State v. Daniel Chippewa

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 40562

STATE OF IDAHO, ) 2013 Unpublished Opinion No. 617
)
Plaintiff-Respondent, ) Filed: August 6, 2013
)
v. ) Stephen W. Kenyon, Clerk
)
DANIEL CHIPPEWA, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)

Appeal from the District Court of the Seventh Judicial District, State of Idaho,
Bingham County. Hon. Darren B. Simpson, District Judge.

Orders revoking probation and denying 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; Daphne J. Huang, Deputy
Attorney General, Boise, for respondent.
________________________________________________

Before LANSING, Judge; GRATTON, Judge;
and MELANSON, Judge

PER CURIAM
Daniel Chippewa appeals from the district court’s order revoking probation, and its order
denying Chippewa’s Idaho Criminal Rule 35 motion for reduction of sentence. Chippewa also
challenges an Idaho Supreme Court order denying his motion to augment the record for this
appeal. We affirm.
I.
BACKGROUND
The State charged Chippewa with driving under the influence with a felony enhancement.
Pursuant to a plea agreement, Chippewa pleaded guilty to felony driving under the influence and

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the State agreed to recommend probation. Prior to sentencing, Chippewa was accepted into the
Bingham County drug court. Thereafter, the district court imposed a unified sentence of nine
years with six years determinate, suspended the sentence, and placed Chippewa on probation
with the condition that he satisfactorily complete drug court. Following a report of probation
violation, the district court revoked Chippewa’s probation and retained jurisdiction. At the close
of the retained jurisdiction period, the district court again suspended Chippewa’s sentence and
placed him on probation.
Chippewa subsequently admitted to violating several terms of his probation. The district
court revoked probation and ordered execution of the original sentence. Chippewa filed a
motion for reduction of his sentence pursuant to Idaho Criminal Rule 35, which the district court
denied. Chippewa appeals, contending that the district court abused its discretion in failing to
sua sponte reduce his sentence upon revoking probation and in denying the motion for reduction
of sentence.
II.
ANALYSIS
Chippewa asserts on appeal that the district court erred in failing to sua sponte reduce his
sentence upon revoking probation and in denying his subsequent motion for reduction of
sentence. In addition, Chippewa’s appellate brief argues that the Idaho Supreme Court’s order
denying his motion to augment the appellate record with additional transcripts violated
Chippewa’s constitutional rights to due process, equal protection, and effective assistance of
counsel.
Chippewa filed a motion to suspend the briefing schedule and to augment the appellate
record with various transcripts. The Idaho Supreme Court denied Chippewa’s motion for
transcripts, and this case was subsequently assigned to this Court for disposition.
Chippewa 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

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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.
Chippewa 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,
Chippewa 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, Chippewa 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, Chippewa 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). Chippewa 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 Chippewa
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

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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, 1
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 Chippewa’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 of the Supreme Court. The filing of a motion
to augment shall not suspend or stay the appellate process or the briefing
schedule.

Additionally, Rule 110 provides:
All motions, petitions, briefs and other appellate documents, other than the
initial notice of appeal, shall be filed with the Clerk of the Supreme Court as
required by the Idaho Appellate Rules with the court heading of the Supreme
Court of the State of Idaho as provided by Rule 6. There shall be no separate
filings directed to or filed with the Court of Appeals. In the event of an
assignment of a case to the Court of Appeals, the title of the proceeding and the
identifying number thereof shall not be changed except that the Clerk of the

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Idaho Code Section 1-2406(1) provides:

Any provision of law to the contrary notwithstanding, the Idaho court of
appeals shall have jurisdiction to hear and to decide all cases assigned to it by the
Idaho supreme court; provided, that the supreme court shall not assign cases
invoking the supreme court’s original jurisdiction, nor appeals from imposition of
sentences of capital punishment in criminal cases, nor appeals from the industrial
commission, nor appeals from the public utilities commission.

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Supreme Court may add additional letters or other notations to the case number so
as to identify the assignment of the case. All case files shall be maintained in the
office of the Clerk of the Supreme Court.

