               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 40419

STATE OF IDAHO,                                  )     2014 Opinion No. 44
                                                 )
       Plaintiff-Respondent,                     )     Filed: May 22, 2014
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
ALLEN KEITH CLONTZ,                              )
                                                 )
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Bonneville County. Hon. Dane H. Watkins, Jr., District Judge.

       Order relinquishing jurisdiction and requiring execution of unified six-year
       sentence with three-year determinate term for felony driving under the influence,
       affirmed.

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

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Allen Keith Clontz was convicted of felony driving under the influence, Idaho Code
§§ 18-8004, 18-8005(6), 18-8008. The district court imposed a unified sentence of six years
with three years determinate, suspended the sentence and placed Clontz on probation. About
three months later, the State filed a motion to revoke Clontz’s probation due to probation
violations. Prior to disposition of that motion, Clontz filed an Idaho Criminal Rule 35 motion for
reduction of his sentence. The district court denied the Rule 35 motion. Clontz filed a timely
notice of appeal from that order, but does not challenge the denial of the Rule 35 motion in his
briefing on appeal. Several months after denying Clontz’s Rule 35 motion, the district court
revoked his probation and ordered execution of the underlying sentence, but retained jurisdiction.
At the conclusion of the retained jurisdiction program, the court relinquished jurisdiction and




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ordered execution of Clontz’s sentence. On appeal, Clontz contends that the court abused its
discretion in failing to sua sponte reduce his sentence upon relinquishing jurisdiction.
       The issue with which we struggle today is whether, in light of recent Idaho Supreme
Court precedent, a criminal defendant may continue to claim on appeal that the district court
erred by failing to sua sponte reduce the defendant’s sentence upon relinquishment of
jurisdiction or revocation of probation. Although, generally, issues not raised below may not be
considered for the first time on appeal, State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126
(1992), we have, in the past, allowed defendants to challenge a court’s failure to sua sponte
reduce a sentence upon relinquishment of jurisdiction and upon revocation of probation. State v.
Schultz, 149 Idaho 285, 288-89, 233 P.3d 732, 735-36 (Ct. App. 2010); see also State v. Jensen,
138 Idaho 941, 944, 71 P.3d 1088, 1091 (Ct. App. 2003). 1
       In recent years, the Idaho Supreme Court has held that all unobjected-to claims of error
must satisfy the fundamental error standard in order to be entertained on appeal. State v. Perry,
150 Idaho 209, 228, 245 P.3d 961, 980 (2010). The three-part standard in Perry places the
burden on the defendant to demonstrate that the alleged error: (1) violates one or more of the
defendant’s unwaived constitutional rights; (2) is clear or obvious without the need for reference
to any additional information not contained in the appellate record; and (3) affected the outcome
of the trial proceedings. Id. at 226, 245 P.3d at 978. The Supreme Court has held “that the Perry
standard applies to all claims of error relating to proceedings in criminal cases in the trial
courts.” State v. Carter, 155 Idaho 170, 174, 307 P.3d 187, 191 (2013).
       In Carter, the defendant contended “that the district court committed error when it failed
to sua sponte order a psychological evaluation pursuant to Idaho Code § 19-2522.” Id. at 176,
307 P.3d at 189. Carter had not requested a psychological evaluation nor objected to the lack of
one at sentencing. Idaho Code § 19-2522 requires that if there is reason to believe the mental
health of the defendant will be a significant factor at sentencing, the court “shall” appoint a
psychiatrist or licensed psychologist to conduct an examination and prepare a report. From this,
Carter argued that the district court had an affirmative duty to order such evaluation, and the



1
        The trial court has authority, pursuant to Idaho Criminal Rule 35, to reduce a sentence
within 120 days of relinquishment of jurisdiction or within 14 days of revocation of probation.
We have generally referred to the trial court’s Rule 35 authority in allowing appeals from the
failure of the court to sua sponte reduce the sentence.

