Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Patrick H. Owen, District Judge.
2013 Unpublished Opinion No. 451
Stephen W. Kenyon, Clerk THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Order revoking probation and requiring execution of unified eight-year sentence with two-year determinate term for felony driving under the influence, affirmed.
Before GUTIERREZ, Chief Judge; LANSING, Judge; and MELANSON, Judge
Douglas Arthur Liles pled guilty to felony driving under the influence. I.C. §§ 18-8004, 18-8005(6). The district court imposed a unified ten-year sentence, with a three-year determinate term, but after a period of retained jurisdiction, suspended the sentence and placed Liles on probation. Subsequently, Liles admitted to violating several terms of the probation, and the district court consequently revoked probation and ordered execution of the Liles's sentence. However, the district court reduced Liles's sentence to a unified term of eight years, with a minimum period of confinement of two years. Liles appealed.
After filing this appeal, and before assignment to this Court, Liles filed a motion to augment the record with various transcripts from his prior probation violation proceedings. The state objected to the augmentation, and the Idaho Supreme Court entered an order denying Liles's motion. On appeal, Liles argues that the Idaho Supreme Court denied him due process, equal protection, and effective assistance of counsel when it denied his motion to augment the record and contends that the district court abused its discretion in revoking probation, his sentence is excessive, and the district court should have further sua sponte reduced his sentence upon revocation of probation.
A. Denial of Motion to Augment Record
Liles asks this Court to hold that the Idaho Supreme Court deprived him of due process equal protection, and effective assistance of counsel when it denied his motion to augment the record. We do not, however, have the authority to review and, in effect, reverse an Idaho Supreme Court decision on a motion made prior to assignment of the case to this Court on the ground that the Supreme Court decision was contrary to the state or federal constitutions or other law. See State v. Morgan, 153 Idaho 618, 620, 288 P.3d 835, 837 (Ct. App. 2012). Such an undertaking would be tantamount to the Court of Appeals entertaining an appeal from an Idaho Supreme Court decision and is plainly beyond the purview of this Court. Id. If a motion is renewed by the movant and new information or a new or expanded basis for the motion is presented to this Court that was not presented to the Supreme Court, we deem it within the authority of this Court to evaluate and rule on the renewed motion in the exercise of our responsibility to address all aspects of an appeal from the time of assignment to this Court. Id. Such may occur if the appellant's or respondent's briefs have refined, clarified, or expanded issues on appeal in such a way as to demonstrate the need for additional records or transcripts, or where new evidence is presented to support a renewed motion. Id.
Liles has not filed with this Court a renewed motion to augment the record or presented to this Court in his briefing any significant new facts or a new justification for augmentation beyond that already advanced in his motion to the Supreme Court. In essence, Liles asks us to determine that the Idaho Supreme Court violated constitutional law by denying his motion. Although in Morgan we held a challenge to an Idaho Supreme Court denial of a motion to augment the record is beyond the scope of our authority to review without a renewed motion, Liles asserts that this Court indeed has the authority to address the due process and equal protection issues on appeal. He claims that such authority is implicit in the grant of authority found in Idaho Appellate Rule 108. In fact, Liles argues that a renewed motion to augment the record cannot be made to this Court due to restrictions contained within Idaho Appellate Rules 30 and 110.
Rule 108(a) states that the "Court of Appeals shall hear and decide all cases assigned to it by the Supreme Court." The rule also contains a list of the types of cases that will not be assigned to the Court of Appeals. See I.A.R. 108(a). Liles asserts that, because the constitutional issues raised in his appellant's brief do not fall within the list of cases not to be assigned to the Court of Appeals, this Court has the authority to address the issues. In other words, the assignment of this case to the Court of Appeals functions as an implicit grant of authority from the Supreme Court to review his claims about the constitutionality of the Supreme Court's decision to deny his request for additional transcripts.
We recognize that Rule 108 requires this Court to decide all cases assigned by the Supreme Court. However, we do not deem this grant of authority to be as broad as Liles would interpret it. Idaho Code Section 1-2402 states this Court is subordinate to the Idaho Supreme Court. Idaho Code Section 1-2403 further states this Court is subject to administration and supervision by the Supreme Court pursuant to Article 5, Section 2 of the Idaho Constitution. When read in conjunction with I.C. § 1-2406(1), which closely mirrors the wording in Rule 108,*fn1 we must conclude, as we did in Morgan, that it is plainly beyond our scope of authority to review a decision made by the Supreme Court before assignment of the case to this Court. We will not address the issue of a denied motion to augment the record made before the Supreme Court absent some basis for renewing the motion. As we have previously stated, this may occur via a renewed motion with new evidence to support it filed with this Court, or the presentation of refined, clarified, or expanded issues on appeal that demonstrates the need for additional records or transcripts, in effect renewing the motion.
This brings us to Liles's argument that a renewed motion to augment the record cannot be made to this Court due to restrictions contained within Idaho Appellate Rules 30 and 110. Rule 30(a) reads as follows:
Any party may move the Supreme Court to augment or delete from the settled reporter's transcript or clerk's or agency's record. . . . Any party may within fourteen (14) days after service of the motion, file a brief or memorandum in opposition thereto. Unless otherwise expressly ordered by the Supreme Court such motion shall be determined without oral argument. The reporter's transcript and clerk's or agency's record may also be augmented or portions deleted by stipulation of the parties and order ...