State v. Elcock

• Decision Date: 17 November 2022
• Docket Number: 49491
• Parties: STATE OF IDAHO, Plaintiff-Respondent, v. KENNETH EDWARD ELCOCK, Defendant-Appellant.
• Court: Idaho Court of Appeals

STATE OF IDAHO, Plaintiff-Respondent,
v.
KENNETH EDWARD ELCOCK, Defendant-Appellant.

No. 49491

Court of Appeals of Idaho

November 17, 2022

UNPUBLISHED OPINION

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Derrick J. O'Neill, District Judge.

Order denying Idaho Criminal Rule 35(a) motion for correction of illegal sentence, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Jacob L. Westerfield, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Justin R. Porter, Deputy Attorney General, Boise, for respondent.

Before LORELLO, Chief Judge; GRATTON, Judge; and BRAILSFORD, Judge.

PER CURIAM

Kenneth Edward Elcock pled guilty to one count of second degree murder, Idaho Code §§ 18-4001, 18-4002, 18-4003(g); three counts of aggravated battery, I.C. §§ 18-903(c), 18907; and one count of aggravated assault, I.C. §§ 18-901(a), 18-905. The district court imposed a unified sentence of life with forty years determinate for second degree murder; concurrent, fifteenyear sentences on each count of aggravated battery; and a concurrent, five-year sentence for aggravated assault.

Elcock filed a pro se Idaho Criminal Rule 35(a) motion for correction of an illegal sentence. Elcock acknowledges "a motion to correct [an] illegal sentence under [Rule] 35(a) is limited to

1

sentences that are illegal from the face of the record." Regardless, Elcock asserts that his sentence is illegal because: (1) a life sentence could only be imposed if aggravating factors were presented to a jury; (2) a life sentence was improper under State v. Eubank, 114 Idaho 635, 638, 759 P.2d 926, 929 (Ct. App. 1988); and (3) the mental health evaluation ordered prior to sentencing did not include an MRI examination. Counsel was appointed to represent Elcock on his motion. The district court denied Elcock's motion, finding that his sentence is not illegal. Elcock appeals.

In State v. Clements, 148 Idaho 82, 86, 218 P.3d 1143, 1147 (2009), the Idaho Supreme Court held that the term "illegal sentence" under Rule 35 is narrowly interpreted as a sentence that is illegal from the face of the record, i.e., does not involve significant questions of fact or require an evidentiary hearing. Rule...