               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                 Docket Nos. 44778 & 44779

STATE OF IDAHO,                               )
                                              )   Filed: June 29, 2018
       Plaintiff-Respondent,                  )
                                              )   Karel A. Lehrman, Clerk
v.                                            )
                                              )   THIS IS AN UNPUBLISHED
KARLY IRENE ELWOOD,                           )   OPINION AND SHALL NOT
                                              )   BE CITED AS AUTHORITY
       Defendant-Appellant.                   )
                                              )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Bradly S. Ford, District Judge.

       Judgments of conviction for two counts of possession of a controlled substance
       and one misdemeanor count of possession of drug paraphernalia, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Sally J. Cooley, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

LORELLO, Judge
       In two criminal cases that were consolidated on appeal, Karly Irene Elwood appeals from
her judgments of conviction for two counts of possession of a controlled substance and one
misdemeanor count of possession of drug paraphernalia. Elwood argues that the district court
erred in denying her motion to enlarge the time to file a motion to suppress because she
demonstrated good cause and excusable neglect. Elwood also contends that the district court
erred when it alternatively denied her motion to suppress because the police illegally detained
her without reasonable, articulable suspicion of criminal activity. For the reasons set forth
below, we affirm.




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                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Officers responded to a report of suspicious activity at a vacant home that was being
supervised by an out-of-state business and was for sale or lease by a separate company.
Although the property appeared to be abandoned or vacant, there were drink cups and food items
strewn about inside. Due to recent problems with crimes in vacant homes in the area, such as
vagrancy, vandalism and drug use inside the homes, the officers checked the residence to make
sure the doors were secure. While sitting in his patrol car completing his notes in relation to the
suspicious activity call, one officer saw a vehicle park in front of the vacant home that he
believed matched the description given by the person who called in the report; the driver
committed a traffic infraction in the process.       After the driver got out of the vehicle and
approached the vacant home, the officer made contact with him. The driver told the officer he
had been at the home earlier helping a friend move and told the officer that he could call
someone who could confirm his explanation. The officer asked the driver to return to the vehicle
and, after the driver did so, the officer made contact with the vehicle’s three other occupants,
including Elwood. At that time, the officer noted that Elwood appeared to be under the influence
of narcotics.
       The officer collected identification from all of the occupants and moved his patrol car
behind the vehicle and activated his overhead lights. When the officer was in his patrol car
running the occupants’ information through dispatch, he noticed furtive movements inside the
vehicle that he believed were typical of those exhibited by individuals hiding contraband. While
awaiting a response from dispatch, the officer deployed a drug canine around the vehicle and the
canine alerted. During a subsequent interview, Elwood admitted she had two blue pills, which
the officer identified as oxycodone. Following Elwood’s admission regarding the pills, the
vehicle was searched, including a purse belonging to Elwood. The purse contained a syringe
with a brown liquid in it, foil with residue, and drug paraphernalia. The State charged Elwood
with two counts of possession of a controlled substance, and Elwood received a citation for
misdemeanor possession of drug paraphernalia.
       Elwood filed a motion to suppress, asserting she was unlawfully detained. Because
Elwood’s motion to suppress was untimely under I.C.R. 12(d), she also filed a motion to enlarge


                                                2
time. The State objected to the motion on timeliness grounds and on the merits. At the hearing
on Elwood’s motions, the district court took the issue of timeliness under advisement, noted it
may not grant Elwood’s motion to enlarge time, and then heard testimony regarding the merits of
the motion to suppress. The district court subsequently entered a written decision denying
Elwood’s motion to enlarge time, finding that neither good cause nor excusable neglect
supported Elwood’s failure to timely file her motion to suppress. The district court alternatively
held that, even if timely filed, the motion would have been denied.
       Following the denial of her motions to enlarge time and suppress, Elwood entered a
conditional guilty plea to possession of drug paraphernalia and two counts of possession of a
controlled substance, reserving her right to appeal the district court’s denial of her motions. The
district court withheld judgment and placed Elwood on probation for the two counts of
possession of a controlled substance and gave Elwood credit for time served for the possession
of drug paraphernalia. Elwood appeals.
                                                  II.
                                            ANALYSIS
       Elwood asserts that the district court erred in denying her motion to enlarge the time to
file a motion to suppress because she demonstrated good cause and excusable neglect.
Specifically, Elwood contends the motion to enlarge time should have been granted because her
attorney’s failure to timely file was excusable neglect in light of the attorney’s excessive
caseload, and that the interests of judicial economy constitute good cause. The State argues that
it was within the district court’s discretion to deny Elwood’s motion to enlarge time and that the
district court properly denied Elwood’s motion to suppress because the officer had reasonable,
articulable suspicion to detain Elwood and the other occupants in the vehicle. We affirm the
district court’s denial of Elwood’s motion to enlarge time. As such, we need not address whether
the district court erred in denying Elwood’s motion to suppress.
       Idaho Criminal Rule 12 governs the time limits for filing pretrial motions, including
motions to suppress evidence. Motions to suppress evidence must be filed within twenty-eight
days of the entry of a plea of not guilty unless the court, in its discretion, shortens or enlarges the
time. I.C.R. 12(d). The trial court may relieve a party of failure to comply with this deadline
for good cause shown or for excusable neglect.          I.C.R. 12(d). The burden of showing good


