State v. Clements
218 P.3d 1143
Idaho
2009
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*1 P.3d 1143 Idaho, Plaintiff-Appellant- STATE Respondent,

Cross CLEMENTS, Defendant-

Michael Edwin Appellant.

Respondent-Cross

No. 35665. Idaho,

Supreme Court

Boise, August 2009 Term.

Oct.

district court authority lacked to consider the underlying facts of in determining the case that Clements’s attempted sentence for sec- ond-degree murder Clements petitioned this Court for review. We find court lacked Rule 35 to examine the underlying of Clements’s case.

I. FACTUAL AND PROCEDURAL

BACKGROUND Clements shot Johnson and Oakes, and Johnson died as a result of the shooting. The charged Clements with Wasden, Hon. Lawrence G. Attorney Gen- first-degree murder with a firearm enhance- eral, Boise, appellant. for Kenneth K. Jor- Johnson, ment for the death of attempted gensen, General, Deputy Attorney argued. first-degree murder with a firearm enhance- Oakes, ment shooting for the burgla- of and Molly Huskey, J. Appellate Idaho Public ry. Clements entered plea into a Defender, Boise, bargain respondent. for Diane where, in exchange guilty for his Walker, pleas to the Deputy Appellate Defender, Public charges reduced second-degree argued. murder with a firearm enhancement and attempted second-degree murder awith firearm en- BURDICK, Justice. hancement, the State burglary dismissed the This shooting case arises out the 1994 charge felony and a intimidating a witness Mary death of Ellen shooting Johnson and charge separate from a case and recom- Lori Respondent Anne Oakes. Michael Ed- mended concurrent sentences. The district pled win guilty second-degree Clements court sentenced Clements to life with fifteen murder with a firearm enhancement for the years fixed for second-degree plus murder death of attempted Johnson and second-de- years fifteen for enhancement, the firearm gree murder with a firearm enhancement for years years fifteen with ten for fixed shooting of Oakes. The district court attempted second-degree murder plus five sentenced years Clements to life with fifteen years enhancement, for the firearm with second-degree fixed for plus murder fifteen credit for time appealed. served. Clements years enhancement, for the firearm and fif- On October Ap- the Idaho Court of years years teen with ten attempted fixed for peals judgment affirmed Clements’s of con- second-degree plus years murder five for the viction and unpublished opin- firearm enhancement. Approximately ten ion. later, years Clements filed an Idaho Criminal Approximately later, years May ten on motion, arguing Rule 35 illegally that he was pro Clements filed se Rule 35 motion weapon sentenced for two enhancements be- sentence. The basis shootings cause both arose from the same was that he illegally § indivisible course of conduct under I.C. 19- sentenced for two firearm 2520E. The enhancements be- district court reversed Clem- cause shootings judgment ents’s arose from the same conviction indivisible course of second-degree conduct. murder with a Code firearm weapons enhancement and Idaho’s resentenced him to enhancement years fixed, statute, 19-2520E, fifteen with ten with limited credit for time appealed provides served. The in pertinent part: “[A]ny person reversed, of Appeals Court holding that the convicted two or more substantive [I.C, 19-2520], of the trial directly reviews the decision crimes Bishop, 146 court.” State indivisi- of the same arose out which crimes conduct, may only subject ble course *3 penalty.” was Clements one enhanced Rule 35 is a narrow Idaho Criminal Rule 35 for his

appointed counsel an trial court to correct rule that allows a argument. After heard the district court time, any a illegal at or correct sentence transcript preliminary the the of reviewing illegal an manner within imposed in sentence September hearing held on Farwell, days. State shot that Clements determined district court (2007); I.C.R. 35. and, there- rapid succession victims in both illegal “Generally, a sentence whether of the same indi- fore, “arose out the crimes illegal imposed in an manner was whether The district court conduct.” course of visible law, exercise question a of over which we one of Clem- once it vacated determined that Farwell, at free review.” sentences, it to vacate had no reason ents’s P.3d at 400. The district remaining legal sentence. Rule 35 motion granted court Clements’s judgment of conviction

