Case Information
*1 IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket 41645
STATE OF IDAHO, ) ) Boise, August 2014 Term
Plaintiff-Respondent, ) ) 2014 Opinion No. 115 v. ) ) Filed: October 29, 2014 GARY L. SCHALL, ) ) Stephen W. Kenyon, Clerk Defendant-Appellant. ) _______________________________________ )
Appeal from the District Court of the Sixth Judicial District of the State of Idaho, Bannock County. Hon. Stephen Dunn, District Judge.
The decision of the district court is affirmed.
Sara B. Thomas, State Appellate Public Defender, Boise, for appellant. Shawn F. Wilkerson argued.
Honorable Lawrence G. Wasden, Attorney General, Boise, for respondent. Daphne J. Huang argued.
_____________________
J. JONES, Justice
Gary Schall was arrested for driving under the influence of alcohol. Schall had two prior convictions for driving under the influence within the previous ten years, one of which stemmed from a 2004 arrest in Wyoming. As a result of his prior convictions, the State enhanced his DUI charge to a felony pursuant to Idaho Code section 18-8005(6). At Schall’s preliminary hearing, the magistrate found that there was probable cause to bind the case over to district court. Schall filed a motion to dismiss in the district court, arguing that the State had the burden at the preliminary hearing to provide probable cause to believe his Wyoming DUI conviction was for a “substantially conforming foreign criminal violation,” that the State failed to meet that burden, and that the Wyoming conviction was not in fact a substantially conforming violation. The district court denied Schall’s motion, finding that the State met its burden at the preliminary hearing and that the Wyoming statute substantially conformed to Idaho’s DUI statute. Schall appealed the district court’s denial of his motion to dismiss and the Court of Appeals reversed. *2 The State then petitioned this Court for review, which we granted.
I.
FACTUAL AND PROCEDURAL HISTORY
On August 8, 2011, Gary Schall was arrested for driving under the influence in violation of Idaho Code section 18-8004(1)(a). The State’s complaint included an enhancement which elevated the charge from a misdemeanor to a felony under Idaho Code section 18-8005(6). That provision states that a person who is guilty of violating Idaho Code section 18-8004(1) and “who previously has been found guilty of . . . two (2) or more violations of [I.C. § 18-8004(1)(a), (b), or (c)] or any substantially conforming foreign criminal violation, or any combination thereof, within ten (10) years . . . shall be guilty of a felony.” I.C. § 18-8005(6). At the time of his arrest, Schall had two prior DUI convictions within the last ten years: a November 2004 conviction in Idaho and a September 2004 conviction in Wyoming.
The State offered self-authenticating, certified records of Schall’s two prior DUI convictions at the preliminary hearing, with no objection from Schall. At the close of the preliminary hearing, Schall moved to dismiss, arguing that the State did not provide probable cause to believe he committed the felony offense because there was inadequate reason to believe the Wyoming statute under which he received his DUI conviсtion substantially conformed to Idaho’s DUI statute. Schall argued that it was the State’s burden at the preliminary hearing to place the Wyoming statute into evidence and demonstrate that the statute substantially conformed to Idaho’s. The magistrate disagreed, holding that once records of conviction were admitted, “it becomes the burden of the defendant to show that the statute is non-complying and that . . . should be done at the district court level.” Ultimately, the magistrate bound the case over to district court, finding that the State made a prima facie case.
In the district court, Schall filed a motion to dismiss, making the same argument he did below—that the State failed to show probable cause because it did not demonstrate that the Wyoming statute substantially conformed to the Idaho statute. In the alternative, Schall argued that the Wyoming statute did not substantially conform to the Idaho statute. The district court denied Schall’s motion to dismiss. It found that the State was not required to show probable cause at the preliminary hearing that the Wyoming DUI statute substantially conformed to Idaho’s. It also found, however, that the Wyoming statute does in fact substantially conform to Idaho’s. Thereafter, Schall entered a conditional guilty plea to felony DUI, reserving the right to *3 appeal “the decision on defendant’s motion to dismiss/challenge bind over.” The district court imposed a unified sentence of five years, with two years fixed, but suspended the sentence and placed Schall on probation. Schall timely appealed.
