State v. Olin

• Decision Date: 26 October 2012
• Docket Number: No. 38056.,38056.
• Citation: 153 Idaho 891,292 P.3d 282
• Court: Idaho Court of Appeals
• Parties: STATE of Idaho, Plaintiff–Respondent, v. Jerry Lee OLIN, Defendant–Appellant.

153 Idaho 891

292 P.3d 282

STATE of Idaho, Plaintiff–Respondent,

v.Jerry Lee OLIN, Defendant–Appellant.

No. 38056.

Court of Appeals of Idaho.

Oct. 26, 2012.

Review Denied Jan. 30, 2013.

Sara B. Thomas, State Appellate Public Defender; Diane M. Walker, Deputy Appellate Public Defender, Boise, for appellant. Diane M. Walker argued.

Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent. Russell J. Spencer argued.

GUTIERREZ, Judge.

Jerry Lee Olin appeals from his judgment of conviction following his entry of guilty pleas to three counts of sexual abuse of a child under the age of sixteen years, charged in an amended indictment. Specifically, Olin asserts the district court lacked subject matter jurisdiction over Count I because the statute defining sexual abuse that existed at the time Olin allegedly committed the acts in the amended indictment did not criminalize those acts. We vacate the judgment of conviction as to Count I and remand the case for further proceedings.

I.FACTS AND PROCEDURE

In November 2009, a grand jury indicted Olin on three counts of lewd conduct with a minor under sixteen and five counts of sexual abuse of a child under the age of sixteen years for acts allegedly committed against Olin's three step-daughters between November 2001 and September 2002. Pursuant to a plea agreement, the State filed an amended indictment charging Olin with three counts of sexual abuse of a child under the age of sixteen years and moved to dismiss the other counts in the original indictment. Olin pled guilty to each of the three counts in the amended indictment: Count I alleged Olin committed sexual abuse by masturbating in the presence of a child in violation of Idaho Code § 18–1506(1)(d) ; Counts II and III alleged Olin sexually abused two children by rubbing each of their breasts in violation of Idaho Code § 18–1506(1)(b).

The district court entered a judgment of conviction and imposed concurrent, unified sentences of twenty years, with ten years determinate, for each count. Olin appealed. After Olin filed his appeal, the State filed an Idaho Criminal Rule 35 motion for a correction of the sentences because the statutory maximum punishment for sexual abuse of a child committed in 2001 and 2002 was fifteen years and Olin's sentences were, therefore, illegal. The district court amended the judgment to reflect sentences of concurrent, unified terms of fifteen years, with ten years determinate, for each count.¹ On appeal, Olin asserts the district court lacked subject matter jurisdiction over Count I in the amended indictment, requiring this Court to vacate the judgment of conviction.

II.DISCUSSION

Criminal charging documents serve to provide a jurisdictional grounding for the court to hear the case, to provide notice of the charge to the defendant against which he must defend himself, and to prevent a defendant from being subject to double jeopardy. See State v. Rogers, 140 Idaho 223, 228, 91 P.3d 1127, 1132 (2004) (noting that the charging document in a criminal case confers jurisdiction on the district court); State v. Holcomb, 128 Idaho 296, 300, 912 P.2d 664, 668 (Ct.App.1995) (stating that to fulfill the functions of criminal pleading, such pleading must first contain the elements of the offense charged to fairly inform the defendant of the charge, and second, it must enable a defendant to bar future prosecutions for the same offense). To serve these functions, a charging document must be legally sufficient to impart jurisdiction and satisfy due process. State v. Severson, 147 Idaho 694, 708, 215 P.3d 414, 428 (2009). Whether a charging document conforms to legal requirements and whether a court has jurisdiction are questions over which we exercise free review. Id.

A charging document—whether it is an indictment or an information—confers jurisdiction if it alleges that the defendant committed a criminal offense within the State of Idaho. Id.; State v. Jones, 140 Idaho 755, 757–58, 101 P.3d 699, 701–02 (2004). The document satisfies due process when it, among other things, contains factual specificity adequate to inform a person of common understanding to know what is intended and to shield against double jeopardy. Severson, 147 Idaho at 708, 215 P.3d at 428. While any due process claims of insufficiency can be waived, a challenge asserting that the charging indictment is jurisdictionally deficient is never waived. Id.; Jones, 140 Idaho at 758, 101 P.3d at 702. Idaho Criminal Rule 12(b)(2) allows objections regarding defects in the charging document to be raised at any time through the course of proceedings if the defect is jurisdictional or results in a failure to charge an offense. Olin argues, for the first time on appeal, that Count I in the amended indictment failed to confer subject matter jurisdiction precisely because it failed to charge an offense.