part and vacated his III. ANALYSIS second-degree attempted sentence for On asserts that the dis- appeal, with the firearm enhancement. On murder court con- under Rule 35 trict court lacked September hearing underlying for the facts of Clem- to examine ducted another his determining attempted second-degree murder. ents’s case count of attempted years original enhanced sentence resentenced fifteen Clements was fixed, given second-degree illegal. The credit for murder was with ten and was question before this is whether Court time served. scope permitted under Rule 35 of review asserting that the dis- appealed, The State underlying court to review authority to examine trict court lacked crimes determin- facts of Clements’s before case in order underlying facts Clements’s illegal. ing that order his sentence original whether his enhanced determine issue, this we must first deter- to resolve second-degree mur- sentence for “illegal mine what constitutes an sentence” a illegal. pro filed se der was Clements under Rule 35. arguing the district court cross-appeal, both of his sentences should have invalidated A. A trial court cannot examine finding imposition that the two underlying a which crime to illegal. Clem- weapons enhancements was guilty pled to deter- the defendant appointed public defender for his ents was “illegal if the sentence is an mine appeal. May the Idaho Court On sentence” under Rule 35. Appeals the district court’s or- reversed der, holding that district court lacked au- provides, in Criminal Rule 35 thority facts of to examine may part: “The court correct pertinent concluding that his Clements’s case before any may correct time and granted This Court in an ille imposed that has been a sentence petition for We reverse review. provided herein gal manner within the time the district court’s order and remand. The term reduction of sentence.” for the defined under Rule sentence” is not court’s decision turns 35. “Where lower

II. STANDARD OF REVIEW rule, this of a criminal interpretation on the Cas the Court exercises free review.” case from Court “On review tro, consider Appeals, gives this Court due (2008). decision, Appeals’ but ation Court adopted

Idaho Criminal Rule was from can be determined from the face of the rec- Federal Rule of Criminal Procedure ord. Id. originally may read: “The court cor- Supreme The Indiana similarly Court held rect sentence at time and evidentiary that an inquiry permitted is not imposed a sentence in an man- defendant’s motion to correct an “erro- ner within the time herein for the sentence,” neous under Indiana Code 35- reduction of sentence.” Fed.R.Crim.P. 35 38-1-15. Robinson v. 805 N.E.2d “[Federal Rule Criminal Proce- (Ind.2004). Supreme Indiana Court dure of existing 35] ‘was codification law *4 stated: any and was intended to remove doubt creat- by

ed When of sentencing the decision in claims Mayer, United v. errors re- States quire 55, 67, 16, 18, consideration of 235 U.S. 35 matters S.Ct. 59 outside the L.Ed. 129 [135] [(1914)], as to the jurisdiction of a Dis- face sentencing judgment, they are best promptly addressed on trict Court direct illegal appeal to correct an sentence after post-conviction and thereafter via expiration of the relief term at which it was proceedings applicable. where States, Use of the entered.’” Hill v. United 368 U.S. statutory motion to 8, sentence 430 n. 82 S.Ct. 472 n. 7 L.Ed.2d should narrowly thus be (1962) confined 422 to claims n. 8 (quoting v. United Heflin apparent from the States, sentencing face of the 415, 422, 451, 455, 358 U.S. 79 S.Ct. 3 judgment, and the “facially erroneous” (Stewart, J., L.Ed.2d con- prerequisite should strictly henceforth be curring)). The Supreme United States applied, Jones, notwithstanding Reffett, explained Court has that the function of Fed. and Mitchell. We hold that a R.Crim.P. 35 is narrow: “[A]s the Rule’s therefore may to correct only sentence be language clear, history make the narrow to used correct sentencing errors that are function of Rule 35 is permit correction at clear judgment impos- any sentence, illegal time of an from not face of to re- ing light the sentence statutory examine occurring errors at the trial or other authority. require Claims that consider- proceedings prior imposition to the of sen- proceedings before, ation during, or Hill, tence.” 368 U.S. at 82 S.Ct. at presented trial not by way be 7 at 422. L.Ed.2d a motion to correct sentence. A jurisdictions number of state court have added). (emphasis sum, Id. In the Indiana narrowed of a review motion to correct an Supreme employs “facially Court a errone- illegal sentence, concluding that the determi ous” standard to determine sen- nation of illegal whether a sentence is tence is purpose legal question, motion is a permit does not an evidentiary inquiry. For Likewise, Wyoming Supreme Court example, Supreme the Florida Court ad has limited the “illegal definition of sentence” dressed whether an unsworn al motion that statutory limits, “one that imposes exceeds leged a sentencing requested error and a multiple imprisonment terms of same factual determination of the number of crimi offense, or otherwise violates constitutions or episodes nal actually “illegal” alleged an sen State, the law.” Brown tence that could at resolved time. (Wyo.2004). This definition is akin to the Callaway, (Fla. 658 So.2d United Supreme States Court’s definition of 1995), receded grounds by on other “illegal States, sentence” Hill v. United (Fla.1999). Dixon v. 730 So.2d 265 368 U.S. S.Ct. Supreme Florida Court limited the defi (1962), which, L.Ed.2d as noted “illegal nition of only above, sentence” to include sentences, on correcting illegal focuses “those issues that can be resolved reexamining pri errors from proceedings as a evidentiary Brown, matter of law without an sentencing. or to Wyoming determination,” i.e. sentencing Supreme issues that Court held that determina- “[t]he filed a Rule 35 defendant is made a sentence

