                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 45176

STATE OF IDAHO,                                   )    2018 Unpublished Opinion No. 471
                                                  )
          Plaintiff-Respondent,                   )    Filed: May 24, 2018
                                                  )
v.                                                )    Karel A. Lehrman, Clerk
                                                  )
RICHARD KELLY DICKSON,                            )    THIS IS AN UNPUBLISHED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, Ada
          County. Hon. Samuel A. Hoagland, District Judge.

          Judgment of conviction and order denying Idaho Criminal Rule 35
          motion, affirmed.

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

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

GRATTON, Chief Judge
          Richard Kelly Dickson appeals from the judgment of conviction and the order denying
his Idaho Criminal Rule 35 motion. We affirm.
                                                  I.
                       FACTUAL AND PROCEDURAL BACKGROUND
          Dickson had sexual contact with his seventeen-year-old niece.          Law enforcement
received a report that the conduct had occurred on several occasions. Police subsequently
interviewed the victim who told them that her sexual interactions with Dickson had occurred on
seven or eight separate occasions and that Dickson had provided her with alcoholic beverages
prior to each sexual interaction. She also informed police that she had seen marijuana plants
growing at Dickson’s residence and she had seen Dickson provide marijuana to an unknown
female.

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       In Ada County Case No. CR-01-17-4432 (“4432”), the State charged Dickson with five
counts of sexual battery of a minor, Idaho Code § 18-1508A(1)(a), and four counts of dispensing
alcohol to a minor, I.C. § 23-603. In Ada County Case No. CR-01-17-4116 (“4116”), the State
charged Dickson with trafficking in marijuana, I.C. § 37-2732B(a)(1), and possession of drug
paraphernalia, I.C. § 37-2734A. The State filed an amended information in case 4116 charging
Dickson with one count of delivery of a controlled substance, I.C. § 37-2732(a), and possession
of drug paraphernalia, I.C. § 37-2734A. The State moved to consolidate the cases. The district
court granted the motion and entered an order consolidating Dickson’s two cases.
       Pursuant to a plea agreement, Dickson pled guilty to one count of sexual battery of a
minor, one count of dispensing alcohol to a minor, and one count of delivery of a controlled
substance.   The district court entered separate judgments of conviction in each case.         In
case 4432, the court imposed a fifteen-year sentence with four years determinate for the sexual
battery of a minor charge and a concurrent 180-day sentence for dispensing alcohol to a minor.
In case 4116, the court imposed a concurrent ten-year sentence with two years determinate for
delivery of marijuana.    Dickson timely filed a Rule 35 motion for reconsideration of his
sentence. The district court denied the motion without a hearing. Dickson timely appeals.
                                               II.
                                          ANALYSIS
       Dickson asserts that the district court abused its discretion by imposing excessive
sentences and by denying his Rule 35 motions for reduced sentence. As a preliminary matter,
the State asserts that this Court lacks jurisdiction over case 4116. The State also contends that
Dickson has failed to demonstrate an abuse of discretion in sentencing or in denying Dickson’s
Rule 35 motion in case 4432.
A.     Subject Matter Jurisdiction
       The State acknowledges that Dickson’s challenge to the district court’s sentencing
decision in case 4432 is properly before this court because he timely filed a notice of appeal in
that case. However, according to the State, this Court lacks jurisdiction to consider Dickson’s
challenges to his sentence in case 4116 because Dickson did not file a notice of appeal from
either the judgment of conviction in case 4116 or from the denial of his Rule 35 motion.
       Dickson asserts the State’s argument that this Court lacks jurisdiction over his appeal in
case 4116 is incorrect. Dickson argues that if this Court is persuaded by the State’s argument, it

