                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 36452

STATE OF IDAHO,                                     )     2010 Unpublished Opinion No. 446
                                                    )
          Plaintiff-Respondent,                     )     Filed: May 4, 2010
                                                    )
v.                                                  )     Stephen W. Kenyon, Clerk
                                                    )
DALE R. ESTES,                                      )     THIS IS AN UNPUBLISHED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,
          Elmore County. Hon. Michael E. Wetherell, District Judge.

          Judgment of conviction and unified sentence of thirteen years, with a minimum
          period of confinement of three years, for trafficking in marijuana, affirmed, order
          denying motion for appointment of counsel and denying I.C.R. 35 motion for
          reduction of sentence, affirmed.

          Molly J. Huskey, State Appellate Public Defender; Diane M. Walker, Deputy
          Appellate Public Defender, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
          Attorney General, Boise, for respondent.
                     ______________________________________________
MELANSON, Judge
          Dale R. Estes appeals from his judgment of conviction and sentence for trafficking in
marijuana and the district court’s order denying his motion for appointment of counsel and
denying his I.C.R. 35 motion for reduction of sentence. For the reasons set forth below, we
affirm.
                                                  I.
                                    FACTS AND PROCEDURE
          Estes entered a guilty plea to trafficking in marijuana, I.C. § 37-2732B(a)(1)(A), pursuant
to an I.C.R. 11 conditional plea agreement. The agreement provided that the state would seek a
unified sentence of thirteen years, with a minimum period of confinement of four years. In
addition, the agreement provided that the district court would not impose a greater sentence than



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what the state recommended. However, the agreement allowed Estes to argue for a lesser
sentence. After hearing argument from the state and Estes, the district court sentenced Estes to a
unified term of thirteen years, with a minimum period of confinement of three years. Estes filed
a pro se motion for appointment of counsel and Rule 35 motion for reduction of his sentence. In
his motion, Estes argued that the district court did not properly consider Estes’s claim that he
was growing marijuana for medicinal purposes, that his record did not contain any prior drug or
alcohol charges, and that his arrest was unlawful. The district court denied Estes’s motion for
counsel and Rule 35 motion for reduction of his sentence. Estes appeals.
                                                  II.
                                             ANALYSIS
A.      Sentence Review
        Estes contends that the district court abused its discretion by imposing an excessive
sentence. An appellate review of a sentence is based on an abuse of discretion standard. State v.
Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal,
the appellant has the burden to show that it is unreasonable, and thus a clear abuse of discretion.
State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such
an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice,
103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it
appears at the time of sentencing that confinement is necessary “to accomplish the primary
objective of protecting society and to achieve any or all of the related goals of deterrence,
rehabilitation or retribution applicable to a given case.” State v. Toohill, 103 Idaho 565, 568, 650
P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed
an excessively harsh sentence, we conduct an independent review of the record, having regard
for the nature of the offense, the character of the offender, and the protection of the public
interest.   State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). When
reviewing the length of a sentence, we consider the defendant’s entire sentence. State v. Oliver,
144 Idaho 722, 726, 170 P.3d 387, 391 (2007). Upon review of the record in this case, we
cannot say that the district court abused its discretion.
B.      Appointment of Counsel
        Estes asserts that the district court erred by denying the appointment of counsel during
the proceedings on Estes’s Rule 35 motion. A criminal defendant has the right to counsel at all


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critical stages of the criminal process, including pursuit of a Rule 35 motion. Murray v. State,
121 Idaho 918, 923 n.3, 828 P.2d 1323, 1328 n.3 (Ct. App. 1992). However, appointed counsel
at this stage may be denied if the motion is frivolous or 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).
This Court exercises free review of a district court’s order denying appointment of counsel
during proceedings on a Rule 35 motion. State v. Wade, 125 Idaho 522, 525, 873 P.2d 167, 170
(Ct. App. 1994).
       Estes argues that the district court applied the wrong legal standard when it determined
that Estes’s motion was frivolous because it failed to present new information. In order to
succeed upon 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). A motion that does
not present any new information is frivolous and is not one that a reasonable person with
adequate means would bring before the district court at his or her own expense.
       In his Rule 35 motion, Estes argued that he was growing marijuana to use for medicinal
purposes only. Estes pointed out that growing marijuana for medicinal purposes was legal in
other states. Further, Estes stated that his criminal record did not contain previous drug or
alcohol charges and that the search of his home and his subsequent arrest were unlawful. Estes
asserted that the district court did not properly consider these factors during sentencing. The
district court denied Estes appointment of counsel because he presented no new evidence and his
arguments were not viable and, therefore, a reasonable person would not request counsel at his or
her own expense to file a similar motion. Marijuana laws in other states have no bearing on a
court’s decision to sentence a defendant in Idaho. In addition, Estes did not present any new
information with the Rule 35 motion regarding his criminal history beyond what the district court
previously considered at sentencing, and the circumstances of his arrest had no bearing on his
sentence.   Because Estes’s arguments regarding Idaho’s marijuana laws, his prior criminal
history, and the legality of his arrest are frivolous and are not those a reasonable person would
raise at his or her own expense, the district court did not err in denying Estes’s motion for
appointment of counsel.




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                                               III.
                                        CONCLUSION
       The district court did not abuse its discretion in sentencing Estes to a unified term of
thirteen years, with a minimum period of confinement of three years, for trafficking in
marijuana. Estes’s Rule 35 motion was not one that a reasonable person of adequate means
would bring at his or her own expense. Estes has not established that the district court abused its
discretion in denying his Rule 35 motion for reduction of his sentence. Therefore, Estes’s
judgment of conviction and sentence for trafficking in marijuana and the district court’s order
denying Estes’s motion for appointment of counsel and Estes’s Rule 35 motion are affirmed.
       Judge GUTIERREZ and Judge GRATTON, CONCUR.




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