tion of whether district court. Id. denied authorizing statute by reference ar- appeal, the is, 1056. On defendant P.3d at provisions applicable constitutional gued his sentence was because statutory interpreta- therefore, a matter of impose court lacked Therefore, Brown, tion.” single enhancement to his more than one of whether Wyoming the determination battery. aggravated offense for substantive “illegal sentence” is constitutes the merits Although the Court addressed Id. require an evi- does not question that legal claim, doing so neither of the defendant’s dentiary hearing. anything court reviewed nor the district concerning beyond public records the basic Therefore, term sentence” sentence, and the statuto- conviction and narrowly interpreted as Rule 35 is ry Id. at language of the enhancements. from the face of the words, in Kerri- In other 141 P.3d at 1057. ques record, i.e., significant not involve does required reexamine gan neither court was evidentiary require an hear of fact or *5 tions surrounding the assault underlying the is harmonious with ing. interpretation This battery the defen- to determine whether recently As this Court current Idaho law. illegal. dant’s sentence was Farwell, 144 Idaho in noted (2007), a “narrow Rule 35 is 170 P.3d 400 Furthermore, Clements’s case is illegal Because an rule.” Kerrigan. The from defen distinguishable time, the con corrected only pled guilty aggra to Kerrigan dant in uphold by Rule 35 should be limited to ferred guilty battery, pled Clements vated whereas a finality judgments. Rule 35 is not of the underlying and the substantive crimes to reexamine the facts un designed vehicle argues Clements firearm enhancements. derlying to determine whether the ease irrelevant because he did not that this fact is rather, only ap illegal; the rule is specifically admit that both crimes arose out category of in which to a narrow eases plies parties of conduct and the of divisible courses penalty simply that imposes is the sentence representa that there were no understood law or where new evidence authorized agreement. tions of the written outside original that the sentence was tends to show However, it established that ‘“[a] is well Arthur, State v. 145 Idaho excessive. See guilty, voluntarily and plea valid of under (2008). P.3d given, non-jurisdictional all standingly waives reasonably argues follows Clements that defenses, constitutional defects ” in opinion from this Court’s State Kerri- statutory, prior proceedings.’ in State v. (2006), gan, 143 141 P.3d 1054 Al-Kotrani, assessing justified is that the district court (2005) (quoting Clark v.

