State v. Kevin J. Browning

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket Nos. 39848/39849

STATE OF IDAHO, ) 2013 Unpublished Opinion No. 334
)
Plaintiff-Respondent, ) Filed: January 22, 2013
)
v. ) Stephen W. Kenyon, Clerk
)
KEVIN J. BROWNING, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)

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

Orders denying Idaho Criminal Rule 35 motions for correction of an illegal
sentence, affirmed.

Sara B. Thomas, State Appellate Public Defender; Sarah E. Tompkins, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent.
________________________________________________

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

PER CURIAM
In docket number 39848, Kevin J. Browning pled guilty to felony driving under the
influence. Idaho Code §§ 18-8004, 18-8005(5). The district court sentenced Browning to a
unified term of five years, with two years determinate, but suspended the sentence and placed
him on probation. In docket number 39849, Browning pled guilty to a separate charge of felony
driving under the influence. I.C. §§ 18-8004, 18-8005(5). The district court sentenced
Browning to a unified term of six years, with three years determinate, but again suspended the
sentence and placed him on probation. After Browning violated the terms of his probation
several times in both cases, the district court revoked probation in both cases. The district court
imposed the underlying sentence in docket number 39848 and imposed a reduced sentence of a

1
unified term of five years, with two years determinate, in docket number 39849. The district
court also ordered the two sentences to run concurrently with each other. Approximately eight
months later, Browning filed Idaho Criminal Rule 35 motions in both cases for correction of
illegal sentences. After holding an evidentiary hearing, the district court denied the motions.
Browning appeals, contending the district court erred in denying his Rule 35 motions. The two
cases are consolidated on appeal.
Pursuant to Idaho Criminal Rule 35, a district court may correct an illegal sentence at any
time. State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007). Generally, whether a
sentence is illegal is a question of law, over which we exercise free review. State v. Farwell, 144
Idaho 732, 735, 170 P.3d 397, 400 (2007). In State v. Clements, 148 Idaho 82, 87, 218 P.3d
1143, 1148 (2009), the Idaho Supreme Court held that the term “illegal sentence” under Rule 35
is narrowly interpreted as a sentence that is illegal from the face of the record, i.e., does not
involve significant questions of fact or require an evidentiary hearing. Rule 35 is limited to legal
questions surrounding the defendant’s sentence, and any factual issues must be apparent from the
face of the record. Clements, 148 Idaho at 88, 218 P.3d at 1149.
In applying the standard set forth above, we determine Browning’s sentences are not
illegal from the face of the record. The basis of Browning’s Rule 35 motions is that his
sentences are illegal based on alleged violations of the Americans with Disabilities Act (ADA).
Specifically, Browning alleged the district court refused to retain jurisdiction and permit
Browning the opportunity to participate in a rider program due to, in some degree, Browning’s
status as a deaf individual. On appeal, Browning concedes the claim necessitates additional fact
finding for resolution. However, this Court is constrained to review only the face of the record.
Browning’s sentences are well within the statutory maximum for felony driving under the
influence and are not otherwise contrary to applicable law. Accordingly, the district court’s
orders denying Browning’s Rule 35 motions are affirmed.

2