Chippewa argues that these rules function to require all motions to be filed with the Supreme
Court.
We reject that interpretation of the rules because we recognize this to be contrary to the
grant of authority in Idaho Appellate Rule 101. Rule 101 provides that the “Idaho Appellate
Rules shall apply to all proceedings in the Court of Appeals as well as the following rules.” By
way of Rule 101, this Court also has authority to entertain motions to augment the record as
provided by Rule 30 after the case has been assigned to this Court. Moreover, if we were to
accept Chippewa’s interpretation, it would result in a lack of authority of this Court to entertain
any motions. Idaho Appellate Rule 32(c), applicable to the Court of Appeals via Rule 101,
allows any other motions permitted under the rules, other than a motion to dismiss, to be made at
any time, before or after the case is set for oral argument. By way of that authority, this Court
routinely rules on motions such as motions for continuance, motions regarding briefing
(including motions to join briefing, file supplemental briefing, exceed the page limits, revise a
brief, request an extension of time to file a brief, or request permission to file a late brief),
motions to expedite the appeal, motions to withdraw as counsel, motions for a stay of
proceedings, motions to augment the record, renewed motions to augment the record, and
motions to allow or to vacate oral argument. Under the Idaho Appellate Rules, we have the
authority to review and rule on motions made by a party after the case has been assigned to this
Court.
In sum, we adhere to our conclusion in Morgan that reviewing the denial of a motion to
augment the record by the Supreme Court is beyond the scope of our authority. If a party files a
renewed motion after the case assignment to this Court and presents new information or
justification for the motion, we have the authority to rule on the motion.
Chippewa had an opportunity to present his constitutional arguments to the Supreme
Court and that Court denied his motion. He has no right to appeal that denial to the Idaho Court
of Appeals, and we have no authority to consider such an appeal. As such, we will not address
Chippewa’s attempt to distinguish his case from Morgan, based on his appeal from the sentence,

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because it still falls within the challenge to the Idaho Supreme Court’s denial of the motion to
augment.
Chippewa next asserts the district court abused its discretion in failing to sua sponte
reduce his sentence upon revoking probation. Sentencing is a matter for the trial court’s
discretion. Both our standard of review and the factors to be considered in evaluating the
reasonableness of the sentence are well established and need not be repeated here. See State v.
Hernandez, 121 Idaho 114, 117-18, 822 P.2d 1011, 1014-15 (Ct. App. 1991); State v. Lopez, 106
Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct. App. 1984); State v. Toohill, 103 Idaho 565, 568,
650 P.2d 707, 710 (Ct. App. 1982). When reviewing the length of a sentence, we consider the
defendant’s entire sentence. State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007).
When we review a sentence that is ordered into execution following a period of
probation, we will examine the entire record encompassing events before and after the original
judgment. State v. Hanington, 148 Idaho 26, 29, 218 P.3d 5, 8 (Ct. App. 2009). We base our
review upon the facts existing when the sentence was imposed as well as events occurring
between the original sentencing and the revocation of the probation. Id. Thus, this Court will
consider the elements of the record before the trial court that are properly made part of the record
on appeal and are relevant to the defendant’s contention that the trial court should have reduced
the sentence sua sponte upon revocation of probation. Morgan, 153 Idaho at 621, 288 P.3d at
838.
Chippewa last asserts that the district court erred by denying his motion to modify his
sentence by again retaining jurisdiction rather than executing his sentence. 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
provided to the district court in support of the motion. State v. Huffman, 144 Idaho 201, 203,
159 P.3d 838, 840 (2007).
We conclude we have no authority to address the Idaho Supreme Court’s denial of
Chippewa’s motion to augment the record. We further conclude the district court did not abuse
its discretion in revoking probation without sua sponte reducing Chippewa’s sentence or in

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denying his Rule 35 motion. The district court’s orders revoking probation and denying
Chippewa’s Rule 35 motion are affirmed.

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