State v. Nicolai
| Decision Date | 16 May 2014 |
| Docket Number | Docket No. 41566,2014 Unpublished Opinion No. 509 |
| Court | Idaho Court of Appeals |
| Parties | STATE OF IDAHO, Plaintiff-Respondent, v. FRANK LESLIE NICOLAI, Defendant-Appellant. |
Stephen W. Kenyon, Clerk
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael E. Wetherell, District Judge.
Order denying motion to correct illegal sentence, affirmed.
Frank Leslie Nicolai, Boise, pro se appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.
Frank Leslie Nicolai was convicted of rape and second degree kidnapping. He was sentenced to a determinate life term of imprisonment for the rape and a concurrent determinate term of twenty-five years in prison for the kidnapping. Nicolai filed a motion pursuant to Idaho Criminal Rule 35 contending that his sentence is illegal. The court denied the motion and Nicolai appeals.
Nicolai was indicted on charges of rape, Idaho Code § 18-6101, and kidnapping, I.C. § 18-4503. During trial, Nicolai chose to change his plea and ultimately pleaded guilty to both counts. Thereafter, Nicolai filed a petition for post-conviction relief alleging ineffective assistance of counsel. In those proceedings, the district court concluded that Nicolai was entitledto resentencing and did resentence him,1 imposing a fixed term of twenty-five years in prison as to the kidnapping charge and a concurrent fixed life sentence as to the rape charge. Nicolai directly appealed his sentences, arguing that they were unduly harsh. This Court affirmed the judgment and sentences in an unpublished opinion. State v. Nicolai, Docket No. 35770 (Ct. App. May 5, 2009).
Thereafter, Nicolai filed a motion, pursuant to I.C.R. 35, arguing that his fixed life sentence is illegal. The district court denied the Rule 35 motion and Nicolai now appeals.
Neither in the district court nor on appeal has Nicolai set forth his legal arguments with specificity. Nonetheless, we construe his pleadings below, and his briefing on appeal, to raise six issues: (1) his fixed life sentence is illegal because the relevant statute authorizes life sentences, but not fixed life sentences; (2) the court failed to inform him of the maximum sentence that could be imposed for the offense of rape, because the court informed him he could be sentenced to life, but not to fixed life; (3) despite receiving a fixed life sentence, he should be parole eligible after ten years in prison; (4) to the extent a fixed life sentence could be imposed, it was based upon an unidentified aggravating fact and the determination of that fact was not submitted to the jury as required by Apprendi v. New Jersey, 530 U.S. 466 (2000); (5) Idaho Code § 19-2513 limits the sentencing discretion of the court to imposed fixed sentences; (6) the court is required to enter specific findings before imposing a life sentence and it failed to do so.
We begin our analysis by noting that Nicolai's Rule 35 motion is time-barred unless he can demonstrate that his sentence is illegal. By terms of that rule, a motion to correct an illegal sentence may be made "at any time," but motions to reduce a sentence as a matter of leniency or because the sentence was imposed in an illegal manner had to be filed within 120 days of Nicolai's judgment of conviction. I.C.R. 35(a) and (b). Therefore, we examine Nicolai's contentions to determine whether they demonstrate that his sentences are illegal in any respect.
Most of Nicolai's claims depend, at least in part, upon a faulty statutory construction argument. Nicolai essentially argues that because the legislature used the term "fixed life" in the murder punishment statute, I.C. § 18-4004, we should construe all other statutes to preclude fixed life sentences unless similar language is used. That is, he contends that a statute authorizing a "life sentence" for an offense authorizes only an indeterminate life sentence and not a fixed life sentence because the statute does not say "fixed life."
Nicolai's argument is utterly without merit. Idaho Code §§ 18-107 and 19-2513 grant trial courts discretion in imposing the fixed and indeterminate portions of a sentence. Section 18-107 specifies:
Whenever, in this code, the punishment for a crime is left undetermined between certain limits, the punishment to be inflicted in a particular case, must be determined by the court authorized to pass sentence within such limits as may be prescribed by this code.
