               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                   Docket Nos. 42962 & 42963

STATE OF IDAHO,                                  )    2016 Unpublished Opinion No. 473
                                                 )
       Plaintiff-Respondent,                     )    Filed: April 11, 2016
                                                 )
v.                                               )    Stephen W. Kenyon, Clerk
                                                 )
DANA LYDELL SMITH,                               )    THIS IS AN UNPUBLISHED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,
       Minidoka County. Hon. Randy J. Stoker, District Judge.

       Order denying I.C.R. 35 motion to correct an illegal sentence, affirmed; order
       denying motion for new trial, affirmed.

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

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

LANSING, Judge Pro Tem
       In these consolidated cases, Dana Lydell Smith appeals from the district court’s orders
denying Smith’s I.C.R. 35 motion for correction of an illegal sentence and his motion for a new
trial. For the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       In March 2007, Smith was found guilty by a jury of grand theft and was sentenced to a
unified term of fourteen years, with a determinate term of seven years. This Court affirmed
Smith’s judgment of conviction and sentence in an unpublished opinion. State v. Smith, Docket
Nos. 35216 and 35604 (Ct. App. May 20, 2009). In 2015, Smith filed a motion for correction of
an illegal sentence pursuant to I.C.R. 35 and a request for appointment of counsel. Smith also



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filed a motion for a new trial. In both motions, Smith claimed his conviction and sentence were
illegal because the district court did not order a mental health evaluation to ensure Smith was
competent. The district court denied Smith’s motions, holding that they were untimely. Smith
appeals.
                                                  II.
                                            ANALYSIS
A.      Rule 35
        In Docket No. 42962, Smith appeals from the district court’s order denying his Rule 35
motion for correction of an illegal sentence. The parties dispute whether subsection (a) or (b) of
Rule 35 applies to Smith’s claim. Smith asserts that his sentence was illegal and may be
corrected under Rule 35(a), which provides that the district court may correct an illegal sentence
at any time. The state, on the other hand, alleges that Smith’s claim is an untimely attack on the
manner in which the sentence was imposed. The state asserts that the motion is governed by
Rule 35(b), which provides that a motion to adjust or modify a sentence imposed in an illegal
manner must be made within 120 days of the entry of judgment. We need not resolve this
dispute for, even assuming that Smith’s challenge is governed under Rule 35(a) and was
therefore timely, it fails on the merits.
        Whether a sentence is illegal is a question of law freely reviewable by the appellate court.
State v. Josephson, 124 Idaho 286, 287, 858 P.2d 825, 826 (Ct. App. 1993); State v. Rodriguez,
119 Idaho 895, 897, 811 P.2d 505, 507 (Ct. App. 1991). An “illegal sentence” under Rule 35(a)
is a sentence that is illegal from the face of the record; i.e., does not involve significant questions
of fact nor require an evidentiary hearing to determine its illegality. State v. Clements, 148 Idaho
82, 87, 218 P.3d 1143, 1148 (2009). Thus, Rule 35(a) may be used only to resolve legal
questions surrounding the defendant’s sentence and not to resolve factual issues. Id. at 88, 218
P.3d at 1149.
        While incarcerated prior to trial, Smith was evaluated by a number of mental health
clinicians.   Several reports mention post-traumatic stress disorder (PTSD) stemming from




