2014 Unpublished Opinion No. 382
Appeal from the District Court of the Seventh Judicial District, State of Idaho, Madison County. Hon. Gregory W. Moeller, District Judge.
Order revoking probation and reinstating previously suspended unified four-year sentences, with two-year determinate terms, for two counts of burglary and one count of grand theft by possession of stolen property, affirmed.
Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.
Before LANSING, Judge; GRATTON, Judge; and MELANSON, Judge
Ian A. Neff pled guilty to two counts of burglary, I.C. § 18-1401, and one count of grand theft by possession of stolen property, I.C. §§ 18-2403(4) and 18-2407(1)(b)(1)(8). In exchange for his guilty pleas, the state agreed not to file additional charges. The district court withheld judgment and placed Neff on probation for a period of five years.
Neff thereafter admitted to violating the terms of his probation. The district court revoked the withheld judgment and Neff's probation and sentenced Neff to concurrent unified terms of four years, with minimum periods of confinement of two years. The district court suspended the sentences and placed Neff on probation. Neff admitted to violating the terms of this probation. The district court revoked Neff's probation, ordered execution of the sentences, but retained jurisdiction. Following completion of Neff's rider, the district court suspended the sentences and placed Neff on probation. Neff again admitted to violating the terms of his probation, but the district court continued Neff's probation. After this fourth period of probation, Neff again admitted to violating the terms of his probation. The district court revoked Neff's probation and ordered his sentences into execution. Neff filed an I.C.R. 35 motion for reduction of his sentences which the district court denied.
After filing this appeal, and before assignment to this Court, Neff 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 Neff's motion. On appeal, Neff 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 sentences are excessive, the district court should have sua sponte reduced his sentences upon revocation of probation, and the district court erred in denying his Rule 35 motion for reduction of his sentences.
A. Denial of Motion to Augment Record
Neff 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.
Neff 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, Neff 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, Neff 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 ...