               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                   Docket Nos. 44602/44603

STATE OF IDAHO,                                )    2017 Unpublished Opinion No. 659
                                               )
       Plaintiff-Respondent,                   )    Filed: December 8, 2017
                                               )
v.                                             )    Karel A. Lehrman, Clerk
                                               )
TIMOTHY DEAN LIVINGSTON,                       )    THIS IS AN UNPUBLISHED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, Twin
       Falls County. Hon. G. Richard Bevan, District Judge.

       Order denying successive I.C.R. 35 motions for reduction of sentence, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Kimberly A. Coster,
       Deputy Appellate Public Defender, Boise, for appellant.

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

GRATTON, Chief Judge
       Timothy Dean Livingston appeals from the district court’s order denying his Idaho
Criminal Rule 35(b) motions for reduction of sentence. We hold that the district court did not
have jurisdiction to consider the successive Rule 35(b) motions.
                                               I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       In 2012, Livingston was convicted of misappropriation of personal identifying
information. The district court imposed a unified sentence of five years, with three years
determinate. However, that sentence was suspended and Livingston was placed on probation.
Livingston was later found in violation of probation and the original sentence was re-imposed,
but that sentence was also suspended and Livingston was again placed on probation in 2015.
Also in 2015, Livingston was convicted of possession of a controlled substance. The district


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court imposed a unified sentence of five years, with one year determinate, to run consecutive to
the 2012 sentence for identity theft. That sentence was also suspended and Livingston was again
placed on probation with the added condition that Livingston complete drug court.
       In 2016, probation violation proceedings were initiated in both cases. At the disposition
hearing, Livingston admitted to violating the terms of probation and asked the district court to
continue his probation in both cases; or, alternatively, if the court were to revoke probation, to
consider restructuring the original sentences and to consider confinement at the local jail with
work release. Both probations were ultimately revoked and the original sentences imposed.
However, the sentence for the 2015 conviction was modified, pursuant to I.C.R. 35, to a unified
sentence of two years, with one year determinate, again to run consecutive to the 2012
conviction. Thereafter, Livingston filed an I.C.R. 35(b) motion in each case requesting that the
court reconsider its decision to impose sentence and to reduce the imposed sentence. At a
hearing, the district court heard testimony from two witnesses and Livingston. Subsequently, the
district court issued an order denying Livingston’s Rule 35(b) motions. Livingston timely
appeals.
                                                 II.
                                           ANALYSIS
       As an initial matter, the State argues that Livingston filed successive motions for
reduction of his sentences and that pursuant to Rule 35(b), the district court lacked jurisdiction to
consider Livingston’s successive motions. Livingston asserts that his initial request for leniency
at the disposition hearing was not a motion under Rule 35(b) and that the district court did have
jurisdiction to consider the subsequent motion. In its order denying Livingston’s motions, the
district court noted that Livingston requested a reduction of the sentences at the disposition
hearing, which was granted in part. The district court declined to decide the significance of this,
however, because “the state did not object to this motion on that basis.” Whether a court lacks
jurisdiction is a question of law that may be raised at any time, and over which appellate courts
exercise free review. State v. Jones, 140 Idaho 755, 757, 101 P.3d 699, 701 (2004).
       By its terms, Rule 35(b) allows only one motion by the defendant for leniency and
reduction of sentence. 1    Livingston first argues that what the State asserts was his initial



1
       Idaho Criminal Rule 35(b) provides:
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Rule 35(b) motion was actually “a presentation concerning the options available to the court”
and an argument for leniency as an appropriate disposition.2 Livingston asserts that the initial
request could not be a Rule 35(b) motion because, by the language of the rule, the motion must
be made after probation has been revoked. Livingston points to State v. Hanington, 148 Idaho
26, 218 P.3d 5 (Ct. App. 2009) in which this Court held:
       [W]hen we review a sentence that is ordered into execution following a period of
       probation, we will examine the entire record encompassing events before and
       after the original judgment. We base our review upon the facts existing when the
       sentence was imposed as well as events occurring between the original sentencing
       and the revocation of probation.
Hanington, 148 Idaho at 28, 218 P.3d at 8. Based on this language, Livingston argues that after
revoking probation, a court “determines a new sentence.” Therefore, a recommendation to
reduce the prior sentence is not a Rule 35(b) motion. Livingston reads Hanington and the scope
of review too broadly. We did not hold that once probation has been revoked a defendant is
entitled to a new sentence and thus the ability to appeal the new sentence. Rather, this particular
scope of review applies to the manner in which the original sentence is reviewed, not the
imposition of a new sentence. “After a probation violation has been established, the court may
order that the suspended sentence be executed or, in the alternative, the court is authorized under
Idaho Criminal Rule 35 to reduce the sentence.” Hanington, 148 Idaho at 27, 218 P.3d at 7.
Because the only mechanism for reducing his sentences was Rule 35, Livingston’s oral request
for a reduction of sentence at the disposition hearing was a Rule 35(b) motion.




