State v. Passons
| Decision Date | 21 July 2017 |
| Docket Number | 2017 Opinion No. 39,Docket No. 44388 |
| Parties | STATE OF IDAHO, Plaintiff-Respondent, v. RUSSELL ALLEN PASSONS, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Karel A. Lehrman, Clerk
Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Richard S. Christensen, District Judge.
Denial of Rule 35 motion, affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Brian R. Dickson, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent.
____________________
Russell Allen Passons appeals from the district court's denial of his Idaho Criminal Rule 35 motion to correct an illegal sentence.
Passons was convicted of two counts of aggravated assault, Idaho Code §§ 18-901, 18-905, and one count of burglary, I.C. § 18-1401. He was sentenced to concurrent terms of five years determinate on the first count of aggravated assault, twenty years with ten years determinate on the second count of aggravated assault, and ten years with five years determinate for the burglary conviction. Passons appealed from his judgment of conviction, which this Court affirmed. State v. Passons, 158 Idaho 286, 346 P.3d 303 (Ct. App. 2015). Thereafter, he filed an I.C.R. 35(a) motion asking the court to correct what he alleges is an illegal sentence. At issue is the sentence for the second count of aggravated assault, which included a fifteen-year sentence enhancement under I.C. § 19-2520 for use of a deadly weapon--in this case a knife. Passons argues I.C. § 19-2520 does not authorize a longer sentence in his case. The district court denied his motion. Passons timely appeals.
On appeal, Passons asserts that his sentence is illegal and should be vacated. Specifically, he challenges the sentence enhancement on his second count of aggravated assault. Pursuant to Rule 35, the district court may correct an illegal sentence at any time. In an appeal from the denial of a motion under Rule 35 to correct an illegal sentence, the question of whether the sentence imposed is illegal is a question of law freely reviewable by the appellate court. State v. Josephson, 124 Idaho 286, 287, 858 P.2d 825, 826 (Ct. App. 1993); State v. Rodriguez, 119 Idaho 895, 897, 811 P.2d 505, 507 (Ct. App. 1991).
The State counters with several arguments, both on procedural and substantive grounds. First, it asserts the district court lacked jurisdiction to hear Passons' challenge to his underlying conviction, noting that while I.C.R. 35 allows a court to correct an illegal sentence at any time, it is not a mechanism to challenge an underlying judgment of conviction. The State argues Passons is essentially challenging his judgment of conviction on the use of a deadly weapon enhancement, not his sentence, and such a challenge would be untimely. The State also argues that because this Court has previously decided whether his conviction was lawful on direct appeal, his claim is barred under the doctrine of res judicata. However, these arguments fail. In State v. Burnight, 132 Idaho 654, 978 P.2d 214 (1999), the State asserted that a sentence enhancement issue was improperly raised through a Rule 35 motion; however, the Idaho Supreme Court disagreed, holding Burnight, 132 Idaho at 658-659, 978 P.2d at 218-219. Similarly, because this issue is properly raised under Rule 35 and is not an appeal of his conviction, the State's argument that the conviction has been appealed and therefore the issue of the sentence enhancement is barred by res judicata also fails.
The United States Supreme Court has addressed how to analyze where there may be cumulative punishments under two statutes. Initially, courts should apply the test as set forth inBlockburger v. United States, 284 U.S. 299 (1932), which provides: "The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Id. at 304. However, this is not always conclusive because as the Court noted, Missouri v. Hunter, 459 U.S. 359, 366 (1983) (quoting Whalen v. United States, 445 U.S. 684, 691-692 (1980)). Therefore, cumulative sentences are not permitted where the offenses are the same "unless elsewhere specially authorized by Congress." Id. at 367 (quoting Whalen, 445 U.S. at 693).
In Whalen, the petitioner was convicted of rape and killing in perpetration of rape and sentenced to consecutive terms of imprisonment. Whalen, 445 U.S. at 685. The United States Supreme Court held that the cumulative sentences in that case were not permitted under the Blockburger test since a conviction for killing in perpetration of rape cannot occur without proving all the elements of the offense of rape. Whalen, 445 U.S. at 693-694. The Court reversed and remanded the lower court's judgment because there was no specific authorization by the legislature to hold otherwise. Id. at 695. Conversely, in Albernaz v. United States, 450 U.S 333 (1981), the United States Supreme Court held that cumulative sentences for importing marijuana and conspiracy to distribute marijuana were permissible since they were not the same offense under Blockburger and since each crime required proof of a fact the other did not. Albernaz, 450 U.S. at 339. Subsequently, in Hunter the United States Supreme Court held that the petitioner's sentences for both robbery in the first degree and armed criminal action were specifically authorized by the legislature, and therefore cumulative sentences were permitted. Hunter, 459 U.S. at 368. The Court provided the following explanation:
Our analysis and reasoning in Whalen and Albernaz lead inescapably to the conclusion that simply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes. The rule of statutory construction noted in Whalen is not a constitutional rule requiring courts to negate clearly expressed legislative intent. Thus far, we have utilized that rule only to limit a federalcourt's power to impose convictions and punishments when the will of Congress is not clear. Here, the Missouri Legislature has made its intent crystal clear. Legislatures, not courts, prescribe the scope of punishments.
Hunter, 459 U.S. at 368. Therefore, whether a sentence may be had under each statute is a question of legislative intent. As noted in Hunter, "With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Id. at 366.
In this case the use of a deadly weapon is the basis for the underlying crime of aggravated assault, I.C. § 18-905, and the sentence enhancement, I.C. § 19-2520. The sentence enhancement statute provides that certain increases to the maximum potential penalty for particular crimes can be imposed when the crimes are committed using a firearm or other deadly weapon:
I.C. § 19-2520 (...
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