State v. Corbus

• Citation: 151 Idaho 368,256 P.3d 776
• Decision Date: 01 March 2011
• Docket Number: No. 36681.,36681.
• Court: Court of Appeals of Idaho
• Parties: STATE of Idaho, Plaintiff–Respondent, v. Raymond Gene CORBUS, Defendant–Appellant.

151 Idaho 368

256 P.3d 776

STATE of Idaho, Plaintiff–Respondent,

v.Raymond Gene CORBUS, Defendant–Appellant.

No. 36681.

Court of Appeals of Idaho.

March 1, 2011.

Review Denied Aug. 2, 2011.

Molly J. Huskey, State Appellate Public Defender; Eric D. Fredericksen, Deputy Appellate Public Defender, Boise, for appellant.

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

MELANSON, Judge.

Raymond Gene Corbus appeals from his judgment of conviction for felony eluding a peace officer and misdemeanor reckless driving. Specifically, Corbus contends that the district court erred in denying his motion to dismiss because the state violated the Double Jeopardy Clause by subjecting him to multiple criminal prosecutions and multiple convictions and punishments for the same offense. For the reasons set forth below, we affirm.

I.FACTS AND PROCEDURE

Police officers observed Corbus's vehicle travelling approximately 60 mph in a 35 mph zone. Corbus was given a signal by the police officers to stop his vehicle, but he refused to do so. The police pursued Corbus's vehicle at speeds that exceeded 100 mph. During the chase, Corbus passed other vehicles and turned off his headlights even though it was past sunset. Eventually, Corbus's vehicle hit a rock and came to a stop. Corbus was charged with felony eluding a peace officer, I.C. § 49–1404, and misdemeanor reckless driving, I.C. § 49–1401. At his arraignment, Corbus entered a guilty plea to reckless driving, but was not immediately sentenced. Corbus subsequently filed a motion to dismiss the charge of eluding a police officer, contending that reckless driving was a lesser included offense of eluding a police officer and that, therefore, continuing his prosecution for eluding a police officer would violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Article 1, Section 13 of the Idaho Constitution. The district court denied Corbus's motion to dismiss. Corbus then pled guilty to eluding a police officer but reserved the right to appeal the district court's denial of his motion to dismiss.

The district court sentenced Corbus to a unified term of five years, with a minimum period of confinement of one and one-half years, for eluding a police officer and a concurrent term of 120 days for reckless driving. The sentences were suspended, and Corbus was placed on probation. Corbus appeals.

II.ANALYSIS

Corbus argues that he was subjected to multiple prosecutions and multiple convictions and punishments in violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Article 1, Section 13 of the Idaho Constitution. Corbus asserts that, because he first pled guilty to reckless driving, he could not subsequently be prosecuted or convicted and punished for eluding a police officer because the two crimes constitute one offense for double jeopardy purposes. The Double Jeopardy Clause of the United States and Idaho Constitutions provide that no person shall be twice put in jeopardy for the same offense. The Double Jeopardy Clause of the Idaho and United States Constitutions affords a defendant three basic protections. It protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple criminal punishments for the same offense. Schiro v. Farley, 510 U.S. 222, 229, 114 S.Ct. 783, 788–89, 127 L.Ed.2d 47, 56 (1994) ; State v. McKeeth, 136 Idaho 619, 624, 38 P.3d 1275, 1280 (Ct.App.2001). Whether a defendant's prosecution complies with the constitutional protection against being placed twice in jeopardy is a question of law over which we exercise free review. State v. Santana, 135 Idaho 58, 63, 14 P.3d 378, 383 (Ct.App.2000).

