               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 43706

STATE OF IDAHO,                                 )    2016 Opinion No. 55S
                                                )
       Plaintiff-Respondent,                    )    Filed: October 21, 2016
                                                )
v.                                              )    Stephen W. Kenyon, Clerk
                                                )
DANIEL JOSEPH SMITH,                            )    SUBSTITUTE OPINION
                                                )    THE COURT’S PRIOR OPINION
       Defendant-Appellant.                     )    DATED AUGUST 10, 2016, IS
                                                )    HEREBY WITHDRAWN
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Samuel A. Hoagland, District Judge.

       Order denying motion for appointment of counsel and reduction of sentence,
       affirmed.

       Eric D. Fredericksen, Interim 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.
                 ________________________________________________

GUTIERREZ, Judge
       Daniel Joseph Smith appeals from the district court’s order denying Smith’s Idaho
Criminal Rule 35 motion for reduction of sentence. He argues the district court erred by not
appointing counsel to represent Smith in pursuing the motion; or alternatively, the district court
abused its discretion by denying Smith’s motion on the merits. We affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Smith pled guilty to possession of methamphetamine, Idaho Code § 37-2732(c). The
district court imposed a unified sentence of seven years, with a minimum period of confinement
of three years. Smith filed a motion for appointment of counsel and Idaho Criminal Rule 35
motion for reduction of sentence. The district court denied the request for appointment of

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counsel, finding that the Rule 35 motion was not a proceeding that a reasonable person with
adequate means would be willing to bring at his or her own expense and therefore was frivolous.
The district court also denied Smith’s Rule 35 motion on the merits. Smith timely appeals
                                                II.
                                           ANALYSIS
       Smith claims the district court erred in denying the request for appointment of counsel.
Alternatively, Smith argues that the district court abused its discretion in denying Smith’s
Rule 35 motion for reduction of his sentence. We address each issue in turn.
A.     Appointment of Counsel
       Smith contends the district court erred in denying the request for appointment of counsel
on the grounds that Smith’s Rule 35 motion was frivolous. A criminal defendant has the
statutory right to counsel at all critical stages of the criminal process, including pursuit of a
Rule 35 motion. I.C. §§ 19-851, 19-852; I.C.R. 44; State v. Wade, 125 Idaho 522, 523, 873 P.2d
167, 168 (Ct. App. 1994). However, a district court may deny appointment of counsel if it finds
the motion is frivolous. I.C. § 19-852(2)(c). A motion is frivolous if a reasonable person with
adequate means would not be willing to bring the motion at his or her own expense. Id.
Whether a motion is frivolous for purposes of appointment of counsel is a question of law that
we review de novo. State v. Carter, 157 Idaho 900, 902, 341 P.3d 1269, 1271 (Ct. App. 2014).
       In presenting a Rule 35 motion, a 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). Thus, any
colorable merit to a Rule 35 motion must arise from new or additional information presented in
the motion or accompanying documentation that would create a basis for reduction of the
sentence. Wade, 125 Idaho at 525, 873 P.2d at 170. A Rule 35 motion that does not present
such new information is not one that a reasonable person with adequate means would bring
before the district court at his or her own expense and is, therefore, frivolous. Carter, 157 Idaho
at 903, 341 P.3d at 1272. Moreover, a Rule 35 motion is frivolous if the basis for the claim was
previously considered by the district court. Carter, 157 Idaho at 902-03, 341 P.3d at 1271-72.
       Smith contends the information he provided to the district court in support of the Rule 35
motion is sufficient to warrant the appointment of counsel. Accompanying Smith’s Rule 35
motion, Smith submitted a letter addressed to the district court. The first piece of information