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Supreme Court was thereby permitted to review the claim of error, even without an objection
below. The Supreme Court rejected the notion that the district court had an affirmative duty
stating that “[i]t is axiomatic that a trial court has a duty to follow all of Idaho’s laws and rules.
However, it does not follow that this duty relieves a party of its obligation to preserve its claims
of error by making an appropriate objection at the time of the error.” Carter, at 174, 307 P.3d at
191. Therefore, even in a situation in which the requirement is mandatory, the defendant cannot
appeal, absent a showing of fundamental error, the failure of the district court to act sua sponte.
Thus, the question is raised whether the defendant may continue to claim on appeal error by the
district court in failing to reduce the defendant’s sentence sua sponte.
       We turn first to potential justifications for continuing to allow such claims even in light
of Perry and Carter. Perhaps one could argue reliance on the rule of stare decisis. “[T]he rule of
stare decisis dictates that we follow [controlling precedent] unless it is manifestly wrong, unless
it has proven over time to be unjust or unwise, or unless overruling it is necessary to vindicate
plain, obvious principles of law and remedy continued injustice.” State v. Humpherys, 134 Idaho
657, 660, 8 P.3d 652, 655 (2000) (quoting Houghland Farms, Inc. v. Johnson, 119 Idaho 72, 77,
803 P.2d 978, 983 (1990)). As noted, we have precedent allowing a claim of error on appeal
based upon the district court’s failure to sua sponte reduce a sentence upon relinquishment of
jurisdiction or revocation of probation. See State v. Rothwell, 154 Idaho 125, 138, 294 P.3d
1137, 1150 (Ct. App. 2013) (relinquishment); State v. Chacon, 146 Idaho 520, 524, 198 P.3d
749, 753 (Ct. App. 2008) (revocation). On the other hand, the Supreme Court has stated that we
are required to “follow decisions of [the Supreme Court] when there is a conflict between [its]
decisions on an issue of law and those of the Court of Appeals.” State v. Clinton, 155 Idaho 271,
272, n.1, 311 P.3d 283, 284, n.1 (2013). So, if indeed Perry and Carter operate to preclude an
appeal of the failure to sua sponte reduce a sentence, then we may not rely upon our prior
precedent.
       It might be argued that the contemporaneous objection rules of Perry and Carter simply
do not apply to the exercise of sentencing discretion upon relinquishment or revocation.         The
Idaho Supreme Court explained the policy behind the need for a timely objection in Perry:
              Generally Idaho’s appellate courts will not consider error not preserved for
       appeal through an objection at trial. State v. Johnson, 126 Idaho 892, 896, 894
       P.2d 125, 129 (1995). “This limitation on appellate-court authority serves to
       induce the timely raising of claims and objections, which gives the [trial] court the


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       opportunity to consider and resolve them.” Puckett v. U.S., 556 U.S. 129, __, 129
       S. Ct. 1423, 1428, 173 L.Ed.2d 266, 274 (2009). Ordinarily, the trial court is in
       the best position to determine the relevant facts and to adjudicate the dispute. Id.
       “In the case of an actual or invited procedural error, the [trial] court can often
       correct or avoid the mistake so that it cannot possibly affect the ultimate
       outcome.” Id. Furthermore, requiring a contemporaneous objection prevents the
       litigant from sandbagging the court, i.e., “remaining silent about his objection and
       belatedly raising the error only if the case does not conclude in his favor.” Id.

Perry, 150 Idaho at 224, 245 P.3d at 976. Regarding contemporaneous objection, we note that
under present case law a defendant facing relinquishment is not entitled to a hearing, and
therefore, may be practically limited in the ability to register a contemporaneous objection. State
v. Coassolo, 136 Idaho 138, 30 P.3d 293 (2001); State v. Denny, 122 Idaho 563, 835 P.2d 1374
(Ct. App. 1992). A defendant may further be limited in the ability to take up the issue of
reduction of sentence at the time of relinquishment or revocation because doing so may impair
the ability to file an Idaho Criminal Rule 35 motion. By its terms, Rule 35 allows only one
motion by the defendant for leniency and reduction of sentence. Such motion may be filed
within 120 days of relinquishment or 14 days of revocation. In State v. Hurst, 151 Idaho 430,
438, 258 P.3d 950, 958 (Ct. App. 2011) we held that the defendant’s request, at a retained
jurisdiction review hearing, for the district court “to consider exercising [its] abilities under
Rule 35” and to “consider dramatically cutting down on [the] fixed time” constituted an oral
motion that precluded the defendant from filing a later Rule 35 motion to reduce the sentence. 2
Thus, Hurst may have the consequence of effectively precluding a defendant from frank
discussion at the relinquishment or revocation proceeding regarding reduction of sentence. 3



