State v. Brunet

• Decision Date: 13 November 2013
• Docket Number: No. 39550.,39550.
• Citation: 316 P.3d 640,155 Idaho 724
• Court: Idaho Supreme Court
• Parties: STATE of Idaho, Plaintiff–Respondent, v. Jose Esteban BRUNET, Defendant–Appellant.

155 Idaho 724

316 P.3d 640

STATE of Idaho, Plaintiff–Respondent,

v.Jose Esteban BRUNET, Defendant–Appellant.

No. 39550.

Supreme Court of Idaho, Boise, August 2013 Term.

Nov. 13, 2013.

Rehearing Denied Jan. 29, 2014.

Sara B. Thomas, Idaho State Appellate Public Defender's Office, Boise, for appellant. Shawn F. Wilkerson Deputy Appellate Public Defender argued.

Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Mark W. Olson, Deputy Attorney General argued.

BURDICK, Chief Justice.

Jose Esteban Brunet appealed the Ada County district court's order relinquishing jurisdiction and denying his oral motion requesting leniency pursuant to Rule 35 of the Idaho Criminal Rules. Appellant also argued that this Court's order denying his motion to augment the appellate record violated his constitutional rights to due process and equal protection, and would deny him effective assistance of counsel on appeal. We affirm the district court's order and hold that Brunet failed to show that the denial of his motion to augment the appellate record with additional transcripts violated his constitutional rights.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 18, 2010, Brunet was at the victim's home drinking and smoking marijuana while already under the influence of prescription muscle relaxers. When the victim left the room, Brunet noticed the victim's checkbook and took two checks from it. Brunet later forged both checks, which were eventually cashed for $300.00 each. During an investigation, Brunet admitted to police that he stole and forged the checks and then shared in the proceeds.

The Ada County Prosecuting Attorney charged Brunet with grand theft and forgery. At a hearing on November 12, 2010, Brunet pleaded guilty to grand theft, and the State dismissed the forgery charge pursuant to a plea agreement. On December 23, 2010, the district court sentenced Brunet to an aggregate term of five years, with the first two years fixed; however, the court suspended the sentence and placed Brunet on probation for five years. The court incorporated probation into Brunet's sentence specifically to provide him with "some tools and some resources" to effect personal change in light of his difficult upbringing.

Approximately three months after being placed on probation, Brunet was cited for petit theft. In April of 2011, Brunet was charged with a total of seven probation violations. On May 13, 2011, Brunet admitted to three of the charges and, in exchange, the remaining four were dismissed. Specifically, Brunet admitted to violating his probation by committing the crime of petit theft, failing to notify his supervising officer of that charge, and failing to make himself available for supervision and program participation as instructed by his supervising officer. On May 20, 2011, the district court revoked Brunet's probation and imposed his sentence, but retained jurisdiction.

On December 23, 2011, exactly one year from the date of the original sentencing, the district court held a retained jurisdiction review hearing. There, the district court reviewed what it regarded as a "very negative rider report," which recommended that the court relinquish jurisdiction. The court noted at the hearing that Brunet had not completed any of his programming while on the rider. In preparation for the hearing, the judge reviewed the report from the institution, his own notes from the prior sentencing hearings, and some of the original Presentence Investigation (PSI) materials. At the conclusion of the rider review hearing, the district court relinquished jurisdiction. The court also denied Brunet's oral Rule 35 motion for leniency made during that review hearing and instead ordered that the defendant serve the sentence originally imposed by the May 25, 2011 Judgment and Conviction.

Brunet filed a timely appeal of the district court's order on January 4, 2012. On March 8, 2012, the clerk filed a Certificate of Service for the appellate record. Brunet's brief was originally due to the Court by May 29, 2012. On that date, Brunet filed an extension, and an extended deadline for submission of his brief was set for July 3, 2012. On that second due date, Brunet again did not file his brief. Instead, he moved to suspend the briefing schedule and augment the record with two as-yet unprepared transcripts of hearings associated with his underlying grand theft conviction. Specifically, Brunet requested transcripts of his November 12, 2010 plea hearing and his December 23, 2010 sentencing hearing. This motion, which was filed nearly six months after his appeal was filed, requested that these transcripts be prepared at public expense. The State objected to the motion on July 10, 2012, and this Court denied the motion on July 13, 2012. At that time, this Court again extended the deadline for the submission of Brunet's brief, this time to August 17, 2012. Brunet complied with the new deadline.