The Court of Appeals reversed the district court and remanded for further proceedings. It held that the State had the burden at the preliminary hearing to provide probable cause to believe that the Wyoming DUI statute substantially conformed to Idaho’s statute and that the State failed to carry that burden. This Court granted the State’s petition for review. The only issue on appeal is whether the district court erred in denying Schall’s motion to dismiss because the State failed to show probable cause that Wyoming’s DUI statute substantially conforms to Idaho’s DUI statute.
II.
ANALYSIS
A. Standard of review.
“In cases that come before this Court on a petition for reviеw of a Court of Appeals
decision, this Court gives serious consideration to the views of the Court of Appeals, but directly
reviews the decision of the lower court.”
State v. Oliver
,
B. The district court did not err in denying Schall’s motion to dismiss.
When charged with a felony, a defendant is entitled to a preliminary hearing before a
magistrate. I.C.R. 5.1(a). “The function of a preliminary hearing in Idaho is to determine if an
offense has been committed, and further if there is probable cause to believe that the crime was
committed by the accused.”
State v. Elisondo
,
Schall claims that the district court erred in denying his motion to dismiss because the State failed to provide probable cause with respect to one element of the offense of which he was charged. In particular, Schall claims that the State did not provide probable cause to believe he was previously convicted at least twice undеr Idaho’s DUI statute or a substantially conforming foreign statute. Idaho Code section 18-8004 prohibits driving under the influence of alcohol, drugs, or any other intoxicating substances. Idaho Code section 18-8005(6) provides:
Except as provided in section 18-8004C, Idaho Code, any person who pleads guilty to or is found guilty of a violation of the provisions of section 18- 8004(1)(a), (b) or (c), Idaho Code, who previously has been found guilty of or has pled guilty to two (2) or more violations of the provisions of section 18- 8004(1)(a), (b) or (c), Idaho Code, or any substantially сonforming foreign criminal violation, or any combination thereof, within ten (10) years, notwithstanding the form of the judgment(s) or withheld judgment(s), shall be guilty of a felony . . . .
Schall claims that Idaho Code section 18-8005(6) creates a separate offense—distinct from the offense defined by Idaho Code section 18-8004—with prior convictions of the relevant sort as elements of that offense. If that view were correct, then the State would have been required to present evidence at the preliminary hearing that Schall’s prior Wyoming conviction was a substantially conforming violation.
That reading of the provision is not correct, however. Idaho Code section 18-8005(6) requires that a violation of Idaho Code section 18-8004 be enhanced to a felony in certain circumstances. The existence of two or more convictions under Idaho Code section 18-8004, or some substantially similar statute, are predicates for the enhancement and not elements of a *5 separate offense. “[E]nhancements are not considered to be a new offensе for which there is a separate sentence. Rather, the enhancement is an additional term and is part of a single sentence for the underlying crime.” State v. Burnight , 132 Idaho 654, 658–59, 978 P.2d 214, 218–19 (1999). As a result, we hold that the State was not required at the preliminary hearing to provide probable cause to believe that Schall’s Wyoming DUI conviction was a substantially conforming foreign criminal violation.
The question whether prior convictions discussed in Idaho Code section 18-8005(6)
constitute elements of an offense or predicates for an enhancement is an issue of statutory
interpretation. “This Court exercises free review over legal questions presented by the
construction and application of a statute.”
State v. Montgomery
,
There are a number of reasons to think that Idaho Code section 18-8005(6) is clearly an
enhancement provision and not an attempt to create a separate offense. First, Idaho Code section
18-8005(6) is part of a section titled “Penalties.” That fact suggests that the section is concerned
with the penalties associated with offenses that have already been defined, not with defining new
offenses. Second, the provision is addressed directly to recidivism. Recidivism is “as typical a
sentencing factor as one might imagine.”
