Alаn Lee Brandt pled guilty to charges of grand theft, grand theft by disposing of stolen property, and second degree burglаry. He was sentenced to twelve years indeterminate on each of the grand theft convictions and five yeаrs indeterminate on the burglary conviction, with all sentences to run concurrently. The sentences were upheld by thе Court of Appeals.
State v. Brandt,
After he had entered his plea, but before sentence had been imposed, Brandt escaped from jail. Upon his recapture he was charged with escape, injury to jail property, assault, аnd robbery. A jury convicted him on these charges. In addition the jury found Brandt guilty of being a persistent violator based upon the earlier theft and burglary convictions.
As a result of the persistent violator finding, Brandt was sentenced to twenty years for the escape. The judge also imposed sentences of two years for injury to jail property, ninety days fоr assault and ten years for robbery. The sentences for escape, jail injury, and assault were to be served concurrently with each other but consecutive to the sentences imposed for the earlier theft and burglary сonvictions. The robbery sentence was to be served consecutively to the sentence for escape. Thus the total possible sentence was forty-two years indeterminate.
Brandt appealed the finding of persistent violator status and asserted that the sentences imposed by the trial court were harsh and excessive. The Court of Appeals affirmed both the application of the persistent violator statute and the sentenсes.
State v. Brandt,
On July 27, 1988, four years after his original conviction, Brandt filed two petitions for post-conviction relief. Brandt asserted numerous arguments that he had previously made on appeal, and in addition alleged that new evidence whiсh was not available at prior proceedings, namely, evidence of his change of attitude and rehabilitation, justified the reduction of his sentences. The district court held that it would not, and could not, reconsider issues already resolved on appeal. It also held *352 that it did not have jurisdiction to reduce Brandt’s sentence under either I.C.R. 35, because of the rule's 120 day limitation, or I.C. § 19-4901(a)(4), because the statute permits only vacation of sentence, not reduction. Brandt appeals from these rulings.
I. PERSISTENT VIOLATOR CONVICTION
The statutory constraint on presenting claims and issues in post-conviction proceedings is not as broad as the case law doctrine of res judicata.
Parsons v. State,
The question of whether the persistent violator statute (I.C. § 19-2514) was appropriately applied under the circumstances of this case was raised by Brandt in the context of his direсt appeal, and the issue was thoroughly discussed by the Court of Appeals.
State v. Brandt,
II. REDUCTION OF SENTENCE
The triаl court was also correct in asserting that it had no jurisdiction to reduce Brandt’s sentence. A claim that a sentence is unduly harsh affords no basis for post-conviction relief if the sentence is otherwise legal.
Williams v. State,
Neither does I.C.R. 35 provide the trial court with jurisdiction to grant the relief Brandt has rеquested. It is true that evidence concerning a defendant’s rehabilitative progress can be considered in thе context of a Rule 35 motion.
State v. Rundle,
The district court committed no error, and we affirm its decision. In doing so, however, we join with the trial court in observing that “[sjhould [Brandt’s rehabilitative] рrogress and improvement in attitude continue over the next several years, *353 this court believes that an adjustment by the Commission for Pardons and Parole of Mr. Brandt’s overall sentence would be indicated.” Tr. at 88.