 35 to correct
an illegal sentence, the question of whether the sentence imposed is illegal is a question of law
freely reviewable by the appellate court. State v. Josephson, 124 Idaho 286, 287, 858 P.2d 825,
826 (Ct. App. 1993).
       A motion under Rule 35(b) must be filed “[w]ithin 120 days of the entry of the judgment
imposing sentence.” Further, “[a] defendant may only file one motion under Rule 35(b) seeking
a reduction of sentence.” Id. (emphasis added). A motion for reduction of sentence under
Rule 35(b) 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). An appeal from the denial of a Rule 35(b) motion cannot be used as a vehicle to review
the underlying sentence absent the presentation of new information. Huffman, 144 Idaho at 203,
159 P.3d at 840. In conducting our review of the denial of a Rule 35(b) 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). A denial of a Rule
35(b) motion will not be disturbed in the absence of an abuse of discretion. State v. Villarreal,
126 Idaho 277, 281, 882 P.2d 444, 448 (Ct. App. 1994).
       Apparent from the face of Hibbert’s motion is that he brought it under Rule 35(b).
Hibbert’s Rule 35(b) motion fails for numerous, alternative reasons. First, Hibbert filed his
motion more than 120 days after the entry of the judgment imposing his sentence. Second,
Hibbert has already previously filed his one Rule 35(b) motion in 2012. Third, Hibbert failed to
offer new or additional information in support of his motion.

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       Likewise, even construing Hibbert’s motion under Rule 35(a) as the district court did,
Hibbert’s Rule 35 motion still fails. Hibbert’s sentence is the maximum allowed by the law, and
therefore, it is legal from the face of the record. Moreover, this Court has already rejected
Hibbert’s legal arguments, and thus his motion under Rule 35(a) is barred by the doctrine of res
judicata. See, e.g., State v. Rhoades, 134 Idaho 862, 863, 11 P.3d 481, 482 (2000) (holding “the
doctrine of res judicata can be applied to bar a subsequent Rule 35 motion after a defendant has
failed to appeal an earlier motion based on the same grounds”). For the foregoing reasons, we
affirm the district court’s denial of Hibbert’s Rule 35 motion.




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