State v. Andrew Garrett Barry

On June 28, 2015, Andrew Barry forced entry to recover a dog, assaulted S.F., attempted to choke him, broke C.F.’s foot while trying to take a gun, and injured the victims’ son; Barry left with the dog and was charged.
Barry pled guilty to burglary pursuant to a plea agreement; other charges were dismissed.
The district court sentenced Barry to a unified five-year sentence with a two-year minimum on April 21, 2016.
Barry filed an I.C.R. 35 motion for reduction of sentence 119 days after judgment (one day before the 120-day deadline).
At an initial Rule 35 hearing the court granted a continuance to allow Barry to seek entry into mental health court; at the rescheduled hearing Barry sought further continuances (mental health court review and Barry’s telephonic attendance), which the court denied but allowed counsel to offer proof of Barry’s testimony.
The district court denied the Rule 35 motion, finding the violent nature of the offense and protection of society justified incarceration; Barry appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court abused its discretion by denying continuance of the Rule 35 hearing	Denial was proper to avoid unreasonable delay and preserve jurisdiction; defendant had opportunity to offer proof	Continuance was necessary for mental health court review and to allow Barry to appear telephonically; denial prejudiced Barry’s substantial rights	No abuse of discretion; court allowed offer of proof and denial would not have avoided delay
Whether the district court erred in denying the Rule 35 motion on the merits	Court properly considered alternative treatment but gave greater weight to protection of society given violent facts	Sentence was excessive; alternative (mental health court) would better address rehabilitation	No error: Rule 35 is discretionary; court reasonably concluded incarceration best protected society

State v. Ransom, 124 Idaho 703, 864 P.2d 149 (discretion to grant continuance rests with trial court)
State v. Matteson, 123 Idaho 622, 851 P.2d 336 (trial court must rule on Rule 35 within a reasonable time to retain jurisdiction)
State v. Cagle, 126 Idaho 794, 891 P.2d 1054 (appellate review of continuance denial requires showing prejudice)
State v. Knighton, 143 Idaho 318, 144 P.3d 23 (Rule 35 is plea for leniency addressed to court’s discretion)
State v. Allbee, 115 Idaho 845, 771 P.2d 66 (Rule 35 discretion and leniency principle)
State v. Huffman, 144 Idaho 201, 159 P.3d 838 (defendant must show sentence excessive in light of new information)
State v. Chapman, 121 Idaho 351, 825 P.2d 74 (timing requirement for Rule 35 rulings)
State v. Hedger, 115 Idaho 598, 768 P.2d 1331 (multi-tiered test for reviewing discretionary decisions)
State v. Moore, 78 Idaho 359, 304 P.2d 1101 (primary sentencing consideration is protection of society)