Recent Court Decisions in the First Judicial District


State of Idaho v. Brian Charles Bremmer, Case No. CRF 2009 25216, CRF 2010 758, District Court of the First Judicial District of the State of Idaho in and for the County of Kootenai

Bremmer was convicted and subsequently sentenced on June 22, 2009 for two separate crimes; Malicious Injury to Property and Possession of a Controlled Substance. For both crimes he was sentenced for two years fixed and an indeterminate time of 3 years for the Malicious Injury and 5 years for the Possession charge. The sentences were to run consecutively, for a total of 4 years fixed, at the end of which time Bremmer would be eligible for parole. However, if he were not able to rehabilitate in prison and be allowed parole, he could face an additional eight years, for a total of twelve years in prison due to his indeterminate sentence. Bremmer was also given a period of retained jurisdiction pursuant to I.C. 19-2601 for up to three hundred and sixty five days with a recommendation for the Therapeutic Community (TC) rider.

On June 24, 2010 Bremmer filed an I.R.C. 35 Motion, requesting that his sentence be reconsidered. He based his motion solely on a “…plea for leniency.” Bremmer requested a hearing on his Motion, which the Court denied.

“The decision whether to conduct a hearing on an I.C. 35 motion to reduce a legally imposed sentence is directed to the sound discretion of the District Court.”  The Court denied the Motion for the “…fact that the only reason listed in Bremmer’s I.C.R. 35 motion is a ‘plea for leniency,’ there is nothing that could be presented at a hearing that would be of benefit to the Court.”  The court went on to state “[a] hearing would only waste counsel and the Court’s time.”

“A motion to modify a sentence ‘shall be considered and determined by the court without the admission of addition testimony and without oral argument, unless otherwise ordered by the court in its discretion.’” I.C.R. 35. The Court in Bremmer stated that the defendant would need to show that a sentence was excessive in view of new or additional information presented with the Motion. “For a sentence to be considered ‘reasonable’ at the time of sentencing the court must consider the objectives of sentencing: whether confinement is necessary to accomplish the objective of protection of society and to achieve any or all of the related goals of deterrence, rehabilitation, or retribution applicable to the case. State v. Toolhill 103 Idaho (Ct.App 1982).

To illustrate the need for Bremmer to continue his sentence, the Court detailed the incidents that led to Bremmer’s arrests and subsequent convictions, including an extensive criminal background and his inability to rehabilitate or change his criminal activity. The Court then utilized the three elements of deterrence, rehabilitation and retribution set out in Toolhill in their analysis of Bremmer’s Motion and sentence and found that Bremmer’s sentences were reasonable.

The Court concluded that, “the sentences imposed on June 22, 2009, were and are appropriate sentences given Bremmer’s social and criminal history and the crimes for which sentence was imposed. A lesser sentence would depreciate the seriousness of Bremmer’s crimes. This Court concludes that the sentence was necessary for the protection of society and the deterrence of Bremmer and others. “



Barbara Smith v. Idaho State Liquor Division, Case No. CV 2010 145, First Judicial District of the State of Idaho in and for the County of Kootenai

In Barbara Smith v. Idaho State Liquor Division, Barbara Smith (“Smith”), pro se, appealed a decision by the Idaho State Liquor Division (“Division”) to terminate her employment due to poor performance. Smith appealed to the District Court on procedural grounds, stating that her letter to the State Division of Human Resources (DHR) appealing the termination was sent in a timely manner and thus she was not given an opportunity to appeal the decision. The District Court denied her appeal.

Smith was notified on October 8, 2009 by a Notice of Contemplated Action letter that she had until October 29, 2009 to respond to the allegations of poor performance. Smith responded on October 14, 2009. Smith was then sent a letter dated October 26, 2009 notifying her of her termination, stating that she had 35 days from the date of the letter to appeal the Division’s decision to the DHR.

Smith sent an appeal by mail on December 1, 2009, which was filed on December 2, 2009. However, “Because the date of filing was past the thirty-five day time period, Smith’s appeal was dismissed pursuant to DHR Rule 201.04, on December 8, 2009.”

I.C. 67-5316, which governed Smith’s appeal, includes any classified employee subject to a disciplinary dismissal and who has completed the departmental due process procedure. Appeals not filed timely are considered outside the agency’s jurisdiction and may be dismissed without motion, and such dismissals are final for the commission and may only then be appealed to the District Court.

The District Court may remand only upon three grounds: 1) that the findings of fact are not based on any substantial, competent evidence, 2) that the commission has acted without jurisdiction or in excess of its powers, or 3) that the findings of fact by the commission do not as a matter of law support the decision. I. C. 67-5318

In its decision denying remand in this case, the Court stated that because Smith had not raised the issue of an untimely appeal prior to bringing this action, she could not therefore raise it for the first time on appeal. The Court relied upon the fact the time to appeal to the DHR began on the date of the termination letter (October 26, 2009) and not when it was received by Smith (October 28, 2009). In addition, the Court stated that the thirty-five day period ended when the Idaho Personnel Commission received the letter (December 2, 2009) and not when Smith mailed it (October 1, 2009).   The Court followed the reasoning of Washington Water Power Co. v. Kootenai Environmental Alliance, 99 Idaho 875 (1979) and Obenchain v. McAlvain Construction, Inc. 143 Idaho 56 (2006) in making its decision.

The court in Washington outlined the statutory limits of administrative authorities, stating “[n]o jurisdiction exists if the statutory provisions are not met, and nothing is presumed in favor of an administrative authority’s jurisdiction.”  In Oberchain, a case similar to Smith, the Court stated that, “An argument regarding an untimely appeal must be made before bringing it on appeal” and “as a result, arguments raised for the first time on appeal will not be considered.”

The Court ruled that the appeal was appropriately dismissed because, due to Smith’s failure to follow the procedural rules in DHR 210.03, the case fell outside of the IPC’s jurisdiction.