               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 45255

STATE OF IDAHO,                                )   2018 Unpublished Opinion No. 361
                                               )
       Plaintiff-Respondent,                   )   Filed: February 20, 2018
                                               )
v.                                             )   Karel A. Lehrman, Clerk
                                               )
BRANDON E. SAVAGE,                             )   THIS IS AN UNPUBLISHED
                                               )   OPINION AND SHALL NOT
       Defendant-Appellant.                    )   BE CITED AS AUTHORITY
                                               )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Davis F. Vandervelde, District Judge.

       Order denying Idaho Criminal Rule 35 motion for correction of illegal
       sentence, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Reed P. Anderson, Deputy
       Appellate Public Defender, Boise, for appellant.

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

                    Before GRATTON, Chief Judge; GUTIERREZ, Judge;
                                 and LORELLO, Judge
                  ________________________________________________

PER CURIAM
       Brandon E. Savage pled guilty to possession of sexually exploitative material, Idaho
Code § 18-1507A. The district court imposed a unified sentence of ten years, with a minimum
period of confinement of three years, suspended the sentence and placed Savage on probation.
Following a post-conviction proceeding, Savage was resentenced to a unified sentence of ten
years, with a minimum period of confinement of three years, and placed on probation for ten
years commencing from the date of the original judgment. Savage violated probation and the
district revoked probation and ordered execution of the original sentence. Savage filed an Idaho
Criminal Rule 35 motion for reduction of sentence, which the district court denied. Savage

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subsequently filed two Rule 35 motions for correction of an illegal sentence, both of which were
denied by the district court.
       In this case, Savage filed his third Rule 35 motion for correction of an illegal sentence,
asserting that his sentence is illegal because he was not allowed to present mitigating evidence
during the sentencing phase of his case. The district court denied Savage’s motion, finding that
Savage’s sentence is not illegal. Savage appeals.
       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 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 reexamine 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 87, 218 P.3d at 1148.
       The record supports the district court’s finding that Savage’s sentence is not illegal.
Therefore, the district court properly denied Savage’s motion. Accordingly, we conclude no
abuse of discretion has been shown and the district court’s order denying Savage’s Rule 35
motion is affirmed.




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