               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 39063

STATE OF IDAHO,                                   )     2013 Unpublished Opinion No. 339
                                                  )
       Plaintiff-Respondent,                      )     Filed: January 23, 2013
                                                  )
v.                                                )     Stephen W. Kenyon, Clerk
                                                  )
MICHELLE JOY WATERS,                              )     THIS IS AN UNPUBLISHED
                                                  )     OPINION AND SHALL NOT
       Defendant-Appellant.                       )     BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Ronald J. Wilper, District Judge.

       Order modifying no contact order and order denying I.C.R. 35 motion, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Sarah E. Tompkins, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Michelle Joy Waters appeals from her judgment and conviction entered following her
plea of guilty to arson in the second degree, Idaho Code § 18-803, and driving under the
influence, I.C. § 18-8004. Specifically, Waters challenges the district court’s order clarifying her
no contact order and denying her Idaho Criminal Rule 35 motion. We affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       Waters was arrested after she started a fire at her ex-husband’s residence while her ex-
husband and three of her children were inside. Following an Alford plea, 1 the district court
imposed a unified sentence of fifteen years with three and one-half years determinate. As part of
its judgment, the district court ordered “that the defendant shall have no contact with Dr. Waters



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


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or any of her [Waters] children for an absolute period of two (2) years. After June 20, 2013, the
defendant may communicate with the protected parties in writing.”
       Subsequently, Waters filed several motions to modify and/or clarify the no contact order.
Waters also filed a Rule 35 motion requesting a reduction of her sentence. Following multiple
hearings, the district court clarified the no contact order and denied the Rule 35 motion. Waters
timely appeals.
                                                II.
                                           ANALYSIS
A.     No Contact Order
       Waters claims, for the first time on appeal, that the district court entered an invalid no
contact order by failing to meet the requirements set forth in I.C.R. 46.2. 2 Generally, issues not



2
       I.C.R. 46.2 states:
       (a)     No contact orders issued pursuant to Idaho Code § 18-920 shall be in writing and
               served on or signed by the defendant. Each judicial district shall adopt by
               administrative order a form for no contact orders for that district. No contact
               orders must contain, at a minimum, the following information:
               (1)     The case number, defendant’s name and victim’s name;
               (2)     A distance restriction;
               (3)     That the order will expire at 11:59 p.m. on a specific date, or upon
                       dismissal of the case;
               (4)     An advisory that:
                       (a)    A violation of the order may be prosecuted as a separate crime
                              under I.C. § 18-920 for which no bail will be set until an
                              appearance before a judge, and the possible penalties for this
                              crime,
                       (b)    The no contact order can only be modified by a judge, and
                       (c)    When more than one domestic violence protection order is in
                              place, the most restrictive provision will control any conflicting
                              terms of any other civil or criminal protection order. Whenever a
                              no contact order is issued, modified or terminated by the court, or
                              the criminal case is dismissed, the clerk shall give written
                              notification to the records department of the sheriff’s office in the
                              county in which the order was originally issued, immediately. No
                              contact orders shall be entered into the Idaho Law Enforcement
                              Telecommunications System (ILETS).
       (b)     A victim of a criminal offense for which a no contact order has issued may
               request modification or termination of that order by filing a written and signed
               request with the clerk of the court in which the criminal offense is filed. Forms
               for such a request shall be available from the clerk. The court shall provide for a