In State v. Izzard, 136 Idaho 124, 127, 29 P.3d 960, 963 (Ct.App.2001), this Court held that a jurisdictional defect exists when: (1) the alleged facts are not made criminal by statute; (2) there is a failure to state facts essential to establish the offense charged; (3) the alleged facts show on their face that the court has no jurisdiction of the charged offense; or (4) the allegations fail to show that the offense charged was committed within the territorial jurisdiction of the court.² More recently, however, the Idaho Supreme Court has modified the jurisdictional analysis by differentiating between due process issues and those involving jurisdiction. Now, a charging document's failure to state facts with specificity to support the charge or failure to allege an essential element of the crime are not fatal to jurisdiction on challenges made after trial or for the first time on appeal if the charging document cites to the applicable code section. See Jones, 140 Idaho at 760, 101 P.3d at 704; see also State v. Quintero, 141 Idaho 619, 621–22, 115 P.3d 710, 712–13 (2005) (citing to Jones, finding that failure to allege an element of the crime, proven at trial, was not fatal to jurisdiction, as the element could be read into the charging document by reference to the applicable code cited in the information). The parties here disagree as to whether there exists a jurisdictional or due process defect. If the alleged defect is not jurisdictional, the claim has been waived.

Under the circumstances presented here, the amended indictment was insufficient to impart jurisdiction over Count I. There is a distinction between a failure to allege an element of the offense or a material fact—which may be later proven, admitted to, or inferred from the language in the document and the cited statute—establishing what is actually a crime, and alleging acts that do not constitute a crime according to the laws of the State. Our courts "have many times rejected jurisdictional challenges to charging documents because their factual allegations could fairly be construed to include elements that were claimed by defendants to have been omitted." State v. Murray, 143 Idaho 532, 536, 148 P.3d 1278, 1282 (Ct.App.2006) ; see also State v. Cook, 143 Idaho 323, 326, 144 P.3d 28, 32 (Ct.App.2006) (implying the element of "knowing" from the word "purchase" in the indictment to find jurisdiction); State v. McNair, 141 Idaho 263, 268, 108 P.3d 410, 415 (Ct.App.2005) (finding jurisdiction by implying the element of negligence from the terms "carelessly," "imprudently," and "inattentively"); State v. Halbesleben, 139 Idaho 165, 168, 75 P.3d 219, 222 (Ct.App.2003) (finding jurisdiction by inferring the defendant had "care and custody" of the child, an element of the crime, by reference to the defendant as the child's father). Yet, a jurisdictional defect is present when the facts alleged do not constitute a prosecutable act under the laws of the State, and the distinction in more recent cases between due process and jurisdictional challenges has not altered this outcome.³

In State v. Wegner, 148 Idaho 270, 220 P.3d 1089 (2009), the defendant pled guilty to one count alleging multiple acts of lewd conduct with a minor under sixteen years of age. The information alleged that the acts took place during a period of time when the defendant was between thirteen and fourteen years of age. Wegner could not be tried or convicted for acts committed before he reached fourteen years of age. We noted that the court had no jurisdiction over acts committed before Wegner reached fourteen; however, we determined that the district court had subject matter jurisdiction for two reasons. First, the indictment alleged facts and dates that made a portion of the acts criminal, as they occurred after the defendant reached fourteen years of age. Second, by entering a guilty plea to one count covering all the criminal acts, the defendant admitted the fact of his age, making at least some of the acts contained within the single count a crime under applicable law. Thus, the sufficiency of a charging document to impart subject matter jurisdiction rests on, among others, the condition that the facts—alleged, proven, admitted to, or later inferred—constitute a crime. Though the Idaho Supreme Court affirmed Wegner's conviction on different grounds, finding the court was without jurisdiction to consider a motion to withdraw his guilty plea, it did not overrule or disagree with our jurisdictional analysis in regards to the charging document. In fact, in regards to Wegner's claim that the information was jurisdictionally deficient, the Court noted, "Although not pertinent to our analysis of the jurisdictional issue, it is worthy of note that Wegner admitted at his sentencing hearing that he committed one of the acts charged when he was between fourteen and fifteen years of age." Wegner, 148 Idaho at 272 n. 1, 220 P.3d at 1091 n. 1.

Turning to the indictment in this case, Count I of the amended indictment alleged Olin committed sexual abuse of a child under the age of...