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would effectively render the district court’s order consolidating the cases a nullity. According to
Dickson, he should be permitted to file a single notice of appeal for both cases using either case
number because (1) Local Rule 11.2 1 does not require the order consolidating cases to specify
which case number the consolidated cases will proceed under, and (2) the district court did not
specify which case number the consolidated cases would proceed under. We disagree.
       A question of subject matter jurisdiction is fundamental and a matter of law; it cannot be
ignored when brought to our attention and should be addressed prior to considering the merits of
an appeal. State v. Huntsman, 146 Idaho 580, 583, 199 P.3d 155, 158 (Ct. App. 2008) (citations
omitted). Pursuant to Idaho Appellate Rule 21, failure to file a notice of appeal with the clerk of
the district court within the time limits prescribed by the appellate rules deprives the appellate
courts of jurisdiction over the appeal. Idaho Appellate Rule 14 provides, in part:
                Any appeal . . . may be made only by physically filing a notice of appeal
       with the clerk of the district court within 42 days from the date evidenced by the
       filing stamp of the clerk of the court on any judgment or order of the district court
       appealable as a matter of right in any civil or criminal action.
       Dickson failed to file a notice of appeal within forty-two days from either the judgment
of conviction in case 4116 or from the order denying his Rule 35 motion. Although the district
court consolidated case 4432 with case 4116 for purposes of judicial efficiency at trial, 2 the court
entered separate judgments of conviction, each bearing separate case numbers. Dickson only
filed a notice of appeal from the judgment of conviction in case 4432. That notice of appeal
states, “[Dickson] appeals against the [State] to the Idaho Supreme Court from the Judgment of


1
        Local Rule 11.2 of the District Court and Magistrate Division of the Fourth Judicial
District provides:
                Motions to consolidate pending criminal actions shall be presented to and
        ruled upon by the judge to whom the lowest numbered case or first filed case has
        been assigned among those matters sought to be consolidated. Notice shall be
        given to all parties in each action involved and a copy filed in each case involved.
        If a motion to consolidate is granted, all further action with regard to the
        consolidated cases shall be heard by the judge assigned to the lowest numbered
        case or first filed case involved.
Nothing in Local Rule 11.2 or the district court’s failure to designate one number applicable to
each case supports the position that Dickson is allowed to choose one number for both cases.
The opposite is true.
2
       The State’s motion to consolidate stated that the purpose of consolidating the cases was
to “save witness and jury time and the expense for a separate and later trial.” Thus, appealing
each separate judgment of conviction does not render the purpose of consolidation a nullity.
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Conviction entered against him in the above-entitled action . . . .” The caption of the notice of
appeal bears case number 4432. Additionally, the notice of appeal makes no mention of case
4116 in either the caption or the body.
       Moreover, the district court’s order appointing the Idaho State Appellate Public Defender
supports the conclusion that Dickson only filed a notice of appeal from the judgment of
conviction in case 4432. The caption of the order bears only case number 4432 and states,
“[Dickson] has elected to pursue a direct appeal in the above-entitled matter.” Like the notice of
appeal, the order makes no reference in either the caption or the body to case 4116. Therefore,
this Court is without jurisdiction, pursuant to I.A.R. 21, to consider the merits of Dickson’s
appeal insofar as he challenges the court’s sentencing discretion or its decision to deny his
Rule 35 motion in case 4116. Because this Court lacks jurisdiction over case 4116, we only
review the merits of Dickson’s appeal from case 4432.
B.     Sentence Review
       Dickson argues the district court abused its discretion by imposing a unified sentence of
fifteen years with four years determinate. Dickson does not argue that his sentence is illegal, but
that his sentence is excessively harsh because the trial court failed to adequately consider certain
mitigating factors, e.g., his employment history as a bartender; his struggle with
methamphetamine addiction and marijuana use; his emotional, behavioral, and cognitive
conditions like depression and anxiety; the degree of his family’s support; and his remorse.
       The State argues Dickson failed to establish that the district court abused its sentencing
discretion in case 4432. The State argues Dickson merely wishes the district court would have
given the information he presents more mitigating weight because all of the information to which
Dickson points was contained in the presentence materials that were considered by the court at
the time of sentencing. We agree.
       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

