               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 39109

STATE OF IDAHO,                                  )     2012 Unpublished Opinion No. 498
                                                 )
       Plaintiff-Respondent,                     )     Filed: May 30, 2012
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
ERIC THOMAS FERRIER,                             )     THIS IS AN UNPUBLISHED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, Twin
       Falls County. Hon. Randy J. Stoker, District Judge.

       Order denying motion for correction of sentence, affirmed.

       Nevin, Benjamin, McKay & Bartlett LLP; Deborah Whipple, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Chief Judge
       Eric Thomas Ferrier appeals from the district court’s denial of his Idaho Criminal Rule 35
motion for correction of sentence. We affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Pursuant to a plea agreement, Ferrier pled guilty to two counts of second degree murder,
Idaho Code §§ 18-4001, 18-4003. On April 19, 1999, the district court entered judgment against
Ferrier and imposed two concurrent life sentences. At the time of sentencing, he was represented
by the Twin Falls County Public Defender.
       More than a decade later, Ferrier filed a motion for correction or reduction of sentence
under I.C.R. 35. In his motion, he alleged that his sentences were illegal. Ferrier requested
counsel, and the district court appointed a public defender from the Twin Falls County Public
Defender’s office. Ferrier subsequently moved for appointment of substitute counsel, arguing
that the public defender’s office was ineffective, as its prior representation had resulted in his


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current sentences. In his motion, Ferrier claimed the appointment of the public defender created
a conflict of interest. The district court did not rule on the motion to appoint substitute counsel.
The district court denied Ferrier’s Rule 35 motion after a hearing on the ground that the
sentences imposed were not illegal on the face of the record. Ferrier timely appeals.
                                                 II.
                                          DISCUSSION
       On appeal, Ferrier asserts that his sentence is illegal and should be vacated. Ferrier
contends that Idaho statutes do not allow imposition of a fixed life sentence for second degree
murder; therefore, the district court erred in denying his Rule 35 motion to correct his sentence.
He further contends that the district court’s failure to rule on his motion to appoint substitute
counsel requires reversal. The State contends that Ferrier’s sentence is not illegal, his Rule 35
motion is frivolous, and the district court did not err by not ruling on the motion to appoint
substitute counsel or, alternatively, that any error was harmless.
       Pursuant to Rule 35, the district court may correct an illegal sentence at any time. 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); State v.
Rodriguez, 119 Idaho 895, 897, 811 P.2d 505, 507 (Ct. App. 1991).
       The term “illegal sentence” under Rule 35 is narrowly interpreted as a sentence that is
illegal from the face of the record. State v. Clements, 148 Idaho 82, 86, 218 P.3d 1143, 1147
(2009). “Rule 35 is not a vehicle designed to reexamine the facts underlying the case to
determine whether a sentence is illegal; rather, the rule only applies to a narrow category of cases
in which the sentence imposes a penalty that is simply not authorized by law or where new
evidence tends to show that the original sentence was excessive.” Id.; see also State v. Alsanea,
138 Idaho 733, 745, 69 P.3d 153, 165 (Ct. App. 2003) (“An illegal sentence under Rule 35 is one
in excess of a statutory provision or otherwise contrary to applicable law.”).
       While his argument is somewhat unclear, Ferrier appears to argue that I.C. § 18-4004
does not allow a fixed life sentence for second degree murder, and also that the sentencing court




