               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 42723

STATE OF IDAHO,                                )    2016 Unpublished Opinion No. 488
                                               )
       Plaintiff-Respondent,                   )    Filed: April 13, 2016
                                               )
v.                                             )    Stephen W. Kenyon, Clerk
                                               )
CECILIO PONCE ALBA,                            )    THIS IS AN UNPUBLISHED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. Steven J. Hippler, District Judge.

       Order denying motion to enlarge time to file motion to suppress, affirmed;
       judgment of conviction and sentence, affirmed.

       Nevin, Benjamin, McKay & Bartlett LLP; Deborah Whipple, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GRATTON, Judge
       Cecilio Ponce Alba appeals from the district court’s order denying Alba’s motion to
enlarge time to file a motion to suppress. In the alternative, Alba claims the district court
imposed an excessive sentence. We affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Alba was indicted by a grand jury on one count of conspiracy to traffic in
methamphetamine, Idaho Code §§ 37-2732B(a)(4)(C), 37-2732B(b), 18-1701, and one count of
trafficking in methamphetamine, I.C. § 37-2732B(a)(4). After Alba’s indictment, the district
court issued an order governing further proceedings and notice of the trial setting. Pursuant to
Idaho Criminal Rule 12, the order established the deadline for pretrial motions for the defendant




                                               1
to be fourteen days after the compliance date of discovery, May 30, 2014.             The pretrial
conference was scheduled for June 24, 2014.1
       On June 16, 2014, after the deadline for pretrial motions had already passed, new counsel
was substituted into the case. At the pretrial conference on June 24, 2014, new counsel filed a
motion to enlarge time to file a pretrial motion along with a motion to suppress. At that time, it
was three weeks after the deadline to file pretrial motions. At the hearing for the motion to
enlarge time, Alba’s counsel argued that he had not learned of the grounds for the motion to
suppress until he was substituted as counsel, after the deadline had passed. At the hearing, the
district court determined neither good cause nor excusable neglect for the late filing had been
shown to allow the motion to enlarge time to file a motion to suppress and, in turn, denied the
motion.   Alba then entered a guilty plea to the trafficking in methamphetamine charge,
preserving his right to appeal the district court’s decision. The district court imposed a unified
sentence of thirty years with fifteen years determinate. Alba timely appealed.
                                                II.
                                            ANALYSIS
       On appeal, Alba challenges the district court’s denial of the motion to enlarge the time to
file a motion to suppress. He reasons that because the motion was filed before trial and just after
new counsel was substituted for prior counsel, the district court should have granted the motion.
Alba also contends that his sentence is excessive.
       The court’s decision to allow a late motion to suppress is a matter of discretion. 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 before it, and
reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d
1331, 1333 (1989). I.C.R. 12(e) provides:
               Motions pursuant to Rule 12(b) must be filed within twenty-eight (28)
       days after the entry of a plea of not guilty or seven (7) days before trial whichever
       is earlier. In felony cases, such motions must be brought on for hearing within
       fourteen (14) days after filing or forty-eight (48) hours before trial whichever is

1
       The order also established the trial date to be July 14, 2014, which the court later
extended to July 16, 2014.
                                                2
       earlier. The court in its discretion may shorten or enlarge the time provided
       herein, and for good cause shown, or for excusable neglect, may relieve a party of
       failure to comply with this rule.
(Emphasis added.)
       The district court determined neither good cause nor excusable neglect had been shown
for filing the motion after the deadline. Alba points to State v. Lenz, 103 Idaho 632, 633, 651
P.2d 566, 567 (Ct. App. 1982) for the proposition that a substitution of counsel after the deadline
has passed can be considered in the court’s determination of whether to allow filing of an
untimely motion. Pursuant to Lenz, a trial court may consider a recent substitution of counsel in
determining whether good cause or excusable neglect exist, but it is by no means determinative.
Id. Here, aware of the substitution of counsel after the deadline had passed, the court still
determined that no good cause or excusable neglect had been shown.2 At the hearing, the court
explained the following:
               I have been explicitly clear to all counsel involved in this case and which
       all defendants have been at in this case . . . that this trial was, if you will, set in
       stone, and barring some extraordinary circumstance[,] it was going to continue
       down that road.
The court continued to explain:
                [At the] June 10th status conference[,] at which one of the other counsel
       tried to withdraw from this case and I did not allow him to completely withdraw, I
       made him, as a condition of withdrawing, accept a public defender conflict
       appointment on the very basis that I was not going to allow new counsel to come
       into this case in order to or with the effect of putting in jeopardy the trial date in
       this case.3
Thus, even before the court allowed counsel to withdraw, the court made it clear that as a
condition of withdrawing and allowing substitution of counsel, the fact that there would be new
counsel would not be a sufficient reason to change the trial date in this case. Furthermore,


2
         At the hearing for the motion to enlarge time, counsel asserted the following facts for the
trial court to consider in its determination: (1) he had entered the case on June 16, 2014, as a
result of a conflict of interest which had arisen with prior counsel; (2) the indictment includes
eleven co-defendants and carries a potential life sentence with a mandatory minimum of ten
years; (3) discovery to date was in excess of 1000 pages with dozens of audio and video
recordings; (4) current counsel had identified potential I.C.R. 12(b) issues; and (5) counsel was
still receiving discovery disclosures from the State.
3
       Alba then filed a second stipulation of substitution of counsel on June 16, 2014.


                                                 3
counsel acknowledged that the information upon which the suppression motion would be based
was “information that the defendant himself has had since day one.” The deadline for the
pretrial motion was May 30, 2014. New counsel came in on June 16, 2014, more than two
weeks after the deadline had already passed in the case. While new counsel may have found
reason to file the motion where prior counsel did not, the substitution of counsel did not in and of
itself create good cause or excusable neglect that would require the court to grant the motion.
Aside from the fact of the post-deadline substitution of counsel, Alba has shown no other facts
that would support a claim of excusable neglect or good cause because at all times prior to the
deadline, Alba was represented by counsel. Thus, the district court did not err in denying the
motion to enlarge time.4
       In the alternative, Alba seeks a reduction in sentence, asserting that the district court
abused its discretion by imposing an excessive sentence.          Alba asserts mitigating factors
including his unstable upbringing, cooperation with law enforcement upon arrest, and his LSI-R
score. Both our appellate standard of review and the factors to be considered when evaluating
the reasonableness of a sentence are well established. State v. Burdett, 134 Idaho 271, 1 P.3d
299 (Ct. App. 2000); State v. Sanchez, 115 Idaho 776, 769 P.2d 1148 (Ct. App. 1989); State v.
Reinke, 103 Idaho 771, 653 P.2d 1183 (Ct. App. 1982); State v. Toohill, 103 Idaho 565, 650 P.2d
707 (Ct. App. 1982). Applying these standards and having reviewed the record in this case, we
cannot say that the district court abused its discretion by imposing Alba’s sentence.
                                                III.
                                         CONCLUSION
       The district court did not err in denying Alba’s motion to enlarge time to allow Alba to
file the motion to suppress. Furthermore, the district court did not abuse its discretion by
imposing Alba’s sentence. Alba’s judgment of conviction and sentence are affirmed.
       Judge GUTIERREZ and Judge HUSKEY CONCUR.




4
        Alba also alleges that the district court assumed prior counsel was acting in his best
interest, when prior counsel was not. However, Alba provides no support from the record for
this assertion. In fact, the district court inquired as to the alleged conflict and after no support
was given, still denied the motion.
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