State v. Dallas
| Decision Date | 16 August 1994 |
| Docket Number | No. 20954,20954 |
| Citation | 126 Idaho 273,882 P.2d 440 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Claude Lafayette DALLAS, Jr., Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Nevin, Kofoed & Herzfeld, David Z. Nevin, Boise, for appellant.
Larry EchoHawk, Atty. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for respondent.
This is an appeal from an order by the district court denying a motion under I.C.R. 35 to correct an allegedly illegal sentence. The question of whether a sentence is illegal, and therefore subject to correction under Rule 35, is an issue for free review on appeal. State v. Josephson, 124 Idaho 286, 858 P.2d 825 (Ct.App.1993). Here, we conclude that the challenged sentence was not illegal, and we affirm the order denying relief under Rule 35.
The appellant, Claude Dallas, was sentenced on two counts of voluntary manslaughter and for using a firearm in committing those offenses, in the shooting deaths of Idaho Fish and Game officers William Pogue and Conley Elms. The judgment of conviction, reflecting the sentences imposed, reads as follows:
It is adjudged that the defendant be sentenced to the custody of the State Board of Correction for an indeterminate period of time, not to exceed ten years on Count I; not to exceed ten years on Count II, the same to run consecutive to Count I; not to exceed a total of ten years on Part B of Count I and Count II, (enhanced penalties treated as one since the Court found only one intent involved in the two shootings) the same to run consecutive to Count II.
In an earlier appeal, our Supreme Court upheld the judgment of conviction and sentences. State v. Dallas, 109 Idaho 670, 710 P.2d 580 (1985).
Later, Dallas filed a motion under I.C.R. 35 for correction of his sentences on the ground of illegality. His motion alleged that the judgment of conviction purported to sentence him to a consecutive sentence of ten years on Part B of Counts I and II, whereas I.C. § 19-2520 required a sentence enhancement. He averred: The premise for Dallas' attack on this sentence is that I.C. § 19-2520 does not prescribe a new offense, but provides only for the imposition of additional punishment upon conviction for an offense in which a firearm was used. State v. Lee, 103 Idaho 135, 645 P.2d 369 (1982).
The district court denied Dallas' motion, concluding that the judgment entered must be read as a single judgment which was composed of three separate parts: the sentence for each of the underlying manslaughter convictions and the enhancement for use of a firearm. This appeal followed.
Dallas' argument challenging the district court's denial of relief under Rule 35 is composed of three parts. First, he continues to assert that the sentencing court imposed a separate, consecutive sentence and not an enhancement authorized by I.C. § 19-2520 for the use of a firearm. Next, he contends that the district court's determination that the sentences were not illegal was a modification of his sentences, which was made without the defendant being present in violation of I.C. § 19-2503 and I.C.R. 43(a). Finally, Dallas argues that--due to these alleged errors--the appropriate remedy on appeal should be for this Court to strike the illegal portion of the sentence or to remand the case for a new sentencing proceeding with the defendant being present.
Dallas takes exception to the language appearing in the written judgment of conviction, arguing that he was clearly given a separate sentence for the use of a firearm, to be served consecutively to the two manslaughter sentences. This, he submits, constituted an illegal sentence. However,
Although a written judgment is presumably a correct statement of the judgment pronounced in open court, and for that reason is ordinarily treated as an expression of the judgment itself, the principle remains that the only legally cognizable sentence in a criminal case is the "actual oral pronouncement in the presence of the defendant." ... The legal sentence consists of the words pronounced in open court by the judge, not the words appearing in the written order of commitment.
State v. Wallace, 116 Idaho 930, 782 P.2d 53 (Ct.App.1989) (citations omitted). Consistent with this principle, we have reviewed the transcript of the sentencing proceeding in this case, on file in the state law library following the remittitur entered by the Supreme Court in Dallas' direct appeal. That transcript contains the oral pronouncement made by the court upon sentencing Dallas. The judge said:
Having considered all the information, Mr. Dallas, and having sat as the judge in this case, having tried to be a objective and as fair as I can, the Court finds that the killing of Mr. Pogue was totally unjustified and that you killed Mr. Pogue with little or no remorse. The judgment of this Court is that you be sentenced to the Idaho State Board of Corrections at the Idaho State Penitentiary for an indeterminate period of time not to exceed ten years, which is the maximum allowed by law, tempered by the Court only by the fact that it would be unfair for this Court not to consider your reputation and the testimony that has been given in this case, your prior record and everything that we talked about earlier. I am not going to consider a determinate sentence.
It is further the judgment of this Court that the killing of Mr. Elms was morally reprehensible and without justification. Your actions were void of any remorse or feeling so far as Mr. Elms was concerned. Again, it is the judgment of this Court that you should be sentenced to the Idaho State Board of Corrections at the Idaho State Penitentiary for an indeterminate period of time not to exceed ten years, the same to run consecutive with the prior sentence.
....
Insofar as the use of the firearm is concerned, it is the judgment of this Court that the use of the firearm, particularly in the shooting of the officers in the head was atrocious and outrageous. It is the judgment of this Court that you should be sentenced to the Idaho State Board of Corrections and the Idaho State Penitentiary likewise for an indeterminate period of time not to exceed ten years. The same should run consecutively to the prior two sentences.
I have briefed this issue of law, Mr. Dallas, and when we are talking about the use of the firearm, the legislature, as spokesmen for the people themselves, has taken the position that the use of a firearm in this type of a situation is totally reprehensible and something that the courts need to increase the punishment for and enhance the penalty, and therefore that...
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