the facts of his case to determine (1969)). As the P.2d illegal if a firearm enhancement brief, Clements also points out its Kerrigan, pled the defendant Rule 35. the crimes specifically did not admit battery shooting a guilty aggravated to self-defense, yet not committed in the were forty-five officer and was sentenced police plea bargain asserting him from prohibits 141 P.3d at 1055. years. By Id. stage proceedings. defense at this comprised of fif- defendant’s sentence pleading guilty enhance to both firearm years aggravated battery, plus a ments, statutory, teen for the fact- Clements waived the § 18- year attempt enhancement under I.C. fifteen defense that the murder based battery upon the same indivisible because ed murder arose out of § officer, 19-2520E. plus year fifteen of conduct under I.C. law enforcement course Therefore, Kerrigan if war even firearm enhancement under I.C. See id. underlying facts to de Id. at 141 P.3d at 1055-56. ranted review holding illegal, if sentence is sentencing, termine More than ten inapplicable pled guilty since argues Clements Clements implicit in the enhancements, thereby waiving both firearm Court’s decisions where it has discussed I.C. findings rely factual he now wishes understanding 19-2520E is the if upon to reexamine his sentences. imposes multiple district court enhancements arising offenses out of the same indivisi- Therefore, interpretation we hold that the conduct, ble of course then the sentence is sentence” under Rule 35 is limited argues Clements that because a Rule illegal to sentences that are from the face 35 motion is the appropriate mechanism to record, i.e., those that do not sentences challenge sentence, review the significant questions involve of fact nor an underlying facts of necessary the case is evidentiary hearing to determine their ille- determine whether the crimes arose out of gality. the same indivisible course conduct. How- ever, prior cases where this Court has B. Clements’s sentence is not applied 19-2520E, the factual issue from the face record. regarding divisibility of conduct for the purpose weapons enhancement was either Next, in applying the standard set appeal, raised on direct made before the above, forth we determine that Clements’s defendant’s Rule 35 or was not nec- sentence is not the face essary to appeal. resolve the See State v. record. The basis of Clements’s Rule 35 Johns, illegally motion is that he was sentenced for *6 (1987) (defendant 1336 challenging on direct two firearm enhancements both since shoot appeal the trial court’s ings conclusion that arose from the the same indivisible course conduct concerning § the conduct under I.C. murder was 19-2520E. Idaho divisible § from Code the conduct provides pertinent part constituting 19-2520E robbery, the (2) “any person that convicted of upon two or more was based the evidence in the record); § substantive [I.C. crimes for in 632, 19- v. Searcy, State 118 Idaho 2520], which crimes arose (1990) out of the same 914, 916, 798 P.2d 920 (holding conduct, may indivisible course of only be the district properly granted court the (1) subject penalty.” to one enhanced “Th[e] defendant’s Rule 35 challenging two statute, by wording, its limits the otherwise firearm enhancements for murder and rob- mandatory duty of the district court to en bery jury because the found the defendant ‘multiple’ § hance sentences under I.C. 19- while committing robbery); killed the State Johns, 2520.” v. 112 State Idaho McLeskey, 691, 696-97, v. 138 Idaho 69 P.3d (1987). 1327, 1336 736 P.2d (2003) (holding 116-17 that the district dismissing court erred in the firearm en- Here, the district court’s determination respect hancement with burglary that the two crimes which Clements was charge prior to trial under I.C. 19-2520E second-degree murder and at- convicted — only prohibits because the statute imposing tempted second-degree murder —arose out of more than one penalty enhanced where a the same indivisible course of conduct awas person is convicted of two or more substan- significant finding factual that the court was tive crimes that arose out of the same indivis- only able to make after reviewing testimony ible course of conduct prohibit and does not id.; from preliminary hearing. See see charging more than one penalty enhanced Searcy, also State v. 798 even if the charged crimes all arose out of (1990); P.2d McLeskey, 920 State v. conduct); the same 691, 696-98, indivisible course of Idaho 116-18 P.3d (2003); Kerrigan, Custodio, v. Idaho 141 P.3d 1054 State v. (holding that the defendant’s (Ct.App.2001). sentence illegal, not Clements himself was but it nor concedes that it was a fac- neither the district required tual court Accordingly, determination. Clements’s make a factual deter- sentence from the anything beyond face of the mination or review the de- record. judgment fendant’s of conviction and the enhancements). Finally, de- that was vacated. we language of the

statutory argument address Clements’s cline to Here, regarding the divisi- factual issue failing to vacate district court erred 19- conduct under I.C. bility of Clements’s his sentences. for the first time both was addressed 2520E filed which was Rule Clements’s years after he was sen- approximately ten EISMANN and Justices J. Chief Justice legal 35 is limited to Because I.C.R.

tenced. JONES, concur. and W. JONES surrounding sen- the defendant’s questions divisibility tence, of the factual issue J., HORTON, concurring. purposes 19-2520E conduct However, I join in I the Court’s decision. face of the record from the apparent must impact separately to address the of this write therefore, and, determined before defen- from on line of decisions Court’s decision 35 motion. dant files a Rule Appeals. the Idaho Court reexamining By majority quotes decision determine that Clem this case to crimes in Supreme Court’s decision Robin- Indiana illegal, the court ents’s (Ind.2004). v. 805 N.E.2d 783 son of Rule scope “narrow” 35. See exceeded the Robinson, sentence” the claim of 732, 735, 170 Farwell, 144 P.3d prior to credit for time served related (2007). By exceeding scope sentencing time” corresponding “credit scope court exceeded Rule The Indiana court held under Indiana law. Jakoski, authority. See State of its “may the motion correct sentence only errors be used to Therefore, court’s we reverse the district judgment that are clear from face vacating judgment of con order upon jurispru- impact ...” The this State’s sentence for second-