Almendarez-Torres v. United States
,
Furthermore, it is not clear how to read Idaho Code section 18-8005(6) as defining a new *6 offense. The provision applies to a defendant who has just been convicted of, or has pled guilty to, a violation of Idaho Code section 18-8004. Such a defendant is guilty of a felony if, on at least two previous occasions within the previous ten years, he has previously been convicted of, or pled guilty to, a violation of Idaho Code section 18-8004 or a substantially conforming foreign statute. The provision is not plausibly read as making it unlawful—and a felony—to be convicted of a third violation of Idaho Code section 18-8004. So understood, the felony offense would not even occur until after the defendant’s trial for the most recent violation of Idaho Code section 18- 8004. It is unlikely that the Idaho Legislature intended to make it a crime to be convicted of another crime. On the other hand, the felony offense does not occur when the defendant drives under the influence, even if he does so having been convicted twice before under Idaho Code section 18-8004. Though a defendant will thereby have committed the offense of violating Idaho Code section 18-8004, he will not have violated the offense defined by Idaho Code section 18- 8005(6) because he has not yet been convicted of the additional violation of Idaho Code section 18-8004. The clear terms of Idaho Code section 18-8005(6) state that it applies only tо a defendant who has just been convicted of, or pled guilty to, a violation of Idaho Code section 18- 8004.
The attempt to read an offense into Idaho Code section 18-8005(6) leaves it significantly unclear when that offense would be committed and by what conduct. Had the Legislature intended to define a new offense of the sort suggested by Schall, it could have easily done so by making it unlawful, and a felony, to drive under the influence having twice before been convicted of, or having pled guilty to, Idaho Code section 18-8004 or а substantially similar statute. The fact that it did not do so suggests that in a prosecution pursuant to Idaho Code section 18-8005(6), the offense at issue is the violation of Idaho Code section 18-8004 and that very offense may be charged either as a misdemeanor or a felony depending upon the defendant’s prior criminal history.
Finally, reading Idaho Code section 18-8005(6) as providing an enhancement for certain
violations of Idaho Code section 18-8004—and not as defining a new offense—is consistent with
this Court’s understanding of similar language in other Idаho statutes. For instance, Idaho’s
prohibition statute provided that “[a] person having once been convicted of a violation of any of
the provisions of this article . . . who thereafter violates the provisions hereof, shall be deemed
guilty of a felony . . . .”
State v. Holder
,
The statute purports to punish the second offense as a felony. When the evidence shows a present violation, say for unlawful possession of intoxicating liquor, and also a previous conviction for a violation of the prohibitory law, the penalty is increased as for a felony to imprisonment in the state penitentiary; that is, the penalty for possession is assessed as for a felony. at 517−18, 290 P. at 389. The Court endorsed the view that the statute functioned as an
enhancement—increasing the punishment of the underlying offense—withоut defining a new offense.
Similarly, like Idaho Code section 18-8005(6), Idaho’s persistent violator statute applies to a defendant who has recently been convicted of an offense, having been convicted twice before. The statute provides that:
Any person convicted for the third time of the commission of a felony, whether the previous convictions were had within the state of Idaho or were had outside the state of Idaho, shall be considered a persistent violator of law, and on such third conviction shаll be sentenced to a term in the custody of the state board of correction which term shall be for not less than five (5) years and said term may extend to life.
I.C. § 19-2514. In interpreting that statute, this Court has repeatedly held that “[t]he third
conviction of a person of a felony does not constitute a crime. The section merely provides for
punishment, on the third conviction of the accused, in excess of that which might have been
inflicted on him had he not been twice previously convicted.”
In re Bates
, 63 Idaho 748, 752,
“Statutes are construed under the assumption that the legislature was aware of all other statutes and legal precedence at the time the statute was passed.” Druffel v. State, Dept of Transp. , 136 Idaho 853, 856, 41 P.3d 739, 742 (2002). Because this Court has consistently *8 construed statutory language like that in Idaho Code section 18-8005(6) as providing for enhancements and not as creating separate offenses, the Legislature presumably intended that Idaho Code section 18-8005(6) would be similarly construed.
