               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 44487

STATE OF IDAHO,                                 )    2017 Unpublished Opinion No. 658
                                                )
       Plaintiff-Respondent,                    )    Filed: December 8, 2017
                                                )
v.                                              )    Karel A. Lehrman, Clerk
                                                )
BARRYNGTON EUGENE SEARCY,                       )    THIS IS AN UNPUBLISHED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,
       Fremont County. Hon. Gregory W. Moeller, District Judge.

       Order denying I.C.R. 35 motion, affirmed; order denying motion for court-
       appointed counsel, affirmed.

       Barryngton E. Searcy, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GRATTON, Chief Judge
       Barryngton Eugene Searcy appeals from the district court’s denial of his Idaho Criminal
Rule 35 motion and his motion for court-appointed counsel.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       In 1988, Searcy was found guilty by a jury of first degree murder and robbery. The
district court imposed a determinate life sentence without the possibility of parole for the murder
charge and a consecutive sentence of indeterminate life with ten years determinate for the
robbery charge. Additionally, Searcy received a ten-year enhancement for using a firearm
during the commission of those crimes. Thereafter, Searcy made three separate appeals, all of




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which involve issues related to his sentencing. In Searcy’s first appeal 1 in 1990, he claimed
Idaho’s lack of an insanity defense violated his constitutional rights and that the court abused its
sentencing discretion. The Idaho Supreme Court affirmed his conviction and sentences for
murder and robbery but vacated the dual sentence enhancements for use of a firearm and
remanded to the district court on only one enhancement. In Searcy’s second appeal 2 in 1991, he
addressed the issue of a lack of an insanity defense and also asserted that his sentences were
cruel and unusual. This Court held the first issue was addressed in his prior appeal and the
second issue could have been raised in the first appeal, but was not. Therefore, we declined to
address the merits of the argument. In Searcy’s third appeal 3 in 1993, he asserted that he should
be resentenced since the court’s oral pronouncement of his corrected sentence prevailed over the
subsequent written sentence, and the firearm enhancement was improperly ordered as
determinate. This Court rejected his first argument and directed that the sentencing judge
modify his sentence so the enhancement associated with the robbery conviction was for an
indeterminate term of ten years and would be served as an extension of the indeterminate life
sentence imposed for the robbery conviction.
       In 2016 Searcy filed a Rule 35 motion to correct an illegal sentence, a motion for court-
appointed counsel, and an I.C.R. 36 motion to correct the spelling of his name in the amended
judgment of conviction. The district court granted his Rule 36 motion; however, the court
denied his Rule 35 motion and his motion for court-appointed counsel. Searcy timely appeals.
                                                II.
                                           ANALYSIS
       On appeal, Searcy asserts that his conviction and sentence are illegal and should be
vacated. Pursuant to Rule 35, the district court may correct an illegal sentence at any time. In an
appeal from the denial of a motion under Rule 35 to correct an illegal sentence, the question of
whether the sentence imposed is illegal is a question of law freely reviewable by the appellate
court. State v. Josephson, 124 Idaho 286, 287, 858 P.2d 825, 826 (Ct. App. 1993); State v.
Rodriguez, 119 Idaho 895, 897, 811 P.2d 505, 507 (Ct. App. 1991).



1
       State v. Searcy, 118 Idaho 632, 798 P.2d 914 (1990).
2
       State v. Searcy, 120 Idaho 882, 820 P.2d 1239 (Ct. App. 1991).
3
       State v. Searcy, 124 Idaho 107, 856 P.2d 897 (Ct. App. 1993).
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       The district court correctly noted that Rule 35 is a narrow rule “intended to address the
nature of the sentence imposed, not the manner in which the trial was conducted.” The Idaho
Supreme Court has held that Rule 35 is:
       not a vehicle designed to reexamine the facts underlying the case to determine
       whether a sentence is illegal; rather, the rule only applies to a narrow category of
       cases in which the sentence imposes a penalty that is simply not authorized by law
       or where new evidence tends to show that the original sentence was excessive.
State v. Clements, 148 Idaho 82, 86, 218 P.3d 1143, 1147 (2009). Rule 35 inquiries must involve
only questions of law, and may not include significant factual determinations to resolve the
merits of a Rule 35 claim. State v. Wolfe, 158 Idaho 55, 65, 343 P.3d 497, 507 (2015).
       Searcy did not provide the court with any new evidence; therefore, his only means for
relief is to show that the sentence imposed is not authorized by law. On review, we conclude
that Searcy’s challenge is a collateral attack on the underlying conviction and was beyond the
scope of a Rule 35 motion. See Hill v. United States, 368 U.S. 424, 430 (1962); Housley v. State,
119 Idaho 885, 889, 811 P.2d 495, 499 (Ct. App. 1991). All of his arguments relate to alleged
procedural and evidentiary defects during his trial and sentencing that are required to be raised
on direct appeal.
       Searcy first argues the district court erred when not considering the merits of his claims
on the basis of res judicata. Res judicata prevents the litigation of causes of action which were
finally decided in a previous suit. Gubler By and Through Gubler v. Brydon, 125 Idaho 107,
110, 867 P.2d 981, 984 (1994). The review of a trial court’s ruling on whether an action is
barred by res judicata is a question of law over which this Court has de novo review. Ticor Title
Co. v. Stanion, 144 Idaho 119, 122, 157 P.2d 613, 616 (2007). The principles of res judicata
apply when a petitioner attempts to raise the same issues previously ruled upon on direct appeal
or in a subsequent petition for post-conviction relief. Knutsen v. State, 144 Idaho 433, 439, 163
P.3d 222, 228 (Ct. App. 2007). Additionally, res judicata bars claims in subsequent litigation
that should have been raised previously but were not. Aragon v. State, 114 Idaho 758, 766, 760
P.2d 1174, 1182 (1988).
       Searcy bases his argument that the district court erred when it reasoned that Searcy “has
offered no explanation as to why these defects were not--or could not have been--asserted in any
of his three prior appeals” when denying his motion. While Searcy is correct that a Rule 35
motion may be brought at any time, he disregards the court’s next sentence explaining, “despite