Section 19-2513 states in part:
The court shall specify a minimum period of confinement and may specify a subsequent indeterminate period of custody. The court shall set forth in its judgment and sentence the minimum period of confinement and the subsequent indeterminate period, if any, provided, that the aggregate sentence shall not exceed the maximum provided by law. During a minimum term of confinement, the offender shall not be eligible for parole or discharge or credit or reduction of sentence for good conduct except for meritorious service except as provided in section 20-223(f), Idaho Code. The offender may be considered for parole or discharge at any time during the indeterminate period of the sentence and as provided in section 20-223(f), Idaho Code.
The limits for a sentence for rape are set by I.C. § 18-6104, which states that "[r]ape is punishable by imprisonment in the state prison not less than one (1) year, and the imprisonment may be extended to life." Thus, Section 18-6104 set the outer limits of the permissible sentence for rape (one year to life), Section 18-107 gave the court authority to impose a sentence anywhere within those outer limits, and Section 19-2513 conferred discretion to determine what portion (or all) of the sentence would be determinate or indeterminate. Consistent with that discretion, the district court may impose a fixed life sentence for the offense of rape. See also State v. Amerson, 129 Idaho 395, 408, 925 P.2d 399, 412 (Ct. App. 1996) (). Accordingly, a fixed life sentence for rape is not illegal.
Next Nicolai contends that he was not properly informed of his potential sentence at arraignment. He argues that he was informed that he might receive a life sentence, but not a fixed life sentence. A Rule 35 motion claiming that a sentence is illegal, may be brought to challenge only "a narrow category of cases in which the sentence imposes a penalty that is simply not authorized by law or where new evidence tends to show that the original sentence was excessive." State v. Clements, 148 Idaho 82, 86, 218 P.3d 1143, 1147 (2009). But see State v. Lute, 150 Idaho 837, 838, 252 P.3d 1255, 1256 (2011). Nicolai's argument that the arraignment proceeding was faulty does not demonstrate that the sentence itself was illegal.2
Nicolai argues that Idaho Code § 19-2513 limits the discretion of the sentencing court when a crime carries a mandatory minimum sentence. The relevant portion of I.C. § 19-2513 states that: "If the offense carries a mandatory minimum penalty as provided by statute, the court shall specify a minimum period of confinement consistent with such statute." Nicolai argues that we should interpret this language to mean that the court may impose any indeterminate sentence otherwise authorized, but the fixed portion of the sentence may not exceed the minimum sentence stated in the statute. Because I.C. § 18-6104 authorizes a sentence of "imprisonment in the state prison not less than one (1) year . . . to life," Nicolai contends that his fixed term may not be more than one year.
Nicolai's argument distorts the meaning of the statute. In substance, he contends that the one-year minimum sentence authorized by the statute is instead a one-year maximum fixed term. The statute actually authorizes for rape a sentence of any duration between one year and life, and I.C. § 19-2513 authorizes the court to distribute that sentence between a determinate (fixed) term and an indeterminate term within the court's discretion. Therefore, Nicolai's sentence for rape is consistent with the relevant sentencing statutes, as required by I.C. § 19-2513.
Nicolai next argues that his fixed life sentence is improper because certain facts must be found by a jury before a fixed life sentence may be imposed. In support of his view, he cites Apprendi. That case holds that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490.
Apprendi has no application to Nicolai's sentence. The statute upon which he relies, I.C. § 19-2515, applies only to cases where the death penalty may be imposed. The State is not required to prove an aggravating factor in order to give a trial court the discretion to impose a fixed life sentence for rape that is authorized by I.C. § 18-6104 and I.C. § 19-2513. Accordingly, because no fact increased "the penalty for a crime beyond the prescribed statutory maximum," Apprendi is plainly inapposite. The Idaho Supreme Court so recognized in State v. Stover, 140 Idaho 927, 931, 104 P.3d 969, 973 (2005), where the Court held that Idaho's unified sentencing regime (other than for capital cases) does not require a finding of fact in order to impose a sentence within the minimum and maximum periods of incarcerations authorized by law.
Nicolai also argues that a person sentenced to life imprisonment becomes parole eligible in ten years. He...
To continue reading
Request your trial