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Smith’s military service.1 As a result, Smith suffered from nightmares. In addition, some
reports say that Smith suffered from chronic mild paranoia and hallucinations. One clinician
attributed Smith’s paranoia and hallucinations to his use of illegal drugs, including
methamphetamine. The clinician concluded that no treatment for Smith was necessary at the
time he was examined and that the clinician expected Smith’s paranoia to subside after a “few
weeks.” On the other hand, a different report stated that Smith appeared to be in a “hypomanic
state of bipolar.”
        The district court ordered a mental health examination of Smith. The clinician reported
that Smith had an adjustment disorder with anxiety and a personality disorder with antisocial and
narcissistic traits. Ultimately, the clinician reported that, “I believe [Smith’s] mental health
prognosis is good as I do not believe he has a major mental illness,” and suggested no treatment
plan for Smith.
        In 2005, a psychologist evaluated Smith’s competence to proceed to trial.                The
psychologist concluded that Smith had the “ability to have a rational and factual understanding
of the proceedings against [him] and of the punishment specified for the offenses charged.”
However, the psychologist also concluded that Smith had the “inability to adequately consult
with his counsel or to participate in the proceedings against him with a reasonable degree of
rational understanding.” The psychologist indicated that Smith “may not have the ability to
proceed through the court process.” The psychologist explained that Smith understood the
nature of the proceedings against him and comprehended the range and nature of possible
penalties, but the psychologist questioned whether Smith could manifest appropriate courtroom
behavior based upon his “history of disruptive behavior in the courtroom.” The psychologist
was also concerned that Smith “may not testify relevantly given his preoccupation with legal
facts and apparent delusional themes.” The psychologist suggested that Smith would benefit
from an antipsychotic medication.




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        Smith claimed to several clinicians that he suffered PTSD as a result of being shot in the
shoulder while serving in Panama. However, one report stated that Smith was discharged shortly
after entering the military, as a result of a shoulder injury during basic training and that there was
no basis for Smith’s claimed PTSD.

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       A second psychologist examined Smith and concluded that his intellectual functioning
was in the “average range” and that he did not have any type of mental defect. The psychologist
acknowledged that Smith claimed to have been diagnosed with bipolar disorder, which the
psychologist could not confirm. She noted that a diagnosis of bipolar disorder alone would not
necessarily make Smith incompetent to proceed to trial. The psychologist suggested that Smith’s
history of substance abuse, in combination with his “longstanding antisocial personality disorder
and prominent narcissistic personality traits,” were the cause of Smith’s angry, irritable,
grandiose, and paranoid behavior. The psychologist explained Smith’s inability to assist in his
defense and concluded:
               Aspects of [Smith’s] personality disorder . . . make him believe that he is
       always right, that he is smarter than everyone around him, that he is special and
       unique, that he should not have to abide by the rules of society like other people,
       that he should be entitled to special treatment, and that he is very willing to
       exploit other people to achieve his own goals, make him extremely difficult to
       treat in therapy or any type of clinical setting. These same personality
       characteristics are also currently making it very difficult for his Attorney to
       interact productively with [Smith]. [Smith] appears to enjoy trying to impress
       others with his intellect and his own knowledge of the law and he tends to try to
       intimidate others by shouting them down or talking very rapidly and not giving
       anyone an opportunity to talk.
       In May 2007, a third psychologist reviewed the various reports described above,
reviewed Smith’s medical records, and interviewed him for the purpose of providing a
comprehensive psychological evaluation.       The psychologist diagnosed Smith with bipolar
disorder and antisocial personality disorder with borderline and histrionic traits.            The
psychologist explained that Smith had the capacity to understand the proceedings against him,
including the court process and the consequences he was facing. The psychologist explained:
               [Smith’s] ability to assist in his own defense presents a question, however.
       He can and does ramble off rather inappropriately, both in terms of content and
       style intermittently. In my view that likely seriously impairs his ability to work
       systematically with his attorney in a sustained fashion. That is, there are brief
       periods in which he gets off target, is fairly irrational, bizarre, and grandiose. In
       those regards, it is my opinion that he cannot effectively and systematically work
       with his defense attorney in a sustained fashion.
               ....
               [Smith] can in all likelihood be treated safely on an outpatient basis and
       should resume medications to stabilize his mood. That being the case, once those



