Rehearing Denied Jan. 29, 2014.
Sara B. Thomas, Idaho State Appellate Public Defender's Office, Boise, for appellant. Shawn F. Wilkerson Deputy Appellate Public Defender argued.
Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Mark W. Olson, Deputy Attorney General argued.
BURDICK, Chief Justice.
Jose Esteban Brunet appealed the Ada County district court's order relinquishing jurisdiction and denying his oral motion requesting leniency pursuant to Rule 35 of the Idaho Criminal Rules. Appellant also argued that this Court's order denying his motion to augment the appellate record violated his constitutional rights to due process and equal protection, and would deny him effective assistance of counsel on appeal. We affirm the district court's order and hold that Brunet failed to show that the denial of his motion to augment the appellate record with additional transcripts violated his constitutional rights.
I. FACTUAL AND PROCEDURAL BACKGROUND
On March 18, 2010, Brunet was at the victim's home drinking and smoking marijuana while already under the influence of prescription muscle relaxers. When the victim left the room, Brunet noticed the victim's checkbook and took two checks from it. Brunet later forged both checks, which were eventually cashed for $300.00 each. During an investigation, Brunet admitted to police that he stole and forged the checks and then shared in the proceeds.
The Ada County Prosecuting Attorney charged Brunet with grand theft and forgery. At a hearing on November 12, 2010, Brunet pleaded guilty to grand theft, and the State dismissed the forgery charge pursuant to a plea agreement. On December 23, 2010, the district court sentenced Brunet to an aggregate term of five years, with the first two years fixed; however, the court suspended the sentence and placed Brunet on probation for five years. The court incorporated probation into Brunet's sentence specifically to provide him with " some tools and some resources" to effect personal change in light of his difficult upbringing.
Approximately three months after being placed on probation, Brunet was cited for petit theft. In April of 2011, Brunet was charged with a total of seven probation violations. On May 13, 2011, Brunet admitted to three of the charges and, in exchange, the
remaining four were dismissed. Specifically, Brunet admitted to violating his probation by committing the crime of petit theft, failing to notify his supervising officer of that charge, and failing to make himself available for supervision and program participation as instructed by his supervising officer. On May 20, 2011, the district court revoked Brunet's probation and imposed his sentence, but retained jurisdiction.
On December 23, 2011, exactly one year from the date of the original sentencing, the district court held a retained jurisdiction review hearing. There, the district court reviewed what it regarded as a " very negative rider report," which recommended that the court relinquish jurisdiction. The court noted at the hearing that Brunet had not completed any of his programming while on the rider. In preparation for the hearing, the judge reviewed the report from the institution, his own notes from the prior sentencing hearings, and some of the original Presentence Investigation (PSI) materials. At the conclusion of the rider review hearing, the district court relinquished jurisdiction. The court also denied Brunet's oral Rule 35 motion for leniency made during that review hearing and instead ordered that the defendant serve the sentence originally imposed by the May 25, 2011 Judgment and Conviction.
Brunet filed a timely appeal of the district court's order on January 4, 2012. On March 8, 2012, the clerk filed a Certificate of Service for the appellate record. Brunet's brief was originally due to the Court by May 29, 2012. On that date, Brunet filed an extension, and an extended deadline for submission of his brief was set for July 3, 2012. On that second due date, Brunet again did not file his brief. Instead, he moved to suspend the briefing schedule and augment the record with two as-yet unprepared transcripts of hearings associated with his underlying grand theft conviction. Specifically, Brunet requested transcripts of his November 12, 2010 plea hearing and his December 23, 2010 sentencing hearing. This motion, which was filed nearly six months after his appeal was filed, requested that these transcripts be prepared at public expense. The State objected to the motion on July 10, 2012, and this Court denied the motion on July 13, 2012. At that time, this Court again extended the deadline for the submission of Brunet's brief, this time to August 17, 2012. Brunet complied with the new deadline.
II. ISSUES ON APPEAL
1. Whether the Idaho Supreme Court violated Brunet's constitutional rights when it denied his motion to augment the appellate record.
2. Whether the district court abused its discretion when it relinquished jurisdiction.
3. Whether the district court abused its discretion when it denied Brunet's oral I.C.R. Rule 35 ...