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Smith offers as a basis for his motion is his attestation that, since his HIV diagnosis in May 2015,
he has “followed the recommendations of [his] doctors, [has] taken steps to prevent further
spread of the disease, [is] correctly medicated and [is] continuing proper treatment recommended
by health professionals.” Smith contends that this is a valid basis for a reduction because it
contradicts a concern expressed and relied upon by the district court at sentencing.
       During sentencing, the district court expressed significant concern with Smith’s extensive
history of drug abuse and its collateral effects. The district court pointed out that since Smith’s
first drug-related felony conviction in 2002, he had been convicted of three additional drug-
related felonies, violated probation and parole numerous times, was unsuccessful in a rider
program, and failed other programming attempts. While still considering Smith’s history, the
district court stated: “After [Smith] was discharged [from custody in May 2014] . . . [Smith]
engaged in reckless activity which resulted in certain sexually transmitted diseases, actually a
number of them, and I found myself wondering between 2014 and his current arrest [in March
2015] how many others were inflicted by this reckless behavior.” It is this concern that Smith
attempts to contradict.
       While not dispositive of the issue, we first note that Smith’s proffered information fails to
contradict the district court’s concern. The district court’s statement indicates its focus on
Smith’s behavior prior to his arrest in March 2015, while Smith’s written statement addresses
only his behavior after May 2015. Thus, nothing in his statement contradicts the district court’s
concern regarding the impact of Smith’s prior conduct.
       More importantly, however, the proffered information was part of the basis that the
district court already considered in imposing Smith’s sentence.         The district court already
considered information provided by Smith regarding the way in which he was treating his health
after being diagnosed with HIV. In a statement to the district court in Smith’s presentence
investigation report (PSI), Smith advised the court that Smith was “taking charge of [his] health.”
Implicit in this expression is the assumption that Smith was taking reasonable measures to
protect others from exposure to Smith’s diseases, as the medical records included in the PSI
indicate that Smith expressed awareness that he would need to change his behavior to prevent
transmission.    However, also included in the PSI is Smith’s admission to using drugs
intravenously while out on bond in early July 2015 and to engaging in unprotected sexual
activity around the same time. Additionally, the medical records indicate that Smith did not start

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taking his prescribed medication until he was in custody in late July 2015. During sentencing,
Smith admitted to having reviewed the PSI report and offered no objections or corrections
regarding its content. Because the district court already had information regarding Smith’s
behavior after his diagnosis, which included Smith’s own admissions regarding his post-
diagnosis conduct, there is no indication that this new information would provide a basis for
reducing Smith’s sentence.
       The second piece of information Smith argues the district court should have considered is
the effect that his brother’s suicide, which occurred in March 2015, has had on him. He urged
the district court to consider that his brother’s suicide and Smith’s diagnosis had “a profound
impact on [his] attitude and outlook on life” and that he had “never been more determined to turn
[his] back on a lifestyle that cost [his] family so much.”        He contends that although his
“diagnosis and the fact that his brother had committed suicide were both mentioned in various
places in the record, nowhere in the record was there an articulation of the fact that Mr. Smith’s
amenability to treatment had changed as a result of the combination of those facts.”
       Smith’s argument rests on his assertion that certain circumstances, i.e., his disease and his
brother’s suicide, have made him amenable to treatment. However, in imposing sentence, the
district court was not only aware that Smith’s brother committed suicide and that Smith was
diagnosed with HIV, the court was also aware that Smith was impacted by these circumstances.
The PSI includes several references to Smith’s desire to obtain counseling to help deal with both
circumstances. Moreover, the district court considered Smith’s amenability to treatment at great
length, focusing primarily upon Smith’s extensive history of drug abuse despite his participation
in numerous treatment, educational, and programming therapies.                 The district court
acknowledged, “[Smith] indicates high motivation for treatment, but I note he has had plenty of
treatment over the last 15 years.” Thus, it is clear from the record that the district court already
considered the basis of Smith’s claim that he was amenable to treatment.
       Smith’s Rule 35 motion failed to provide the district court with any new or additional
information that would create a basis for reduction of his sentence.          Thus, the motion is
frivolous, as it is not one that a reasonable person with adequate means would bring at his or her
own expense. The district court did not err in denying Smith’s motion for appointment of
counsel on the grounds that his motion was frivolous.



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B.     Rule 35 Motion
       Alternatively, Smith argues that the district court abused its discretion in denying his
Rule 35 motion on the merits. A motion for reduction of sentence under Rule 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. Huffman, 144 Idaho at 203, 159 P.3d at 840.
       As discussed above, the information Smith provided in support of his Rule 35 motion
was information that was already in his possession and already considered by the district court in
imposing Smith’s sentence. Because Smith provided the district court with no new or additional
information to support finding Smith’s sentence excessive, we conclude no abuse of discretion
has been shown.     Therefore, the district court’s order denying Smith’s Rule 35 motion is
affirmed.
                                               III.
                                        CONCLUSION
       Smith has failed to show that he was entitled to appointment of counsel or that the district
court abused its discretion in denying the Rule 35 motion. Accordingly, the district court’s order
denying Smith’s Rule 35 motion is affirmed.
       Chief Judge MELANSON and Judge HUSKEY CONCUR.




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