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State v. Mumme

Court of Appeals of Idaho

June 19, 2013

STATE OF IDAHO, Plaintiff-Respondent,
v.
CHARLES JOSEPH MUMME, Defendant-Appellant.

UNPUBLISHED OPINION

2013 Unpublished Opinion No. 539

Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. David C. Nye, District Judge.

Order denying Idaho Criminal Rule 35 motion for reduction of sentence, affirmed.

Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy Attorney General, Boise, for respondent.

Before GUTIERREZ, Chief Judge; LANSING, Judge; and MELANSON, Judge

PER CURIAM

In docket number 39889, Charles Joseph Mumme pled guilty to burglary, Idaho Code §§ 18-1401, 18-1403. The district court imposed a unified sentence of five years, with two years determinate, but suspended the sentence and placed Mumme on probation. Subsequently, Mumme violated the terms of his probation, including incurring an additional criminal charge. The district court revoked probation, executed the underlying sentence, and retained jurisdiction.

In docket number 39890, Mumme pled guilty to grand theft, I.C. §§ 18-2403(1), 18-2407(1). The district court sentenced Mumme to a unified term of six years, with three years determinate, to run concurrently with Mumme's sentence in docket number 39889 and retained jurisdiction. After review of Mumme's period of retained jurisdiction, the district court relinquished jurisdiction in both cases. Mumme filed Idaho Criminal Rule 35 motions for reduction of his sentences, which the district court denied. Mumme appealed, and the two cases were consolidated for appeal.

After filing this appeal, and before assignment to this Court, Mumme filed a motion to augment the record with additional transcripts. The Idaho Supreme Court entered an order denying Mumme's motion. On appeal, Mumme 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 by denying his Rule 35 motion. [1]

A. Denial of Motion to Augment the Record

Mumme 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.

Mumme 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, Mumme asks us to determine ...


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