2
       But see State v. Salsgiver, 112 Idaho 933, 935, 736 P.2d 1387, 1389 (Ct. App. 1987) (per
curiam), in which the defendant had lost the ability to file a Rule 35 motion, yet we stated:
       However, the apparent loss of potential relief under Rule 35 is offset in some
       measure by the power inherent in retained jurisdiction itself. Although I.C. § 19-
       2601(4) contains no explicit reference to reducing a sentence, we see no reason
       why a court, exercising the jurisdiction it has retained, may not reduce a sentence
       earlier pronounced. If the Rule 35 motion is essentially a plea for leniency, see,
       e.g., State v. Lopez, 106 Idaho 447, 680 P.2d 869 (Ct. App. 1984), then a similar
       plea may be made to the court when it decides whether to relinquish jurisdiction.
3
       The Supreme Court has held that 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,

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       Another potential argument for allowing appeal may be that the Perry/Carter
requirement of timely objection is, in effect, satisfied by virtue of the nature of a relinquishment
or revocation proceeding. It may be asserted that the defendant’s sentence is inherently part and
parcel of the decision to relinquish or revoke. In other words, the proceeding or decision to
relinquish or revoke is, by its nature, a contested issue both as to execution of the sentence as
well as the appropriate sentence to execute. In State v. Jensen, 138 Idaho 941, 944, 71 P.3d
1088, 1091 (Ct. App. 2003) (per curiam), this Court said:
       The Idaho appellate courts have jurisdiction, on appeal from an order revoking
       probation, to entertain a claim that a sentence is excessive. This is so because, by
       terms of Idaho Criminal Rule 35, whenever a trial court revokes probation it has
       authority to sua sponte reduce the sentence that was originally pronounced. It is
       consequently permissible for appellants to present as an issue whether the trial
       court abused its discretion in failing to reduce a sentence upon the revocation of
       probation. That type of appeal is a challenge to a new decision (explicit or
       implicit) made by the district court upon revocation of probation.

This Court has, then, in effect suggested that the trial court’s failure to reduce the sentence is an
adverse decision, albeit made in silence. 4 As such, the argument would be that the nature of the
proceeding itself involves an objection to execution of the sentence without reduction. On the
other hand, the question is, does it really? We can identify two circumstances when an express
objection has not been deemed necessary in order to appeal. The defendant has not been
required to object upon entry of the jury’s verdict to the insufficiency of the evidence in order to
appeal that issue. Likewise, the defendant has not been required to object to the sentence




159 P.3d 838, 840 (2007). It may well be surmised that the information (including new or
additional) available to the district court at the time of relinquishment or revocation is hardly
favorable to the defendant. Relinquishment is likely based upon negative information from the
Department of Correction regarding the defendant’s performance in the retained jurisdiction
program. Revocation will occur when the defendant has admitted to or been found to have
committed probation violations severe enough to warrant revocation and execution of the
underlying sentence. These may not be the best times for the defendant to marshal favorable
information to submit to the court in support of Rule 35 leniency. Consequently, under the rule
in Hurst, the defendant may well waste any potentially successful Rule 35 motion by raising the
issue of reduction at relinquishment or revocation.
4
       Although we also note that we have allowed appeals claiming that while the trial court
expressly and sua sponte reduced the sentence, the court failed to reduce it enough.

                                                 5
pronounced immediately after its pronouncement in order to challenge on appeal the
appropriateness of the sentence. However, it can be readily seen that the very nature of the trial
is nothing but a contest over the sufficiency of the evidence to determine guilt. Similarly, the
only point of sentencing proceedings is to contest--absent express agreement--the sentence to be
imposed. Thus, no further objection or request is necessary. On the other hand, while the trial
court has authority to reduce a sentence upon relinquishment or revocation, the primary focus of
those proceedings may be said to be the decision to place the defendant in prison rather than on
probation.
       Conversely to the above arguments, it is clear, based upon Perry and Carter, that the
Supreme Court is insistent that it is the parties that have the obligation to preserve their claims of
error by making an appropriate objection at the time of the error, rejecting the claim that the duty
to act is on the trial court. So, just because a trial court has authority to do something has not
been held to mean that it is required to do so sua sponte, without a party’s request or objection.
In addition, “the Perry standard applies to all claims of error relating to proceedings in criminal
cases in the trial courts.” Carter, at 174, 307 P.3d at 191 (emphasis added). Thus, it would seem
that if a defendant wishes the court to exercise its discretion to reduce the sentence upon
relinquishment or revocation, the defendant should be required to request as much (Hurst
notwithstanding). If it can be said that the issue of whether to reduce a sentence is “inherent” or
always at play in the relinquishment or revocation process, then it would seem there should be
discussion about it, by way of request or objection. 5 Likely most, if not all, trial court’s think
about whether to reduce the sentence upon relinquishment or revocation (although not often
evident from our record). But, as stated in Perry regarding the necessity of objection or request:
               This limitation on appellate-court authority serves to induce the timely
       raising of claims and objections, which gives the [trial] court the opportunity to
       consider and resolve them. Puckett v. United States, 556 U.S. 129, ___, 129 S.
       Ct. 1423, 1428, 173 L.Ed.2d 266, 274 (2009). Ordinarily, the trial court is in the
       best position to determine the relevant facts and to adjudicate the dispute. Id.