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cause or excusable neglect is on the party who has missed the prescribed deadline. State v.
Gleason, 130 Idaho 586, 591, 944 P.2d 721, 726 (Ct. App. 1997). The power to extend or
shorten the required time under I.C.R. 12(d) is discretionary. State v. Alanis, 109 Idaho 884,
888, 712 P.2d 585, 589 (1985). When a trial court’s discretionary decision is reviewed on
appeal, the appellate court conducts a multi-tiered inquiry to determine whether the lower court
correctly perceived the issue as one of discretion, acted within the boundaries of such discretion
and consistently with any legal standards applicable to the specific choices before it, and reached
its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333
(1989).
          Elwood does not dispute that her motion to suppress was untimely. Under I.C.R. 12(d),
Elwood’s motion to suppress was due May 27, 2016; however, Elwood did not file her motion to
suppress until June 23, 2016. Because the motion was untimely, Elwood also filed a motion to
enlarge time with a supporting affidavit from her attorney. In the affidavit, Elwood’s attorney
stated, in relevant part, that: (1) her caseload was “extremely high,” with approximately 140
active cases; (2) she did not calendar the pretrial motion deadline in Elwood’s case; and (3) her
last contact with Elwood was April 12, 2016, and “combined with” her failure to calendar the
deadline, “the suppression deadlines in this case were inadvertently missed.” At the hearing on
the motion to enlarge time and motion to suppress, Elwood’s counsel reiterated the contents of
her affidavit as grounds to enlarge time and added that she still had not had contact with Elwood
on June 23, which was the date counsel filed the motions to enlarge time and suppress. Counsel
explained, as she did in her affidavit, that “with the lack of contact” and the failure to calendar,
she “missed the deadline.”
          The district court denied Elwood’s motion to enlarge time. In reaching this conclusion,
the district court recognized the issue was discretionary; found the delay in filing was substantial;
and that, although sympathetic to counsel’s caseload, her caseload did not constitute good cause
or excusable neglect. The district court observed that, if an attorney’s caseload were sufficient to
excuse an untimely motion, “good cause and excusable neglect would exist for untimely motions
in virtually all criminal cases being handled by the public defender’s office in th[e] county.” The
district was “also not persuaded that counsel’s lack of contact with” Elwood excused counsel’s
failure to file a timely motion because “counsel conceded that essentially no effort was made to


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contact” Elwood prior to the pretrial motion deadline.        Moreover, the district court noted,
Elwood’s counsel had sufficient information to file the motion without Elwood’s input. The
district court therefore concluded that, because Elwood did not demonstrate good cause or
excusable neglect for failing to comply with the I.C.R. 12(d) deadline, her motion to suppress
must be denied as untimely. 1
       Elwood asserts the district court abused its discretion in denying her motion to enlarge
time because it did not act consistently with applicable legal standards when it failed to
recognize “the neglect displayed was excusable.” Elwood also asserts the district court abused
its discretion because “judicial economy would have been best served by the district court
hearing the motion to suppress.” In support of her judicial economy argument, Elwood explains
that, if her appeal is unsuccessful, she “can pursue an otherwise unnecessary post-conviction
action” where she can “easily” establish deficient performance. Appellate court review is limited
to the evidence, theories, and arguments that were presented to the trial court. State v. Johnson,
148 Idaho 664, 670, 227 P.3d 918, 924 (2010). Unpreserved issues generally may not be
considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126
(1992). Because Elwood did not advance her judicial economy argument to the district court, we
will not consider it on appeal other than to note that Elwood cites no authority to support the
proposition that a trial court abuses its discretion when it enforces a deadline even though a
post-conviction action may result. To the contrary, allowing untimely motions to be heard even
if they appear meritorious eviscerates the purpose of the rule. State v. Dice, 126 Idaho 595, 597,
887 P.2d 1102, 1104 (Ct. App. 1994).
       Turning to Elwood’s excusable neglect claim, we find no abuse of discretion. On appeal,
Elwood focuses on her attorney’s caseload as the basis for the attorney’s failure to timely file and
contends that, by not granting the motion to enlarge time, the district court “effectively
punished” Elwood “for the struggling public defense system.”           Although defense counsel
referenced her high caseload in both her affidavit and at the hearing on the motion, she stated
that she missed the deadline because she failed to calendar it. The failure to calendar, coupled


1
       Although the district court alternatively addressed the merits of Elwood’s motion to
suppress, the district court stated it did so in the event an appellate court subsequently
determined the district court erred on the timeliness issue.

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with the lack of contact with Elwood, resulted in an untimely motion to suppress. The district
court considered all of the reasons offered to justify the untimely motion, including defense
counsel’s caseload, and concluded they were insufficient for purposes of finding good cause or
excusable neglect in this case. There is no applicable legal standard which required the district
court to reach a different conclusion. See Dice, 126 Idaho at 597, 887 P.2d at 1104 (holding that,
if no good cause or excusable neglect is established to the satisfaction of the district court, an
untimely motion to suppress should not be heard). Accordingly, we hold that the district court
did not abuse its discretion in denying Elwood’s motion to enlarge time. 2
                                                III.
                                         CONCLUSION
       The district court did not abuse its discretion in finding no excusable neglect or good
cause to enlarge the time to file a motion to suppress. Elwood’s judgments of conviction for two
counts of possession of a controlled substance and one misdemeanor count of possession of drug
paraphernalia are affirmed.
       Chief Judge GRATTON and Judge HUSKEY, CONCUR.




2
         Elwood also contends that the motion to enlarge time was either implicitly granted or
became moot once the district court proceeded with the hearing on the motion to suppress. We
reject both arguments. Before hearing evidence on the merits of the suppression motion, the
district court expressly stated it was taking the motion to enlarge time under advisement and
notified the parties that it “still may not grant the motion.” Elwood’s claim that the district court
implicitly granted a motion it expressly stated it was taking under advisement and “may not
grant” is without merit. Elwood’s mootness argument also lacks merit because resolution of the
timeliness issue is a justiciable controversy that affects the outcome of this appeal. See State v.
Long, 153 Idaho 168, 170, 280 P.3d 195, 197 (Ct. App. 2012) (defining a moot case as one that
presents no justiciable controversy).

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