State v. Haggard, Docket No. 33948 (Idaho App. 2/11/2008)

• Decision Date: 11 February 2008
• Docket Number: Docket No. 33948
• Parties: STATE OF IDAHO, Plaintiff-Respondent, v. LONNIE LEE HAGGARD, Defendant-Appellant.
• Court: Idaho Court of Appeals

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STATE OF IDAHO, Plaintiff-Respondent, v. LONNIE LEE HAGGARD, Defendant-Appellant.

Docket No. 33948

Court of Appeals of Idaho.

Filed February 11, 2008.

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael E. Wetherell, District Judge.

Order denying I.C.R. 35 motion to correct an illegal sentence, affirmed.

Molly J. Huskey, State Appellate Public Defender; Justin M. Curtis, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.

GUTIERREZ, Chief Judge.

Lonnie Lee Haggard appeals from the denial of his Idaho Criminal Rule 35 motion to correct an illegal sentence. We affirm.

I. BACKGROUND

In November of 1989, Haggard was found guilty of two counts of burglary, I.C. §§ 18-1401, 18-1402, 18-1404,¹ aggravated battery with the intent to commit rape, I.C. §§ 18-911, and two counts of misdemeanor petit theft, I.C. §§ 18-2403(1), 18-2407. Haggard also was found to be a persistent violator and therefore subject to a sentence enhancement pursuant to I.C. § 19-2514. The district court sentenced Haggard to concurrent unified terms of twenty-five years with fifteen years determinate on each of the felonies and imposed a jail term of 127 days for the misdemeanor charges, with credit for 127 days served. In January of 2007, Haggard filed a Rule 35 motion to correct an illegal sentence, contending that the persistent violator enhancement statute is an illegal bill of attainder and violates the equal protection and due process clauses of the United States Constitution and the Idaho Constitution. The district court denied Haggard's motion. Haggard appeals that denial, again contending that the persistent violator enhancement is an illegal bill of attainder that violates his equal protection and due process rights.

II. DISCUSSION

A. Idaho Code Section 19-2514 is Not a Bill of Attainder

Haggard claims that his sentence is illegal because of the enhancement for being a persistent violator. He asserts that Idaho's persistent violator statute, I.C. § 19-2514, is a bill of attainder prohibited by the United States Constitution and the Idaho Constitution. The United States Constitution, in denying powers to the states, declares that "no state shall . . . pass any bill of attainder." U.S. CONST. art. I, § 10. Similarly, the Idaho Constitution states that "[n]o bill of attainder . . . shall ever be passed." IDAHO CONST. art. I, § 16. A bill of attainder is any legislation that targets an easily ascertainable group, determines guilt, and inflicts punishment without the protections of a judicial trial. United States v. Brown, 381 U.S. 437, 448-49 (1965); State v. Lovelace, 140 Idaho 53, 71, 90 P.3d 278, 296 (2003), on reh'g 140 Idaho 73, 90 P.3d 298 (2004); State v. Gee, 107 Idaho 991, 993, 695 P.2d 376, 378 (1985).

Idaho's persistent violator statute provides, in relevant part, that:

[a]ny person convicted for the third time of the commission of a felony . . . shall be considered a persistent violator of law, and on such third conviction shall 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. Whether this constitutes a bill of attainder has never been addressed in Idaho, although other states have analyzed their own, similar statutes for the same issue. See, e.g., People v. Israel, 206 P.2d 62, 69 (Cal. Dist. Ct. App. 1949) (declaring that the state's habitual offender enhancement is constitutional and not a bill of attainder); Velarde v. Zavaras, 960 P.2d 1162, 1163-64 (Colo. 1998) (analyzing the state's habitual criminal statute and determining that it is not an illegal bill of attainder); People v. Lawrence, 61 N.E.2d 361 (Ill. 1945) (upholding the state's Habitual Criminal Act against challenge that it was bill of attainder); Keeby v. State, 511 N.E.2d 1005, 1009 (Ind. 1987) (finding no violation of the constitution regarding bills of attainder or ex post facto laws by the state's habitual offender statute); State v. Thorne, 921 P.2d 514 (Wash. 1996) (confirming that the state's Persistent Offender Accountability Act is not a bill of attainder).