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       medications would become effective then he could in all likelihood proceed with
       the matters in court that he is currently facing.
Based upon this May 2007 report, Smith contends that he was not competent when he was
sentenced more than two and one-half years later. That is, Smith asserts that his sentence is
illegal because it was imposed after he was found incompetent and without Smith having been
reevaluated to determine whether he had gained competence.
       Contrary to Smith’s assertion, it is not clear from the face of the record that he was
incompetent at the time of his sentencing. As explained by all who examined him, Smith
understood the nature of the charges against him and the potential sentences he faced. It appears
he also had the ability to understand the potential defenses proposed by his counsel. Although
several examiners reported that they did not believe Smith was capable of participating in his
own defense, the undertone of each examiner’s finding was that Smith has a personality disorder
(rather than a serious mental illness) that made him unwilling to accept expert advice and that
Smith shouted and talked loudly over others instead of listening to advice.            The final
psychologist, whose report Smith relies upon as proof that he was incompetent, opined that if
Smith were given medication to treat his disorder, he likely would become competent to proceed.
This psychologist’s recommendation, taken in context, was that Smith be medicated to stabilize
his mood in order for him to be able to cooperate with his counsel. After that evaluation
occurred, at a hearing Smith’s counsel reported to the district court that Smith was taking the
prescribed medication, and counsel asked that the matter be set for trial. These circumstances
raise an inference that the medication did, indeed, improve Smith’s mental state such that he was
able to assist with his defense and cooperate with counsel.
       This record suggests that Smith had personality disorder, not a serious mental illness, and
does not establish that he was incompetent at the time of his sentencing hearing, which occurred
more than two and one-half years after the May 2007 evaluation. Rather, whether Smith was
incompetent at that time is, at best, an unresolved factual issue that may not be resolved on a
Rule 35(a) motion. It follows that Smith’s sentence is not “illegal from the face of the record,”
see Clements, 148 Idaho at 86, 218 P.3d at 1147, and the district court did not err in denying
Smith’s Rule 35 motion.




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B.     Motion for Appointment of Counsel
       Smith alleges that the district court erred in failing to rule on his request for appointment
of counsel before addressing his Rule 35 motion. A criminal defendant has a right to counsel at
all critical stages of the criminal process, including pursuit of a Rule 35 motion.             I.C.
§ 19-852(2)(c); Murray v. State, 121 Idaho 918, 923 n.3, 828 P.2d 1323, 1328 n.3 (Ct. App.
1992). However, the court may deny appointment of counsel if it finds the motion is not a
proceeding that a reasonable person with adequate means would be willing to bring at his or her
own expense and is therefore a frivolous proceeding. I.C. § 19-852(2)(c). Thus, a defendant
may be denied appointment of counsel to assist in pursuing a Rule 35 motion if the trial court
finds the motion to be frivolous. When a court is presented with a request for appointment of
counsel, the court must address that request before rendering a ruling on the substantive issues in
the underlying case. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004).
       In this case, the district court did not rule on Smith’s request for appointment of counsel
before ruling on the substantive issues in Smith’s Rule 35 motion. Accordingly, the district court
erred. However, error is not reversible unless it is prejudicial. State v. Stoddard, 105 Idaho 169,
171, 667 P.2d 272, 274 (Ct. App. 1983). With limited exceptions, even constitutional error is not
necessarily prejudicial error. Id.
       A court’s failure to act on a motion for appointed counsel constitutes reversible error only
if the movant has presented a “colorably meritorious claim,” the presentation of which might
have been improved by the assistance of counsel. Swisher v. State, 129 Idaho 467, 469, 926 P.2d
1314, 1316 (Ct. App. 1996) (holding that failure to address request for counsel on claims
unquestionably barred by the statute of limitation was harmless error). Here, the record does not
show on its face that Smith’s sentence was illegal. Appointment of counsel would not have
changed the content of that record. Thus, the district court’s error in failing to act on Smith’s
request for appointment of counsel before addressing his Rule 35 motion was harmless.
C.     New Trial
       In Docket No. 42963, Smith filed an appeal from the district court’s order denying his
motion for a new trial, but he has raised no issue on appeal asserting error in the order.
Accordingly, any claim of error is waived.




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                                               III.
                                         CONCLUSION
       Smith has not shown his sentence is illegal. He has shown that the district court erred in
addressing the merits of his Rule 35 motion without first addressing his request for appointment
of counsel, but this error was harmless. Therefore, the district court’s order denying Smith’s
motion for correction of an illegal sentence and motion for a new trial are affirmed.
       Judge GUTIERREZ and Judge GRATTON, CONCUR.




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