viction and Appeals long is this: our Court has dence enhancement, degree with a firearm murder *7 for held that an incorrect calculation of credit court the matter to district and remand time served is an sentence which judgment of to conviction reinstate any at time under I.C.R. 35. be corrected sentence that was vacated. Appeals suggested Court of first this its the district court exceeded au- Because Hale, v. 779 P.2d view State thority examining the facts of by case, court (Ct.App.1989). that determining that his sen- Clements’s case expressly the timeliness of did not address illegal, we to address tence was decline claim, as it concluded that Hale was Hale’s argument that the district court Clements’s sought. to he not entitled the credit which failing to of his erred vacate both sen- However, Rodriguez, v. 119 Idaho in State tences. court (Ct.App.1991), 811 P.2d 505 expressly a basis held Rule 35 IV. CONCLUSION challenge legality a sentence upon a claim that trial court incor- based above, we hold For the reasons set forth prior rectly calculated credit for time served authority court lacked under district sentencing: to un- Criminal Rule 35 to examine the before con- the state is derlying facts of Clements’s case The second issue raised illegal. Rodriguez’ Rule 35 motion was cluding that Clements’s sentence was timely Rodriguez filed the motion Accordingly, we reverse the district court’s filed. judgment was vacating judgment of con- two-and-one-half order to Rule imposed. and sentence second- Pursuant viction an authority court has to correct degree murder with a firearm enhancement Rodriguez’ time. court remand the matter to (although Rule 35 states colorable judgment of conviction and to reinstate the unmeritorious) later, as claim we discuss will avoid the undesirable side-effect of to- day’s imposed upon the sentence him is decision. This Court should amend adopt separate He I.C.R. 35 asserts that the sentence rule order to expressly grant judges comply trial because does with I.C. correct sentences involving language 18-309. The erroneous I.C. 18-309 computation of credit for prior time served mandatory, requires that in sentenc- sentencing. defendant, ing a criminal give judge appropriate pre- credit for

judgment incarceration. Law v. Rasmus-

sen, 455, 456-57, (1983). Thus,

68-69 a claim that such given properly credit was not ais claim 218 P.3d 1150 illegal, that the sentence is the sen- since VREEKEN, Plaintiff, Christianne imposed tence ivould been have in viola- tion 18-30. Id. at added, (emphasis P.2d footnote ENGINEERING, B.V., LOCKWOOD omitted). corporation; Netherlands Gerbroeders Meijer Belegging, B.V., a Netherlands Appeals The Court of has consistently ap- corporation; Vreeken, Jan an individu- plied subsequent this rule in e.g., eases. See al, Gold, individual, and Thomas R. an McCarthy, State v. Defendants. (Ct.App.2008). This Court yet has specifically address this line of authority. Gold, individual, Thomas R. Cross However, computation of time served Claimant-Respondent, necessarily inquiry beyond involves a factual requires “the face of the record” as it consid- jail booking eration of and release records. B.V., Engineering, Lockwood a Nether- Thus, today’s effectively corporation, decision overrules lands Meijer Gerbroeders Rodriguez progeny. Belegging, B.V., and its corpora- a Netherlands tion, Meijer Beleg- Gerbroeders a/k/a Although I agree with the Court’s reason- B.V., ging, Vreeken, and Jan an individ- ing today, and the decision we issue there are ual, Defendants-Appellants. Cross good judges reasons for power to have the correct erroneous credit Gold, calculations. The individual, Thomas R. *8 Richard L. holding judges Gold, are without individual, Packag and Tomac inquiries conduct limited factual as ing, Inc., corporation, a Massachusetts presentence duration of incarceration and to Party Cross Claimants-Third Plaintiffs- correct them sentences means Respondents, that inmates will have to seek way relief of an alterna- legal tive Although avenue. an incorrect cal- Packing Corporation, Lockwood a Dela presentence culation of may credit be corporation ("LPC"), ware and Lock grounds relief, for habeas inmates well Packing Corporation Idaho, wood precluded asserting they are ("LPC corporation Idaho"), Third being unlawfully confined until the time that Party Defendants-Appellants. them confinement becomes unlawful. In mis- demeanor felony cases and cases where the No. 34817. fixed, entire unified practical sentence is Supreme Idaho, Court of effect inmates will serve time in ex- Boise, May 2009 Term. they cess of that legally required are to serve. Oct. view, my simple this Court has

straightforward remedy available to it that