               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                           Docket No. 45051

STATE OF IDAHO,                                   )   2018 Unpublished Opinion No. 355
                                                  )
       Plaintiff-Respondent,                      )   Filed: February 14, 2018
                                                  )
v.                                                )   Karel A. Lehrman, Clerk
                                                  )
JAMES J. FLEMING,                                 )   THIS IS AN UNPUBLISHED
                                                  )   OPINION AND SHALL NOT
       Defendant-Appellant.                       )   BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Shoshone County. Hon. Scott L. Wayman, District Judge.

       Orders denying Idaho Criminal Rule 35 motion for reduction of sentence and
       motion for appointment of counsel, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Jason C. Pintler, 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; GUTIERREZ, Judge;
                                  and LORELLO, Judge
                   ________________________________________________

PER CURIAM
       James J. Fleming pled guilty to one count of lewd conduct with a minor under sixteen,
Idaho Code § 18-1508, and entered an Alford 1 plea to one count of sexual abuse of a child under
sixteen, I.C. § 18-1506. The district court imposed concurrent unified sentences of forty years
with fifteen years determinate for lewd conduct and twenty-five years with fifteen years
determinate for sexual abuse of a child.



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

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       Fleming filed an Idaho Criminal Rule 35 motion for correction of an illegal sentence,
asserting that his sentence is illegal because (a) he believed he was entering an Alford plea to
both counts; (b) his counsel was ineffective in failing to ensure the prosecutor understood that
Fleming would enter an Alford plea to both counts; (c) he believed the purpose of the Alford plea
was to allow him to withdraw the plea if the sentence did not come close to what he argued was
appropriate; (d) the prosecutor committed misconduct by allowing Fleming to enter into a sham
plea agreement; and (e) because of the actions of his trial counsel and the prosecutor, the district
court did not have jurisdiction either to accept his guilty plea or to sentence him, rendering his
sentence illegal. The district court denied Fleming’s motion and his request for counsel, finding
that Fleming’s sentence is not illegal and his motion to correct an illegal sentence was frivolous.
Fleming appeals.
       In State v. Clements, 148 Idaho 82, 87, 218 P.3d 1143, 1148 (2009), the Idaho Supreme
Court held that the term “illegal sentence” under Rule 35 is narrowly interpreted as a sentence
that is illegal from the face of the record, i.e., does not involve significant questions of fact or
require an evidentiary hearing. Rule 35 is a “narrow rule,” and because an illegal sentence may
be corrected at any time, the authority conferred by Rule 35 should be limited to uphold the
finality of judgments. State v. Farwell, 144 Idaho 732, 735, 170 P.3d 397, 400 (2007). 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. Clements, 148 Idaho at 87, 218 P.3d at 1148.
       Idaho Code § 19-852(2)(c) governs the appointment of counsel in post-judgment criminal
proceedings and requires that counsel be appointed to pursue a Rule 35 motion, “unless the court
in which the proceeding is brought determines that it is not a proceeding that a reasonable person
with adequate means would be willing to bring at his own expense and is therefore a frivolous
proceeding.” See also State v. Wade, 125 Idaho 522, 523-24, 873 P.2d 167, 168-69 (Ct. App.
1994). A determination of whether a Rule 35 motion is frivolous for purposes of applying I.C.
§ 19-852(2)(c) is based on the contents of the motion itself and any accompanying
documentation supporting that motion. Wade, 125 Idaho at 525, 873 P.2d at 170. Thus, a
district court is within its discretion to deny a request for court-appointed counsel if the court



                                                 2
appropriately finds that the claims presented are frivolous. Swisher v. State, 129 Idaho 467, 468-
69, 926 P.2d 1314, 1315-16 (Ct. App. 1996).
       The record supports the district court’s finding that Fleming’s sentence is not illegal and
his claims were frivolous. Therefore, the district court properly denied Fleming’s motions for
correction of an illegal sentence and appointment of counsel. Accordingly, we conclude no
abuse of discretion has been shown and the district court’s orders denying Fleming’s Rule 35
motion and motion for appointment of counsel are affirmed.




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