               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 37145

STATE OF IDAHO,                                  )     2010 Unpublished Opinion No. 646
                                                 )
       Plaintiff-Respondent,                     )     Filed: September 16, 2010
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
DENNIS ABBOTT,                                   )     THIS IS AN UNPUBLISHED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 of the district court denying motion to correct an illegal sentence and
       motion for appointment of counsel, affirmed.

       Molly J. Huskey, State Appellate Public Defender; Heather M. Carlson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

                        Before GUTIERREZ, Judge; GRATTON, Judge;
                                  and MELANSON, Judge

PER CURIAM
       Dennis Abbott appeals from the district court‟s denial of his Idaho Criminal Rule 35
motion to correct an illegal sentence and motion for appointment of counsel. We affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       In 1986, Abbott was convicted of lewd conduct with a minor under the age of sixteen and
the district court imposed an indeterminate life sentence and retained jurisdiction. Following the
period of retained jurisdiction, the district court reduced Abbott‟s sentence to an indeterminate
forty years, suspended the sentence and placed him on probation. After Abbott violated the




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terms of his probation, the district court revoked his probation and ordered execution of the
underlying sentence.
       In 2006, Abbott filed a Rule 35 motion to correct an illegal sentence arguing that the
reduction of the indeterminate life sentence to forty years was actually an increase in his
sentence and that he should be given credit for time served. The district court denied the motion
and this Court affirmed on appeal. State v. Abbott, Docket No. 33216 (Ct. App. March 8, 2007)
(unpublished).
       In October 2009, Abbott filed another Rule 35 motion to correct an illegal sentence
stating the grounds for relief as prosecutorial misconduct, disparity of sentences between
defendants, excessive sentence, a lack of material facts, and tainted evidence. Abbott also filed a
motion for appointment of counsel.       The district court denied both motions.       This appeal
followed.
                                                II.
                                           ANALYSIS
       Abbott contends that his sentence is illegal because of prosecutorial misconduct, arguing
that the prosecutor mislead the court on two occasions “by prevaricating evidence in which she
claimed defendant admitted, then denied the allegations, in order for the prosecutor to
manipulate the court to her bidding in which she desired at the time.” Next, he contends that his
sentence is illegal because of the disparity between his sentence and the sentence of his co-
defendant, arguing that he received “a forty year sentence” and must register as a sex offender,
yet his co-defendant only received “a sentence of five-years probation,” of which she served only
a small portion, her record was sealed, and she does not have to register as a sex offender.
Abbott also claims that there were no material facts, stating, “[t]here were never any material
facts presented to the court, only a coerced plea by the laziness of the Defendant‟s counsel, and
the trickery of the prosecutor.” In addition, he asserts that the evidence was tainted, arguing that
there was never any evidence presented to him or the court in this case indicating that he
committed the crime with the purpose of self-gratification, as required under Idaho Code § 18-
1508. Finally, Abbott argues that his sentence is excessive.
       On appeal, Abbott acknowledges that “his Rule 35 illegal sentence claims are not actually
illegal sentence claims and are not apparent from the record alone.”               In addition, he
acknowledges that a Rule 35 motion requesting leniency must be filed within 120 days of being


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sentenced and within 14 days of revocation of probation. Nonetheless, Abbott contends that the
district court erred in denying his Rule 35 motion for correction of an illegal sentence.
       In State v. Clements, 148 Idaho 82, 87, 218 P.3d 1143, 1148 (2009), the Idaho Supreme
Court held that “the interpretation of „illegal sentence‟ under Rule 35 is limited to sentences that
are illegal from the face of the record, i.e., those sentences that do not involve significant
questions of fact nor an evidentiary hearing to determine their illegality.” An illegal sentence
under 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). Abbott‟s claims, as he
correctly acknowledges, are not within the scope of a motion for correction of an illegal sentence
pursuant to Rule 35. In addition, to the extent Abbott‟s Rule 35 motion is based on a plea of
leniency it is untimely.
                                                III.
                                         CONCLUSION
       Abbott‟s claims are not cognizable under a Rule 35 motion to correct an illegal sentence.
Abbott‟s sentence does not exceed the statutory maximum, and because his sentence is not
otherwise contrary to applicable law, he has failed to show error by the district court in denying
his Rule 35 motion. Therefore, the district court‟s order denying Abbott‟s Rule 35 motion to
correct an illegal sentence and motion for appointment of counsel is affirmed.




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