5
         On occasion, appellants challenge the district court’s failure to sua sponte reduce the
sentence, but expressly note that, while a Rule 35 request for leniency was actually filed, no
appeal is taken from its denial because it was not supported by new or additional information.
So, oddly, the actual request for leniency is not the subject of that appeal, but the silence of the
district court in executing the sentence without modification, when no request was made.


                                                  6
Perry, 150 Idaho at 224, 245 P.3d at 976. Accordingly, it seems as though the process should be
that the defendant can contest both the decision to execute and the appropriateness of the
sentence to be executed at the time of relinquishment or revocation. 6 Should the defendant fail
to request modification, then appellate review would be impermissible except as to
relinquishment or revocation itself. 7
       It should also be remembered that the defendant has multiple options to challenge an
excessive sentence and/or request reduction. The primary avenue for a defendant to appeal a
sentence is through direct appeal. A defendant has forty-two days to appeal the sentence after
the judgment of conviction is entered. Idaho Appellate Rule 14(a). However, if the court retains
jurisdiction, pursuant to Idaho Code § 19-2601, the time to appeal the sentence is “enlarged by
the length of time between entry of the judgment of conviction and entry of the order
relinquishing jurisdiction or placing the defendant on probation.” I.A.R. 14(a). A defendant
must still file an appeal challenging the judgment of conviction within forty-two days of the
judgment. Id. Where a defendant is first placed on probation, and then the court retains
jurisdiction after probation is revoked, the defendant must file an appeal of the sentence within
forty-two days of the judgment. See State v. Williams, 126 Idaho 39, 41-42, 878 P.2d 213, 215-
16 (Ct. App. 1994). Idaho Criminal Rule 35(b) allows a defendant to file a motion to reduce the
sentence within 120 days from when the judgment of conviction is filed or within 120 days of
when the court releases retained jurisdiction. A defendant may also move for a reduction of
sentence within fourteen days of an order revoking probation.        Id.   As noted, however, a


6
        Although, as noted, there remains the problem of relinquishment without hearing and the
rule in Hurst.
7
        As another concern, this Court has stated:
        It is a common practice for a trial court to impose a rather severe underlying
        sentence as an incentive for the defendant to perform well in the retained
        jurisdiction program and to comply with the probation terms if the defendant is
        ultimately placed on probation. A lengthy underlying sentence also preserves the
        judge’s options until such time as probation may be denied or revoked, when the
        court can decide whether the sentence should be reduced. A long underlying
        sentence thus provides the judge a hedge against the uncertainty of the
        defendant’s future performance.
State v. Jones, 141 Idaho 673, 676, 115 P.3d 764, 767 (Ct. App. 2005). If that is the case, it may
be even more important to expressly review the appropriateness of the underlying sentence upon
the eventual relinquishment or revocation.

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defendant is limited to one motion to reduce the sentence under Idaho Criminal Rule 35(b).
Thus, there are avenues for sentence review and relief.
       Based upon the foregoing discussion, we hold that Perry and Carter apply to preclude an
appeal challenging the trial court’s failure to sua sponte reduce a sentence upon relinquishment
of jurisdiction or revocation of probation. Clontz claims the district court erred by failing to sua
sponte reduce his sentence pursuant to its discretionary authority under Rule 35. Thus, Clontz’s
claim is based upon a rule violation, not upon a violation of one of his constitutional rights. As
Clontz’s claim fails to satisfy the threshold requirement established in Perry, Clontz’s claim is
not reviewable as it does not constitute fundamental error. Therefore, the order relinquishing
jurisdiction and directing execution of Clontz’s previously suspended sentence is affirmed.
       Judge LANSING and Judge MELANSON CONCUR.




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