               Sentences Imposed in an Illegal Manner or Reduction of Sentence. Within
       120 days of the entry of the judgment imposing sentence or order releasing
       retained jurisdiction, a motion may be filed to correct or reduce a sentence and the
       court may correct or reduce the sentence. The court may also reduce a sentence
       on revocation of probation or on motion made within 14 days after the filing of
       the order revoking probation. Motions are considered and determined by the
       court without additional testimony and without oral argument, unless otherwise
       ordered. A defendant may only file one motion seeking a reduction of sentence.
2
        At the disposition hearing, Livingston’s counsel stated: “If [revocation] were to happen,
we would ask Your Honor to consider restructuring the sentences in those cases so that perhaps
on this type of probation violation he would be sent away for four years, which I think would be
perhaps a little too long under these circumstances.”


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       Next, Livingston argues he had a constitutional right to be heard at the disposition
hearing and that right cannot be restricted by Rule 35. Livingston asserts that the issues before
the district court were “whether to continue or revoke probation” and “the appropriate sentence
to execute” and he “had a due process right to be heard on all of these matters, including the
reduction of his original sentences, and Rule 35’s limitation, therefore, cannot be applied to
restrict that right.” This argument is based on the misapprehension discussed above that the
request made at the disposition hearing was not a Rule 35 motion. Because Livingston’s request
for leniency was made pursuant to Rule 35(b), Livingston has failed to show any due process
right was violated. He was heard on the matter at the disposition hearing. It is his subsequently
filed Rule 35 motion that is prohibited by the rule.
       Livingston argues that State v. Hurst, 151 Idaho 430, 258 P.3d 950 (Ct. App. 2011), does
not control in this case, has been called into question by subsequent case law, or, alternatively,
should be overruled. At a retained jurisdiction review hearing in Hurst, the defendant requested
a trial court to consider “exercising [its] abilities under Rule 35” and “dramatically cutting down
on [the] fixed time.” Id. at 438, 258 P.3d at 958. The defendant’s request was granted. The
defendant later filed a Rule 35 motion to reduce the sentence which the district court rejected as
successive.   This Court affirmed.      We held that the defendant’s request at the retained
jurisdiction review hearing constituted an oral Rule 35(b) motion that precluded the defendant
from later filing a successive motion. Hurst, 151 Idaho at 438, 258 P.3d at 958. Like the
defendant in Hurst, Livingston made an oral motion at the disposition hearing which the district
court granted. Livingston attempts to distinguish this case from Hurst by asserting that he faced
a protected liberty interest in continuing his probation that did not exist for the defendant in
Hurst at a retained jurisdiction review hearing. Livingston’s logic is faulty, however, because
the nature of the proceeding makes no difference in the application of the rule. Further, in Hurst
we stated that “only a single motion for reduction of sentence, whether written or oral, is allowed
in all circumstances contemplated by the rule.” Id. at 439, 258 P.3d at 959. Therefore, Hurst is
dispositive in the case at bar and Livingston was precluded from filing another Rule 35 motion to
reduce sentence.
       Livingston further asserts that the holding in Hurst has been called into question by State
v. Clontz, 156 Idaho 787, 331 P.3d 529 (Ct. App. 2014). In Clontz, this Court noted that “Hurst
may have the consequence of effectively precluding a defendant from frank discussion at the

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relinquishment or revocation proceeding regarding reduction of sentence.” Id. at 790, 331 P.3d
at 532. This Court further observed that “under the rule in Hurst, the defendant may well waste
any potentially successful Rule 35 motion by raising the issue of reduction at relinquishment or
revocation.” Clontz, 156 Idaho at 790, n.3, 331 P.3d at 532 n.3. This Court ultimately held that
the trial court’s failure to sua sponte reduce a sentence upon relinquishment of jurisdiction or
revocation of probation is not subject to challenge on appeal absent a showing of fundamental
error. Id. at 792, 331 P.3d at 534. While it is true that we discussed the implications of
Rule 35(b) for a defendant who moves for a reduction of sentence at a disposition hearing and is
later foreclosed from filing a motion for reduction of sentence, we did not call that rule into
question.
       With respect to Livingston’s assertion that Hurst should be overruled, we find no cause to
do so for the above-stated reasons. Further, this Court amply discussed the interpretation of the
language of Rule 35 in Hurst when considering whether an oral request for leniency is a motion
under that Rule. The reasoning of Hurst is sound and we decline to overrule it. 3 Because
Livingston’s request for reduction of sentence at the disposition hearing was a Rule 35(b)
motion, the district court lacked jurisdiction to consider the merits of Livingston’s successive
motions. 4
                                              III.
                                        CONCLUSION
       Because the district court did not have jurisdiction to grant Livingston’s motions to
withdraw his guilty plea, we affirm the denial of the successive motions for reduction of
sentence.
       Judge GUTIERREZ and Judge HUSKEY CONCUR.




3
       Livingston’s subsidiary arguments are unremarkable and need not further be addressed.
4
       Livingston also argues that the court abused its discretion in denying his Rule 35 motion
on the merits. Because of our disposition of the issue of the court’s jurisdiction, we do not
address this argument.
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