Schall makes a number of arguments to support the contrary view—that Idaho Code
section 18-8005(6) defines a separate offense. First, Schall cites
State v. Moore
,
Schall cites U.S. v. Rodriguez-Gonzales , 358 F.3d 1156 (9th Cir. 2004) as providing support for such a rule. In Rodriguez-Gonzales , the Ninth Circuit Court of Appeals considered whether a prior conviction for illegal entry must be explicitly charged in the indictment to elevate a subsequent misdemeanor conviction to a felony under 8 U.S.C. § 1325(a). Id. at 1160. The court emphasized the “serious ramifications for a defendant” in the distinction between a misdemeanor and a felony and held that “[b]ecause the statute changes the substantive nature of a second illegal reentry from a misdemeanor to a felony, the fact of a previous entry is more than a sentencing factor and must be charged explicitly.” Id. The decision in Rodriguez-Gonzales has no application here. First, the government conceded in that case—and prior Ninth Circuit precedent established—that a previous conviction for illegal entry “is an element of the felony offense [of § 1325].” (alteration in original) (quoting United States v. Campos-Martinez , 976 F.2d 589, 591 (9th Cir. 1992)). Whether prior DUI convictions are elements of an offense associated with Idaho Code section 18-8005(6) or merely predicates for an enhancement is *9 precisely the question at issue here. To the extent that the Ninth Circuit’s decision in Rodriguez- Gonzales relied upon its previous interpretation of the statute at issue in that case—and it is not clear to what extent it did—the decision does not address the question in this case.
The question here is whаt the Idaho Legislature intended to accomplish in enacting Idaho
Code section 18-8005(6). Though the distinction between misdemeanors and felonies entails
serious ramifications for a defendant, it is not clear how that bears on the Legislature’s intent.
Idaho’s persistent violator statute permits a life sentence for a defendant convicted of his third
felony. I.C. § 19-2514.
See also State v. Miller
,
Schall also cites to this Court’s decision in
State v. Howard
,
A preliminary hearing is intended “to determine whether or not a public offense has been committed and whether or not there is probable or sufficient cause to believe that the defendant committed such public offense .” I.C. § 19-804 (emphasis added). Idaho law does not require that the Stаte make an affirmative showing at the preliminary hearing that predicates for an enhancement are satisfied. Because prior convictions are predicates for an enhancement under Idaho Code section 18-8005(6), the State did not bear the burden at the preliminary hearing to show that Schall’s Wyoming DUI conviction is a substantially conforming conviction. The district court did not err in denying Schall’s motion to dismiss on the grounds that the State failed to make such a showing.
Though the State is not required to provide probable cause at the preliminary hearing to
believe that the predicates for an enhancement are satisfied in order to bind the defendant over to
the district court, the State nevertheless bears burdens with respect to those predicates. Most
importantly, the State bears the burden at trial to prove beyond a reasonable doubt that the
predicates for the enhancement are satisfied.
See Salazar
, 95 Idaho at 307, 507 P.2d at 1139
(holding that the State has the burden of proving prior convictions beyond a reasonable doubt for
purposes of persistent violator enhancement). In addition, “[i]n all cases wherein an extended
term of imprisonment is sought as the result of a prior conviction or convictions, the indictment
or information shall set forth the facts on which the extended term of imprisonment is sought.”
I.C.R. 7(c).
See also In re Bates
, 63 Idaho 748, 752−53,
Finally, this result does not leave a defendant without recourse to challenge the felony
enhancement once in district court. A defendant can do so in either of two ways. First, a
defendant can move
in limine
to strike the felony enhancement.
See
,
e.g.
,
State v. Schmoll
, 144
Idaho 800, 801,
III.
CONCLUSION The district court correctly denied Schall’s motion to dismiss and we therefore affirm. Chief Justice BURDICK, and Justices EISMANN and HORTON and Justice Pro Tem KIDWELL CONCUR.
Notes
[1] Howard was charged in 2008 with a felony pursuant to Idaho Code section 18-8005(5).
Howard
,