State v. David Lee Kelley

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 41440
STATE OF IDAHO, ) 2014 Unpublished Opinion No. 671
)
Plaintiff-Respondent, ) Filed: August 15, 2014
)
v. ) Stephen W. Kenyon, Clerk
)
DAVID LEE KELLEY, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Third Judicial District, State of Idaho,
Canyon County. Hon. Molly J. Huskey, District Judge.
Order denying I.C.R. 35 motion for reduction of sentence, affirmed.
Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent.
________________________________________________
Before LANSING, Judge; GRATTON, Judge;
and MELANSON, Judge
PER CURIAM
David Lee Kelley was convicted of felony driving under the influence, Idaho Code
§§ 18-8004, 18-8005. The district court imposed a unified sentence of ten years with five years
determinate. Kelley filed an Idaho Criminal Rule 35 motion, which the district court denied.
Kelley appeals.
A motion for reduction of sentence under I.C.R. 35 is essentially a plea for leniency,
addressed to the sound discretion of the court. State v. Knighton, 143 Idaho 318, 319, 144 P.3d
23, 24 (2006); State v. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App. 1989). In
presenting a Rule 35 motion, the defendant must show that the sentence is excessive in light of
new or additional information subsequently provided to the district court in support of the
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motion. State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007). In conducting our
review of the grant or denial of a Rule 35 motion, we apply the same criteria used for
determining the reasonableness of the original sentence. State v. Forde, 113 Idaho 21, 22, 740
P.2d 63, 64 (Ct. App. 1987); Lopez, 106 Idaho at 449-51, 680 P.2d at 871-73. Upon review of
the record, including any new information submitted with Kelley’s Rule 35 motion, we conclude
no abuse of discretion has been shown. The parties dispute whether the district court lost
jurisdiction in this case by a delay in acting on Kelley’s motion. Because resolution of that issue
would not alter the outcome in this case, we need not address it. Even assuming the district court
possessed jurisdiction, Kelly has not shown error in the denial of the motion. Therefore, the
district court’s order denying Kelley’s Rule 35 motion is affirmed.
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