               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 42652

STATE OF IDAHO,                                )    2015 Unpublished Opinion No. 598
                                               )
       Plaintiff-Respondent,                   )    Filed: August 26, 2015
                                               )
v.                                             )    Stephen W. Kenyon, Clerk
                                               )
MICHAEL CHARLES WILLIAMS,                      )    THIS IS AN UNPUBLISHED
                                               )    OPINION AND SHALL NOT
       Defendant-Appellant.                    )    BE CITED AS AUTHORITY
                                               )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Bingham County. Hon. David C. Nye, District Judge.

       Order denying Rule 35 motion and motion for appointment of counsel, affirmed.

       Michael C. Williams, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GRATTON, Judge
       Michael Charles Williams appeals from the district court’s order denying his Rule 35
motion and motion for appointment of counsel. We affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       A jury found Williams guilty of voluntary manslaughter with a deadly weapon
enhancement. The district court imposed a fifteen-year determinate sentence for voluntary
manslaughter, and a consecutive unified term of fifteen years with ten years determinate for the
enhancement.
       Williams filed a motion to correct an illegal sentence, asserting that the district court
erred in characterizing the sentence for the deadly weapon enhancement as consecutive to the
voluntary manslaughter sentence. Williams also filed a motion for appointment of counsel. The
district court entered an order denying both motions. Williams timely appeals.

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                                               II.
                                          ANALYSIS
       Williams asserts his sentence was illegal because the district court deliberately
mischaracterized the sentence for the deadly weapon enhancement as consecutive to the sentence
for the voluntary manslaughter charge. 1 An illegal sentence under Idaho Criminal Rule 35 is one
in excess of a statutory provision or otherwise contrary to applicable law. State v. Alsanea,
138 Idaho 733, 745, 69 P.3d 153, 165 (Ct. App. 2003). The district court may correct an illegal
sentence at any time. I.C.R. 35(a). 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).
       Williams is correct that “the term ‘consecutive’ is inappropriate when referring to a
sentence enhancement for use of a firearm.” State v. Camarillo, 116 Idaho 413, 414, 775 P.2d
1255, 1256 (Ct. App. 1989). In Camarillo, this Court stated that a base sentence and weapon
enhancement “should be construed as one continuous sentence,” and use of the term
“consecutive” in sentencing “may connote, inaccurately, the existence of two separate
sentences.” Id. However, we went on to state that “the mere choice of an inappropriate word
does not give rise to Rule 35 relief, absent a showing that it has caused the enhanced sentence to
be administered improperly.” Id.
       Voluntary manslaughter is punishable by a maximum sentence of fifteen years.
I.C. § 18-4007(1). Use of a deadly weapon increases the maximum sentence of a voluntary
manslaughter charge by fifteen years. I.C. § 19-2520. Thus, the maximum sentence for a
voluntary manslaughter charge with a weapon enhancement is thirty years. In this case, the
district court imposed a unified thirty-year sentence with twenty-five years determinate. This
sentence is within the statutory maximums and not otherwise contrary to applicable law.


1
        Williams also asserts his sentence violates due process and equal protection, exceeds the
maximum allowable term under Idaho Code § 19-2520, and is contrary to I.C. § 18-308.
Further, Williams asserts the district court impermissibly used a weapon enhancement to extend
the determinate portion of his sentence beyond the statutory maximum for the base sentence. We
need not address these arguments because they were not raised below, do not have any legal
substance, and do not affect our disposition.
                                                2
Williams’ sentence is legal despite the district court’s terminology. There is no indication the
district court’s terminology caused improper administration of Williams’ sentence. Further,
whether the district court deliberately used the term “consecutive” is immaterial if the sentence
was not illegal or improperly administered. Thus, Williams’ sentence is not illegal and the
district court correctly denied Williams’ Rule 35 motion.
       Williams also argues that the district court improperly denied his motion for appointment
of counsel because, he asserts, his motion was not frivolous. 2 A criminal defendant has a 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); Murray v. State, 121 Idaho 918, 923 n.3, 828 P.2d 1323, 1328 n.3
(Ct. App. 1992). However, at its discretion, the district court may deny a defendant appointed
counsel in a Rule 35 motion if the court finds that 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 own expense. Id. Whether a motion is frivolous is a question of law that we
freely review. Wade, 125 Idaho at 525, 873 P.2d at 170.
       Williams asserts that a reasonable person with adequate means would bring his claim
because it has “the potential to reduce the determinate portion of his sentence by up to fifteen
(15) years.” The district court found that Williams’ Rule 35 motion was frivolous because it
lacked legal merit and that “appointing counsel to help Williams flesh out or develop [his
motion] would only serve to waste time and resources.” We agree. There is no indication that
Williams’ sentence was illegal or improperly administered. Williams’ desire to reduce the
determinate portion of his sentence does not legitimize his claim. Thus, appointing counsel to
help Williams pursue his motion would have been futile. Accordingly, the district court properly
found that Williams’ Rule 35 motion was frivolous and that he was not entitled to appointed
counsel in arguing the motion.




2
        Additionally, Williams asserts the district court violated his due process and equal
protection rights by denying him appointed counsel and a hearing. We need not address this
argument because it was not raised below, does not have any legal substance, and does not affect
our disposition.
                                                     3
                                             III.
                                          CONCLUSION
       Williams’ Rule 35 motion lacked legal merit and he was not entitled to appointed counsel
in arguing the motion. The district court’s order denying Williams’ Rule 35 motion and motion
for appointment of counsel is affirmed.
       Chief Judge MELANSON and Judge GUTIERREZ CONCUR.




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