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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). Idaho decisional law, however, has long allowed appellate
courts to consider a claim of error to which no objection was made below if the issue presented
rises to the level of fundamental error. See State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285
(2007); State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262 (1971). In State v. Perry, 150
Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court abandoned the definitions it had
previously utilized to describe what may constitute fundamental error. The Perry Court held that
an appellate court should reverse an unobjected-to error when the defendant persuades the court
that the alleged error: (1) violates one or more of the defendant’s unwaived constitutional rights;
(2) the error is clear or obvious without the need for reference to any additional information not
contained in the appellate record; and (3) the error affected the outcome of the trial proceedings.
Id. at 226, 245 P.3d at 978.
       Despite multiple motions and hearings, Waters never argued to the district court that the
no contact order was invalid because it did not meet the requirements of I.C.R. 46.2. Instead,
Waters only argued that the no contact order be modified or clarified.           These arguments
included: (1) that the absolute two-year no contact prohibition include the year of no contact she
had already served as a result of her incarceration pending her charges; (2) that her eldest son be
removed from the no contact order because he was not inside the house when it was set on fire;
and (3) that the no contact order be extinguished as to each child upon that child’s eighteenth
birthday. The district court modified the no contact order by allowing Waters’ prior time in
incarceration to count towards the two-year prohibition on contact, thereby changing the
expiration date of the two-year prohibition to August 6, 2012. The district court also clarified
that once each child reached the age of eighteen, the no contact order would be extinguished as
to that child, so long as the two-year prohibition on contact had expired.
       The district court also entertained a motion to modify the no contact order made by
Waters’ eldest son. The son reached the age of eighteen prior to the expiration of the two-year
prohibition on contact and moved the court to terminate the no contact order as to himself. At a




               hearing within fourteen days of the request and shall provide notification of the
               hearing to the victim and the parties.


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hearing, Waters did not present argument, but did manifest that she did not object to the motion.
The district court granted the motion and terminated the no contact order as to the eldest son, so
long as the son agreed not to facilitate communication between Waters and the remaining minor
children.
        Waters now argues, for the first time on appeal, that the no contact order is invalid
because it does not follow proper form, does not identify the children by name, does not provide
a distance restriction, does not provide advisories set out in Rule 46.2, and does not state that if
future no contact orders are issued, the more restrictive provisions would control. As noted,
none of these arguments were presented to the district court. Further, Waters does not attempt to
establish fundamental error on appeal. Therefore, we need not entertain this issue. Even if we
were to analyze the issue of fundamental error, Waters has not satisfied any of the three
requirements of Perry. As to violation of an unwaived constitutional right, Waters’ argument is,
at best, that due process is the catalyst for the notice requirements in Rule 46.2 but does not
argue that her due process rights were violated or that she lacked the notice the requested
formality of following the rule would provide. As to clear error, while the failure of the district
court to follow Rule 46.2 is clear from the record, whether her failure to object to the lack of
information and formalities set out in the rule was or was not a tactical or strategic decision is not
clear from the record. She had multiple opportunities to object or present such argument at the
hearings, but chose not to do so. Finally, Waters has shown no prejudice by the failure of the
district court to follow Rule 46.2. 3
B.      Rule 35 Motion
        Waters claims that the district court abused its discretion when it denied her Rule 35
motion to reduce her sentence. 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


3
       As the State points out, Waters is not without recourse. Her claim of error attacks only
the incorrect format of the no contact order entered against her and not the substance of that
order. Therefore, she may file a motion at any time to correct a clerical mistake under I.C.R. 36.

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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).
       In the instant case, Waters filed a Rule 35 motion with the district court and provided the
court with new and additional information that was not available to the court at the time of her
sentencing. This information included: (1) that due to prison overcrowding, Waters had not
received any mental health or substance abuse treatment and would not receive such treatment
until 2013; (2) that Waters never received mental health or drug treatment through the Program
for Recovering Nurses; and (3) that Waters was a model prisoner during her incarceration.
Additionally, Waters also provided the district court with a letter of support from her father. The
district court denied the motion, finding that “the sentence was appropriate at the time it was
imposed and the Court is not convinced that circumstances have changed or that the Court
improperly imposed the sentence.”        Based upon our review of the record and the new
information provided to the district court, we cannot say that the district court abused its
discretion in denying Waters’ Rule 35 motion.
                                                III.
                                        CONCLUSION
       Waters’ has failed to show fundamental error relative to the no contact order.
Additionally, we conclude the district court did not abuse its discretion in denying Waters’
Rule 35 motion. Therefore, the district court’s order modifying the no contact order and the
district court’s order denying Waters’ Rule 35 motion are affirmed.
       Chief Judge GUTIERREZ and Judge LANSING CONCUR.




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