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did not specify a minimum period of confinement pursuant to I.C. § 19-2513. 1 Idaho Code § 18-
4004 sets forth the authorized punishment for second degree murder, stating: “Every person
guilty of murder of the second degree is punishable by imprisonment not less than ten (10) years
and the imprisonment may extend to life.” Idaho Code § 19-2513 provides in pertinent part:
“The court shall specify a minimum period of confinement and may specify a subsequent
indeterminate period of custody. The court shall set forth in its judgment and sentence the
minimum period of confinement and the subsequent indeterminate period, if any, provided, that
the aggregate sentence shall not exceed the maximum provided by law.”
       In regard to I.C. § 19-2513, the district court sentenced Ferrier to a “fixed term of life
without the eligibility of parole” on each of the two counts, with the sentences running
concurrently. Contrary to Ferrier’s position, the language used by the district court clearly
indicates that the minimum period of confinement was life, which satisfies the statute’s
requirements. A pronouncement of a subsequent indeterminate period of confinement is not
mandated. See I.C. § 19-2513. Moreover, given the nature of a determinate life sentence, there
was no indeterminate period of confinement for the district court to set forth.           Therefore,
Ferrier’s argument that his sentence is illegal due to the district court’s alleged violation of I.C.
§ 19-2513 fails.
       Ferrier’s sentence is not otherwise illegal from the face of the record. The sentence falls
within the range of punishment authorized by statute. See I.C. § 18-4004. Therefore, Ferrier’s
sentence is not “in excess of a statutory provision.” Alsanea, 138 Idaho at 745, 69 P.3d at 165.
Nor is Ferrier’s sentence otherwise contrary to applicable law. Idaho appellate courts have
regularly upheld fixed life sentences imposed on convictions for second degree murder. See,
e.g., State v. Windom, 150 Idaho 873, 881, 253 P.3d 310, 318 (2011); State v. Cope, 142 Idaho
492, 502, 129 P.3d 1241, 1251 (2006); State v. Burdett, 134 Idaho 271, 279, 1 P.3d 299, 307 (Ct.
App. 2000). Thus, Ferrier’s sentence is not illegal, and the district court did not err by denying
Ferrier’s Rule 35 motion.


1
        Ferrier also mentioned I.C. § 19-2515(7)(c) in his Rule 35 motion, but only in passing.
He also mentions the provision in his brief on appeal, but fails to provide any argument or
indication of its relationship to his case. A party waives an issue on appeal if either authority or
argument is lacking. State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996). In any
event, that section deals with capital cases and is, therefore, inapplicable.


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       Ferrier also contends that the district court erred by failing to rule on his motion for
appointment of substitute counsel, or inquiring into the conflict of interest he alleged before
denying his Rule 35 motion. A criminal defendant has the statutory right to counsel, including
pursuit of a Rule 35 motion. See I.C. § 19-852; Murray v. State, 121 Idaho 918, 923 n.3, 828
P.2d 1323, 1328 n.3 (Ct. App. 1992). This right, however, is not boundless; a district court may
deny appointment of counsel if the Rule 35 motion is frivolous, i.e., one that a reasonable person
with adequate means would not be willing to bring at his or her own expense. I.C. § 19-
852(b)(3).   Ferrier’s Rule 35 motion is frivolous because, as we discussed above, there is
absolutely nothing illegal about the sentence he received. Thus, even though it chose to do so,
the district court was under no obligation to appoint counsel in the first instance. Ferrier had no
right to appointed counsel, much less a right to appointed counsel of his choosing. Moreover,
even if we assume error by the district court, any error is harmless. Ferrier’s Rule 35 motion was
frivolous; so the district court’s failure to rule on Ferrier’s motion for substitute counsel could
not have affected his substantial rights.     See I.C.R. 52 (“Any error, defect, irregularity or
variance which does not affect substantial rights shall be disregarded.”).
       Ferrier does not just argue that his statutory right to counsel was violated; he also argues
that his Sixth Amendment right to counsel was violated when the district court failed to address
his motion for substitute counsel. The Sixth Amendment guarantees a criminal defendant the
right to counsel during all “critical stages” of the adversarial proceedings against him. Estrada v.
State, 143 Idaho 558, 562, 149 P.3d 833, 837 (2006) (citing United States v. Wade, 388 U.S. 218,
224 (1967)). In determining whether a particular stage is “critical,” it is necessary “to analyze
whether potential substantial prejudice to defendant’s rights inheres in the particular
confrontation and the ability of counsel to help avoid that prejudice.” Estrada, 143 Idaho at 562,
149 P.3d at 837. Although Ferrier contends that Rule 35 motions for correction of illegal
sentences are a “critical stage” of the proceedings, he cites no authority for such a proposition. A
Rule 35 motion to correct an illegal sentence does not involve a “particular confrontation” where
there is potential for substantial prejudice to a defendant’s rights. Moreover, it is unclear what
assistance counsel could provide in such cases, since any alleged error must be clear from the
face of the record. See Clements, 148 Idaho at 86, 218 P.3d at 1147. As such, Ferrier has failed
to demonstrate a constitutional violation of a right to counsel.




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                                                III.
                                         CONCLUSION
       Ferrier’s claim that his sentence is illegal is without merit. Furthermore, any error by the
district court in failing to rule on his motion for substitute counsel was harmless. Therefore, the
district court’s order denying the motion to correct an illegal sentence is affirmed.
       Judge LANSING and Judge GUTIERREZ CONCUR.




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