Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Darla S. Williamson, District Judge.
The opinion of the court was delivered by: Melanson, Judge
2012 Unpublished Opinion No. 524
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT
BE CITED AS AUTHORITY
Order granting I.C.R. 35 motion for reduction of sentence, affirmed.
John Henry Gill appeals from the district court's order granting his I.C.R. 35 motion for reduction of his sentence. For the reasons set forth below, we affirm.
The state charged Gill with failure to register as a sex offender, I.C. § 18-8309, and being a persistent violator, I.C. § 19-2514. Pursuant to a plea agreement, Gill entered an Alford plea*fn1 to the failure to register charge and admitted that he had three prior felony convictions. He was sentenced to a unified term of twenty years, with a minimum period of confinement of ten years. Gill filed a Rule 35 motion for reduction of his sentence and submitted an affidavit and several documents in support of his motion. A hearing was held on Gill's motion and he concedes there was no testimony presented. The district court granted Gill's motion and reduced his sentence to a unified term of twenty years, with a minimum period of confinement of five years. On appeal, Gill filed a motion and renewed motion to augment the appellate record with the transcript of his Rule 35 hearing, both of which the Idaho Supreme Court denied.
Gill argues that the Idaho Supreme Court denied him due process and equal protection when it denied his motion to augment the record with the transcript of his Rule 35 hearing. Specifically, Gill asserts that, without such transcript, this Court has no way to review the district court's order reducing his sentence. Gill also asserts that, without access to the requested transcript, his defense counsel cannot make a professional evaluation of the issues that might be presented on appeal. As Gill asserted in his renewed motion to augment the record, Gill reiterates that, because there was dialogue between the district court and Gill at the Rule 35 hearing, the district court's decision to grant Gill's Rule 35 motion was based on something more than documentary evidence and argument. Gill makes this argument in an attempt to distinguish his case from State v. Strand, 137 Idaho 457, 50 P.3d 472 (2002). The state argues that Gill's case is indistinguishable from Strand and, therefore, his constitutional claim fails.
We first note that the issue of whether the Idaho Supreme Court deprived Gill due process and equal protection when it denied his motion to augment the record with the transcript of his Rule 35 hearing appears to be foreclosed from further review by this Court because the issue was submitted to the Idaho Supreme Court through an appellate motion and denied. See State v. Hardman, 121 Idaho 873, 875, 828 P.2d 902, 904 (Ct. App. 1992) (holding that the issue of the denial of a defendant's motion for waiver of fees for preparation of transcripts for appeal was foreclosed from further review because the issue was submitted to the Idaho Supreme Court through an appellate motion and denied).*fn2 Assuming we may address the issue, in Strand, the Idaho Supreme Court considered the question of whether it denied Strand due process and equal protection by denying his motion to augment the record with a transcript of the hearing on his motion for reduction of his sentence. The Court explained:
"Both equal protection and due process emphasize the central aim of our entire judicial system--all people charged with crime must, so far as the law is concerned, 'stand on an equality before the bar of justice in every American court.'" Griffin v. Illinois, 351 U.S. 12, 17, 76 S.Ct. 585, 590, 100 L. Ed. 891, 898 (1956) (citation omitted). The State is not required, however, to purchase a stenographer's transcript in every case in which a defendant cannot buy one, Id., nor is the State required to provide a transcript of all proceedings held below. Draper v. Washington, 372 U.S. 487, 83 S. Ct. 774, 9 L. Ed. 2d 899 (1963). "[T]he fact that an appellant with funds may choose to waste his money by unnecessarily including in the record all of the transcripts does not mean that the State must waste its funds by providing what is unnecessary for adequate appellate review." Id. at 496, 83 S. Ct. at 779, 9 L. Ed. 2d at 905. The State is only required to provide an indigent defendant a record on appeal that is sufficient for adequate appellate review of the errors alleged regarding the proceedings below. Draper v. Washington, 372 U.S. 487, 83 S. Ct. 774, 9 L. Ed. 2d 899 (1963); Lane v. Brown, 372 U.S. 477, 83 S. Ct. 768, 9 L. Ed. 2d 892 (1963); Eskridge v. Washington State Bd. of Prison Terms and Paroles, 357 U.S. 214, 78 S. Ct. 1061, 2 L. Ed. 2d 1269 (1958); and Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956).
In this case, neither the Defendant nor the State offered any testimony during the hearing held on August 28, 2000. The Defendant . . . did offer two documents into evidence, which were both admitted and made part of the record on appeal. Those documents did not provide any information regarding the Defendant. They were simply cover pages of addenda to the presentence investigation reports of two other defendants who were sentenced by two other judges. The documents simply showed that those defendants, whose names, offenses, and case numbers were excised from the documents, had each been sentenced to a retained jurisdiction.
A transcript of the hearing would have shown only the arguments, if any, Defendant's counsel made during the hearing in an attempt to convince the district court to grant the Defendant leniency. A transcript of the hearing is not necessary for the Defendant to argue on appeal why it was an abuse of discretion for the district court not to grant the leniency requested. In fact, a defendant does not even have the right to a hearing on a motion for reduction of sentence, State v. Hoffman, 112 Idaho 114, 730 P.2d 1034 (Ct. App. 1986); IDAHO R. CRIM. P. 35, nor is the district court required to enter findings to support its denial of the motion, State v. Ojeda, 119 Idaho 862, 810 P.2d 1148 (Ct. App. 1991). When a motion to reduce sentence is supported solely by documentary evidence and no hearing is held, the denial of that motion can be adequately reviewed on appeal based upon the evidence in the record. See State v. Ojeda, 119 Idaho 862, 810 P.2d 1148 (Ct. App. 1991); and State v. Hoffman, ...