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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).
        On the record before this Court, Dickson’s unified sentence of fifteen years with four
years determinate is not excessively harsh. Dickson correctly contends leniency is appropriate
when a defendant expresses remorse for his conduct and accepts responsibility for his acts. He
also correctly contends that Idaho recognizes the following as mitigating factors at sentencing:
(1) good employment history, (2) impaired capacity to appreciate the criminality of conduct due
to the defendant’s ingestion of drugs and alcohol, and (3) mental illness. However, in light of the
nature of the offense, the character of the offender, and the protection of the public interest, none
of the mitigating information that Dickson presents on appeal, either alone or collectively,
renders Dickson’s sentence excessively harsh.
        The victim was particularly vulnerable to Dickson’s sexual abuse because she had
already suffered sexual abuse in the past, her mother is a drug addict who has been in and out of
prison, and Dickson plied her with alcohol before engaging her in the various sexual acts.
Dickson has a lengthy criminal history that spans twenty years. He has been convicted of
eighteen prior misdemeanor offenses, has been placed on probation, served jail time, and
participated in a rider.   Dickson’s term of incarceration protects the public interest.        The
psychosexual evaluator concluded that Dickson is less amenable to sex offender treatment than
most sex offenders and that he poses a moderate risk to reoffend with a future sexual offense
within five to ten years. Dickson has stated that he does not perceive himself to be a sex
offender, blames the victim, and does not believe that he is in need of sex offender treatment.
Finally, in fashioning Dickson’s sentence, the district court considered all of the mitigating
information that he now presents to this Court on appeal. The district court ultimately imposed a
sentence well within the statutorily prescribed limit.      Pursuant to I.C. § 18-1508A(4), the
maximum penalty for sexual abuse of a minor child in violation of I.C. § 18-1508A(1)(a) is life

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imprisonment, yet Dickson was sentenced to fifteen years with just four years determinate. “A
sentence fixed within the limits prescribed by the statute will ordinarily not be considered an
abuse of discretion by the trial court.” Nice, 103 Idaho at 90, 645 P.2d at 324. For all these
reasons, we conclude that Dickson’s sentence was not excessively harsh nor did the district court
abuse its discretion by imposing a fifteen-year sentence with four years determinate in case 4432.
C.     Idaho Criminal Rule 35
       Dickson argues the district court abused its discretion when it denied his Rule 35 motion
in light of new information he offered in support of the motion. He contends that new or
additional information was presented in support of his Rule 35 motion in the form of a letter to
the district court. In the letter, Dickson wrote that he was close with his family and that he
wanted to make amends with his father and grandparents who, according to Dickson, might not
be alive when he is released from prison. In light of this new information about his family, in
conjunction with the other mitigating information that was before the court at sentencing,
Dickson argues the court abused its discretion by denying his Rule 35 motion.
       A motion for reduction of sentence under I.C.R. 35 is essentially a plea for leniency,
addressed to the sound discretion of the court. State v. Knighton, 143 Idaho 318, 319, 144 P.3d
23, 24 (2006); State v. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App. 1989). In
presenting 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). In conducting our
review of the grant or denial of a Rule 35 motion, we consider the entire record and apply the
same criteria used for determining the reasonableness of the original sentence. State v. Forde,
113 Idaho 21, 22, 740 P.2d 63, 64 (Ct. App. 1987).
       The district court did not abuse its discretion by denying Dickson’s Rule 35 motion for a
reduction of his sentence. The only ostensibly new or additional information that Dickson
provided to the district court in support of his Rule 35 motion was Dickson’s assertion in the
letter that his family members were in failing health and that he wanted to make amends with
them. The district court correctly concluded that Dickson had offered “nothing in the way of
new information bearing on the reasonableness of the sentences and no argument or evidence
showing that the sentences were unreasonable as imposed in light of the purposes of sentencing.”
Furthermore, after reviewing Dickson’s Rule 35 motion and the letter in conjunction with the

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PSI and the judgments of conviction, the district court again concluded that the sentences
remained entirely appropriate and necessary to accomplish the objectives of sentencing:
punishment, rehabilitation, deterrence, and protection of society. Dickson’s sentence was not
excessively harsh when imposed, even taking into consideration the mitigating information that
Dickson contends should have led the district court to reduce his sentence. Accordingly, the
district court did not abuse its discretion by denying Dickson’s Rule 35 motion.
                                               III.
                                        CONCLUSION
       Pursuant to I.A.R. 21, this Court is without jurisdiction to consider Dickson’s appeal in
case 4116. Dickson’s sentence was not excessively harsh. The district court did not abuse its
discretion by imposing a sentence of fifteen years with four determinate in case 4432, nor did it
abuse its discretion by denying Dickson’s Rule 35 motion. Accordingly, we affirm the judgment
of conviction and the order denying the Rule 35 motion for reconsideration of the sentence.
       Judge GUTIERREZ and Judge HUSKEY CONCUR.




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