The first indicator of a bill of attainder is the specificity of the persons who are affected by the legislation. Langford v. Day, 134 F.3d 1381, 1382 (9th Cir. 1998); Lovelace, 140 Idaho at 71, 90 P.3d at 296. Idaho's persistent violator statute provides no readily ascertainable group of persons who will be subjected to the enhanced penalty. Any person in the entire United States who commits a felony in Idaho may be subject to I.C. § 19-2514 if he or she has two prior felony convictions, regardless of what state entered the judgment of conviction. I.C. § 19-2514 (applying the enhancement to "[a]ny 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 . . . ."). While the group of persons in this country who have committed two felonies can be identified, there is no way to know which of those persons will commit a third felony, and do so within Idaho's borders. The group of individuals affected by I.C. § 19-2514 is neither specific, nor ascertainable. See Thorne, 921 P.2d at 525 (holding that there is no specific group targeted by the legislation because "those with two convictions . . . can avoid the enhanced sentence by not committing the third offense").

The second characteristic of a bill of attainder is that it imposes punishment on the specified group or individual. Langford, 134 F.3d at 1382; Lovelace, 140 Idaho at 71, 90 P.3d at 296. Idaho has long held that the persistent violator statute does not impose punishment for past criminal activities; rather "[i]t is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one." State v. Polson, 93 Idaho 912, 914, 478 P.2d 292, 294 (1970) (quoting Gryger v. Burke, 334 U.S. 728, 732 (1948)); see also State v. Martinez, 107 Idaho 928, 929-30, 693 P.2d 1130, 1131-32 (Ct. App. 1985) (finding that only one sentence is imposed as a result of a persistent violator statute, and that a "state is justified in punishing a recidivist more severely than it punishes a first offender"). Idaho's persistent violator law does not create a new offense requiring punishment either, but rather renders a person convicted liable to punishment in excess of that which might have been inflicted upon him had he not been twice previously convicted. State v. Johnson, 86 Idaho 51, 57, 383 P.2d 326, 329 (1963); see also Velarde, 960 P.2d at 1164; Lawrence, 61 N.E.2d at 364. While I.C. § 19-2514 does enhance the punishment applicable for the third and future felony convictions, it does not impose punishment independently of that new conviction.

Finally, a bill of attainder imposes punishment on the specified group without the protection of a judicial trial. Langford, 134 F.3d at 1382; Lovelace, 140 Idaho at 71, 90 P.3d at 296. In order for a person to be sentenced as a persistent violator, the prior convictions relied upon to invoke I.C. § 19-2514 must be alleged in the indictment or information and proved at trial. State v. Martinez, 102 Idaho 875, 880, 643 P.2d 555, 560 (Ct. App. 1982). Whether the trial is before a judge or a jury, the defendant is guaranteed the protections of the judicial process prior to a finding that he is a persistent violator. See Velarde, 960 P.2d at 1164; Thorne, 921 P.2d at 525. In this case, Haggard was alleged to be a persistent violator in an Information Part II. After a finding of guilt on the charges in this case, the jury was presented with evidence of Haggard's prior felonies. The jury returned a supplemental verdict concluding that Haggard had committed at least two felonies prior to commission of the crimes at issue in this case. Haggard received all of the judicial protections that could be afforded him.

Idaho's persistent violator statute is not an illegal bill of attainder; it doesn't single out a specific group or individual, it does not impose punishment, and judicial protections are a required prerequisite to the imposition of an enhanced sentence pursuant to its terms.

B. Application of I.C. § 19-2514 Does Not Violate the Equal Protection Clause

Haggard also claims that using a prior conviction for grand theft, I.C. §§ 18-2403, 18-2407, to enhance the sentence on his current charges violates the due process and equal protection clauses of the United States and Idaho constitutions. He construes the sentencing options for grand theft found in I.C. § 18-2408(1) to mean that a violation may result in either a misdemeanor or a felony conviction. Accordingly, only certain persons with a conviction for grand theft will be subject to an enhanced sentence pursuant to I.C. § 19-2514, thus creating two discernible classes of people convicted of grand theft, and violating the guarantee of equal protection.² The state counters with the argument that the Idaho Supreme Court already upheld I.C. § 19-2514 in the face of claims that it violates the equal protection clause through selective or non-uniform enforcement. See Balla v. State, 98 Idaho 344, 345, 563 P.2d 402, 403 (1977), overruled on other grounds by Cherniwchan v. State, 99 Idaho 128, 578 P.2d 244 (1978).

The equal protection clauses of the state and federal constitutions embrace the principle that all persons in like circumstances should receive the same benefits and burdens of the law. State v. Breed, 111 Idaho 497, 500, 725 P.2d 202, 205 (Ct. App. 1986). Equal protection issues focus upon classifications within statutory schemes that allocate benefits or burdens differently among the categories of persons affected. Id. In Balla, 98 Idaho at 345, 563 P.2d at 403, the Supreme Court unequivocally...