A. Multiple Prosecutions

Corbus argues that, because reckless driving is a lesser included offense of eluding a police officer and because he pled guilty to reckless driving before he pled guilty to eluding, he was subjected to multiple prosecutions for the same offense in violation of the Double Jeopardy Clause. The state, however, is not prohibited by the Double Jeopardy Clause from charging a defendant with greater and lesser included offenses and prosecuting those offenses together in a single prosecution. Ohio v. Johnson, 467 U.S. 493, 500, 104 S.Ct. 2536, 2541, 81 L.Ed.2d 425, 434 (1984). A determination of guilt on one count of a multi-count indictment does not immediately raise a double jeopardy bar to continued prosecution on any remaining greater or lesser count. Id. at 501, 104 S.Ct. at 2541–42, 81 L.Ed.2d at 434. Here, Corbus was charged, in the same information, with both reckless driving and eluding a police officer and was prosecuted simultaneously for both offenses. Acceptance of Corbus's guilty plea to reckless driving did not preclude the state from continuing its prosecution on the greater offense of eluding a police officer. Therefore, the district court did not err in denying Corbus's motion to dismiss made on the ground that he could not be subjected to multiple prosecutions in violation of the Double Jeopardy Clause of the United States and Idaho Constitutions.

B. Multiple Convictions and Punishments

Corbus also argues that he was subjected to multiple convictions and punishments for the same offense in violation of the Double Jeopardy Clause because he was convicted and sentenced for both reckless driving and eluding a police officer. Corbus did not, however, raise the issue of multiple convictions and punishments in the court below—only a claim of multiple prosecutions. Idaho decisional law has long-allowed appellate courts to consider a claim of error to which no objection was made below if the issue presented rises to the level of fundamental error. See State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007) ; State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262 (1971). Recently, in State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court restated the definitions it had previously utilized to describe what may constitute fundamental error. The Perry Court held that an appellate court should reverse for an unobjected-to error when the defendant persuades the court that the alleged error: (1) violates one or more of the defendant's unwaived constitutional rights; (2) the error is clear or obvious without the need for reference to any additional information not contained in the appellate record; and (3) the error affected the outcome of the trial proceedings. Id. at 226, 245 P.3d at 978. In applying Perry, we initially note that Corbus brings his double jeopardy claim under both the United States and Idaho Constitutions.

1. Claim under the United States Constitution

Under the first prong of Perry, we must determine whether Corbus has shown that his unwaived constitutional right against multiple convictions and punishments under the United States Constitution has been violated. The United States Supreme Court applies a statutory theory to determine whether a defendant's prosecution or conviction and punishment for two offenses violates the Double Jeopardy Clause of the United States Constitution. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932). The Blockburger test provides that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there have been two offenses or only one for double jeopardy purposes is whether each statutory provision requires proof of an additional fact which the other does not. Id. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309. In consecutive prosecutions, if two offenses have been determined to be one offense under the Blockburger test, then convicting and punishing a defendant for both offenses is a violation of the Double Jeopardy Clause. Brown v. Ohio, 432 U.S. 161, 168–69, 97 S.Ct. 2221, 2226–27, 53 L.Ed.2d 187, 195–96 (1977).

Applying the Blockburger test in this case, we conclude that there has been no violation of Corbus's double jeopardy rights under the United States Constitution. Reckless driving and felony eluding constitute two separate offenses because each crime requires proof of at least one element that the other does not. Reckless driving requires, among other elements, that a person drive "upon a highway, or upon public or private property open to public use." I.C. § 49–1401(1).¹ Felony eluding a police officer does not contain this element. See I.C. § 49–1404.² Felony eluding a police officer requires, among other elements, that a person "wilfully flees or attempts to elude a pursuing police vehicle when given a visual or audible signal to bring the vehicle to a stop." I.C. § 49–1404(1). Reckless driving does not contain this element. See I.C. § 49–1401(1). Thus, the crimes of reckless driving and felony eluding a police officer constitute two separate offenses under the Blockburger test because each contains an element that the other does not. Corbus has not shown that his right under the Double Jeopardy Clause of the United States Constitution against being subjected to multiple convictions and punishments has been violated because there is no prohibition against conviction and punishment for two separate offenses. Therefore, Corbus has failed, under the first prong of the Perry test, to show fundamental error with regard to his double jeopardy claim which arises under the United States Constitution. Consequently, we will not further address this argument on appeal.

2. Claim under the Idaho Constitution

We must also determine whether Corbus has shown fundamental error with regard to his double jeopardy claim which arises under the Idaho Constitution. We conclude that Corbus's argument that he was subjected to multiple convictions and punishments under the Idaho Constitution does not demonstrate fundamental error because the second prong, requiring that...