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his assertions to the contrary, Searcy’s motion fails to properly assert any claims establishing that
his sentence was ‘improper on its face,’ as Rule 35(a) clearly requires.” The issues raised by
Searcy are actually about his underlying conviction and the lawfulness of his conviction has been
raised and affirmed on prior appeals. Therefore, any current arguments related to his underlying
conviction, whether previously raised or not, are properly barred pursuant to res judicata. For
example, Searcy asserts his first degree murder conviction was obtained through an
unconstitutional presumption contained in the jury instructions.         He also alleges the jury
determined the murder occurred in the course of the robbery, and therefore his consecutive
sentences for murder and robbery are illegal. These are challenges to his conviction, not an
attempt to correct a sentence that is illegal on its face. As noted above, Rule 35 inquiries may
not include significant factual determinations. Wolfe, 158 Idaho at 65, 343 P.3d at 507. Because
the resolution of these issues would require factual inquiries, they are not properly brought
pursuant to a Rule 35 motion. Likewise, Searcy’s argument that his determinate life sentence is
illegal because the district court failed to find certain aggravating factors before imposing the
sentence would also require factual inquiries and, thus, is not properly brought on a Rule 35
motion. Finally, Searcy asserted the sentence enhancement for use of a firearm was improperly
corrected in his absence.      Because this argument addresses the procedural aspects of his
sentencing and not the imposition of an illegal sentence, it is also not properly brought pursuant
to a Rule 35 motion and was required to be made on direct appeal. Therefore, a Rule 35 motion
is not the correct mechanism to bring such claims and the district court and this Court lack
jurisdiction to consider the issues.
       Searcy also asserts the district court erred when denying his motion for court-appointed
counsel. If a post-conviction petitioner is unable to pay for the expenses of representation, the
trial court may appoint counsel to represent the petitioner in preparing the petition in the trial
court and on appeal. I.C. § 19-4904. The decision to grant or deny a request for court-appointed
counsel lies within the discretion of the district court. Grant v. State, 156 Idaho 598, 603, 329
P.3d 380, 385 (Ct. App. 2014). When a district court is presented with a request for appointed
counsel, the court must address this request before ruling on the substantive issues in the case.
Id.; Fox v. State, 129 Idaho 881, 885, 934 P.2d 947, 951 (Ct. App. 1997). The district court
abuses its discretion where it fails to determine whether a petitioner for post-conviction relief is



                                                 4
entitled to court-appointed counsel before denying the petition on the merits. Grant, 156 Idaho
at 603, 329 P.3d at 385.
       In determining whether to appoint counsel pursuant to I.C. § 19-4904, the district court
should determine if the petitioner is able to afford counsel and whether the situation is one in
which counsel should be appointed to assist the petitioner. Grant, 156 Idaho at 603, 329 P.3d at
385. In its analysis, the district court should consider that petitions filed by a pro se petitioner
may be conclusory and incomplete. Facts sufficient to state a claim may not be alleged because
they do not exist or because the pro se petitioner does not know the essential elements of a claim.
Id. Some claims are so patently frivolous that they could not be developed into viable claims
even with the assistance of counsel. Newman v. State, 140 Idaho 491, 493, 95 P.3d 642, 644 (Ct.
App. 2004). However, if a petitioner alleges facts that raise the possibility of a valid claim, the
district court should appoint counsel in order to give the petitioner an opportunity to work with
counsel and properly allege the necessary supporting facts. Grant, 156 Idaho at 603, 329 P.3d at
385.
       The district court found Searcy met the indigency requirement for court-appointed
counsel. However, the reasons set forth above support the holding that the district court did not
abuse its discretion when denying Searcy’s motion for court-appointed counsel. The trial court
may deny a motion for appointed counsel in a Rule 35 proceeding if it finds that the motion “is
not a proceeding that a reasonable person with adequate means would be willing to bring at his
own expense and is therefore a frivolous proceeding.” State v. Wade, 125 Idaho 522, 523, 873
P.2d 167, 168 (Ct. App. 1994); see also I.C. § 19-852(b)(3). As noted, Searcy’s arguments relate
to alleged procedural and evidentiary defects and fail to allege that the sentence imposed is not
authorized by law. Because his challenges are a collateral attack on the underlying conviction
and beyond the scope of a Rule 35 motion, the threshold for denying court-appointed counsel at
this stage has been met.
        This Court affirms the thorough and well-reasoned decision of the district court. It
correctly noted that, “as well briefed and clearly articulated as Searcy’s claims for relief under
Rule 35(a) may be, they are merely a reiteration of arguments that either were raised, or should
have been raised, in Searcy’s three earlier appeals.” Additionally, the district court did not abuse
its discretion when denying Searcy’s motion for court-appointed counsel.



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                                               III.
                                        CONCLUSION
          This Court affirms the district court’s denial of Searcy’s Rule 35 motion because his
challenge is a collateral attack on the underlying conviction and beyond the scope of a Rule 35
motion.     We also affirm the district court’s denial of court-appointed counsel because no
reasonable person with adequate means would be willing to pay an attorney to bring such an
action.
          Judge GUTIERREZ and Judge HUSKEY CONCUR.




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