               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 43364

STATE OF IDAHO,                                )    2016 Unpublished Opinion No. 510
                                               )
       Plaintiff-Respondent,                   )    Filed: April 29, 2016
                                               )
v.                                             )    Stephen W. Kenyon, Clerk
                                               )
JOHNNY RAY ANDOE,                              )    THIS IS AN UNPUBLISHED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,
       Jerome County. Hon. Robert J. Elgee, District Judge.

       Order denying Idaho Criminal Rule 35(a) motion to correct an illegal sentence,
       affirmed.

       Johnny Ray Andoe, Boise, pro se appellant.

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

GRATTON, Judge
     Johnny Ray Andoe appeals from the district court’s order denying his Idaho Criminal
Rule 35 motion to correct an illegal sentence. We affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
     Andoe entered Alford1 pleas to second degree kidnapping, Idaho Code §§ 18-4501(1), 18-
4503, and felony domestic battery, I.C. §§ 18-918, 18-903(a). In exchange for his guilty pleas,
the State dismissed additional charges and recommended retained jurisdiction and a unified
sentence of twenty years with ten years determinate. The plea agreement stated, “Should the
Court exceed the suspended sentence . . . or should the Court impose a sentence other than
probation or retained jurisdiction, the Defendant shall be entitled to withdraw his plea.” The

1
        See North Carolina v. Alford, 400 U.S. 25 (1970).
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district court sentenced Andoe to a unified term of twenty years with ten years determinate for
second degree kidnapping and ten years determinate for felony domestic battery.                 The
determinate kidnapping and battery sentences were to run concurrently. The court suspended the
sentences and retained jurisdiction. Following the period of retained jurisdiction, the court
relinquished jurisdiction. The court stated:
       Because of the background and character of the defendant, including but not
       limited to his criminal history, and based upon the PSI and PSI Addendum, it
       appears that probation is not a viable option at this point in time, and jurisdiction
       is relinquished. The defendant by his behavior in the rider program and
       specifically the sex offender assessment group indicates that he is a risk to himself
       and his ex-wife the victim in the instant charges. It is apparent that the defendant
       is in need of mental health treatment in a structured environment and that such
       treatment is available in the correctional setting. It is apparent that the defendant
       is unable to comply with the requirements of his programming to address his
       criminal thinking and behavior as well as his risk to the community based on the
       psychosexual evaluation prepared for disposition as well as his inability to
       meaningfully participate in the sex offender assessment group. The defendant has
       failed to demonstrate to this court that he would be compliant with the
       requirements of supervised probation and that his behavior is such that he remains
       a significant risk to society and his ex-wife based on his history. The defendant’s
       participation in the rider program has not served the purpose of rehabilitation.
      Over the next several years, Andoe filed numerous motions and petitions, including two
Rule 35 motions to correct an illegal sentence. The district court denied both Rule 35 motions,
holding in both instances that Andoe’s sentences were legal on the face of the record. This Court
affirmed the district court on both motions. See State v. Andoe, Docket No. 41769 (Ct. App.
Oct. 2, 2014) (unpublished); State v. Andoe, Docket No. 39023 (Ct. App. Apr. 5, 2012)
(unpublished).
      Andoe filed another Rule 35 motion to correct an illegal sentence, which is the subject of
this appeal and which the district court denied. Andoe timely appeals the denial of his motion.
                                                II.
                                           ANALYSIS
       Andoe asserts that his conviction and sentences are illegal and should be vacated.
Pursuant to Rule 35, the district court may correct an illegal sentence at any time. In State v.
Clements, 148 Idaho 82, 87, 218 P.3d 1143, 1148 (2009), the Idaho Supreme Court held that the
term “illegal sentence” under Rule 35 is narrowly interpreted as a sentence that is illegal from the
face of the record, i.e., does not involve significant questions of fact or require an evidentiary


                                                 2
hearing. Rule 35 is a “narrow rule,” and because an illegal sentence may be corrected at any
time, the authority conferred by Rule 35 should be limited to uphold the finality of judgments.
State v. Farwell, 144 Idaho 732, 735, 170 P.3d 397, 400 (2007). Rule 35 is not a vehicle
designed to re-examine the facts underlying the case to determine whether a sentence is illegal;
rather, the rule only applies to a narrow category of cases in which the sentence imposes a
penalty that is simply not authorized by law or where new evidence tends to show that the
original sentence was excessive. Clements, 148 Idaho at 86, 218 P.3d at 1147. Whether a
sentence is illegal is a question of law that is freely reviewed by this Court on appeal. Id. at 84,
218 P.2d at 1145.
       Andoe asserts his conviction and sentences are illegal because the district court
relinquished jurisdiction without allowing him to appear at a hearing or rebut information in the
Addendum to the Presentence Investigation Report (APSI), the court’s decision to relinquish
jurisdiction violated his plea agreement, and the court relinquished jurisdiction based solely on
its belief that he suffered from a mental defect.
       Andoe’s arguments do not actually contest the legality of his sentences. Rather, they
challenge the district court’s decision to relinquish jurisdiction and the validity of his plea
agreement. Thus, Andoe’s arguments are a collateral attack on the district court’s decision to
relinquish jurisdiction and beyond the scope of a Rule 35 motion. Moreover, Andoe’s sentences
are legal on the face of the record. Reaching the merits of Andoe’s arguments would require this
Court to look beyond the face of the record and conduct significant fact finding to determine the
circumstances surrounding the district court’s decision to relinquish jurisdiction. We will not do
so in response to a Rule 35 motion to correct an illegal sentence.2 Andoe’s sentences are well



2
        Even if we could here consider Andoe’s arguments, they fail on their merits. First, the
Idaho Supreme Court has held defendants are not entitled to a hearing or an opportunity to rebut
information in an APSI before the district court relinquishes jurisdiction. State v. Coassolo, 136
Idaho 138, 141-143, 30 P.3d 293, 296-298 (2001); State v. Goodlett, 139 Idaho 262, 263-265, 77
P.3d 487, 488-490 (Ct. App. 2003). Second, the district court’s decision to relinquish
jurisdiction did not violate Andoe’s plea agreement. The court complied with the plea agreement
by sentencing Andoe to a unified sentence of twenty years with ten years determinate (in which
the kidnapping and battery sentences were to run concurrently) and retaining jurisdiction.
Although the plea agreement prevented the court from refusing to retain jurisdiction at
sentencing, it did not prevent the court from relinquishing jurisdiction after the period of retained
jurisdiction. Finally, the court’s comments when it relinquished jurisdiction show the court
                                                    3
within the statutory limits for his crimes and are not otherwise contrary to applicable law.
Accordingly, Andoe’s sentences are not illegal and the district court correctly denied Andoe’s
Rule 35 motion.
                                             III.
                                      CONCLUSION
       Andoe’s arguments are beyond the scope of a Rule 35 motion and Andoe’s sentences are
legal on the face of the record. The district court’s order denying Andoe’s Rule 35 motion is
affirmed.
       Chief Judge MELANSON and Judge GUTIERREZ CONCUR.




properly considered the information in the APSI and determined Andoe had not been
rehabilitated and posed a risk to society and therefore, probation was not appropriate.
                                              4