II. ISSUES ON APPEAL

1. Whether the Idaho Supreme Court violated Brunet's constitutional rights when it denied his motion to augment the appellate record.

2. Whether the district court abused its discretion when it relinquished jurisdiction.

3. Whether the district court abused its discretion when it denied Brunet's oral I.C.R. Rule 35 motion requesting leniency.

III. ANALYSIS

A. The Idaho Supreme Court did not violate Brunet's constitutional rights when it denied his motion to augment the appellate record.

Brunet argued on appeal that by failing to provide him with free copies of the requested transcripts, this Court denied his rights to due process of law and equal protection guaranteed by both the Idaho Constitution and the United States Constitution, which further denied him effective assistance of counsel on appeal. The State argued that Brunet failed to show that the record on appeal was not sufficient. We agree.

1. This Court did not deny Brunet due process of law or equal protection by refusing to order that transcripts be created at public expense for incorporation into the record on appeal.

As stated by this Court in State v. Strand:

Both equal protection and due process emphasize the central aim of our entire judicial system—all people charged with crime must, so far as the law is concerned, stand on an equality before the bar of justice in every American court. The State is not required, however, to purchase a stenographer's transcript in every case in which a defendant cannot buy one, nor is the State required to provide a transcript of all proceedings held below. The fact that an appellant with funds may choose to waste his money by unnecessarily including in the record all of the transcripts does not mean that the State must waste its funds by providing what is unnecessary for adequate appellate review. The State is only required to provide an indigent defendant a record on appeal that is sufficient for adequate appellate review of the errors alleged regarding the proceedings below.

137 Idaho 457, 462, 50 P.3d 472, 477 (2002) (internal quotations and citations omitted).

When an indigent defendant requests that transcripts be created and incorporated into a record on appeal, the grounds of the appeal must make out a colorable need for the additional transcripts. Mayer v. City of Chicago, 404 U.S. 189, 195, 92 S.Ct. 410, 415, 30 L.Ed.2d 372, 378–79 (1971). In "legal usage, the word ‘color,’ as in ‘color of authority,’ ‘color of law,’ ‘color of office,’ ‘color of title,’ and ‘colorable,’ suggests a kind of holding out and means ‘appearance, semblance, or simulacrum,’ but not necessarily the reality." Adickes v. S.H. Kress & Co., 398 U.S. 144, 211, 90 S.Ct. 1598, 1631, 26 L.Ed.2d 142, 184–85 (1970) (Brennan, J. concurring in part and dissenting in part). For example, "[w]hat is color of title is matter of law, and when the facts exhibiting the title are shown, the court will determine whether they amount to color of title. But good faith in the party in claiming under such color, is purely a question of fact, to be found and settled as other facts in the cause." Wright v. Mattison, 59 U.S. 50, 59, 18 How. 50, 15 L.Ed. 280, 284 (1855). Like color of title, colorable need is a matter of law determined by the court based upon the facts exhibited. Brunet argued for the inclusion of the transcripts in order to provide a complete record; however, at no point did Brunet assert that the requested transcripts contained specific information relevant to his appeal. To the contrary, Brunet hypothesized that the lack of these transcripts could prevent him from determining whether there were additional issues to raise, or whether there was factual information contained in the transcripts that might relate to his arguments. Brunet essentially articulated a desire to procure the transcripts to then search the transcripts for a reason to request and incorporate the transcripts in the first place. In layman's terms, Brunet hoped to engage in a "fishing expedition" at taxpayer expense. Mere speculation or hope that something exists does not amount to the appearance or semblance of specific information necessary to establish a colorable need.

Brunet requested transcripts of his original plea hearing and his original sentencing, but he failed to demonstrate a colorable need for those requested transcripts in light of the contents of the existing record on appeal. The minutes of the original plea hearing show that Brunet pleaded guilty to the charge of grand theft, pursuant to a plea agreement, and the State dismissed a forgery charge. The PSI report prepared prior to sentencing, which Brunet did not object to at sentencing, recommended a ten-year sentence, with two years fixed. Under the terms of Brunet's plea agreement, as shown on the written Plea Agreement Advisory, the State agreed to recommend an eight-year sentence, with two years fixed but suspended. Brunet's attorney acknowledged and signed the State's recommendation on the plea advisory. Notwithstanding the ten years recommended by...