State v. Passons

• Decision Date: 01 May 2018
• Docket Number: Docket No. 45455
• Citation: 417 P.3d 240,163 Idaho 643
• Court: Idaho Supreme Court
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Russell Allen PASSONS, Defendant-Appellant.

163 Idaho 643

417 P.3d 240

STATE of Idaho, Plaintiff-Respondent,

v.Russell Allen PASSONS, Defendant-Appellant.

Docket No. 45455

Supreme Court of Idaho, Boise, February 2018 Term.

Filed: May 1, 2018

Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant. Brian R. Dickson argued.

Honorable Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Russell J. Spencer argued.

BRODY, Justice.

This appeal arises from Russell Allen Passons's motion to correct an illegal sentence pursuant to Idaho Criminal Rule 35. The district court denied the motion on the basis of controlling precedent of the Court of Appeals. The Court of Appeals relied on that precedent to affirm the district court's decision. We granted Passons's petition for review, and now affirm the decision of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2012, Passons was charged with two counts of aggravated assault and a third count of burglary. He was later convicted by a jury of all three counts. Relevant for this appeal are the allegations particular to one of the aggravated assault counts under Idaho Code section 18-905 and a corresponding request for sentencing enhancement under Idaho Code section 19-2520. Those allegations read as follows (emphasis added):

That the defendant, Russell Allen Passons, on or about the 21st day of June, 2012, in the County of Kootenai, State of Idaho, did intentionally, unlawfully and with apparent ability threaten by word or act to do violence upon the person of [victim's name] with a deadly weapon, to-wit: a knife , which created a well-founded fear in said person that such violence was imminent;

....

The Prosecuting Attorney further informs the Court that the defendant, Russell Allen Passons, on or about the 21st day of June, 2012, in the County of Kootenai, State of Idaho, did use a deadly weapon in the commission of a felony, to-wit: by Passons using a knife to commit the felony crime(s) of Aggravated Assault , all of which is contrary to the form, force and effect of the statute in such case made and provided and against the peace and dignity of the People of the State of Idaho.

Following his conviction, Passons was sentenced to a term of twenty years, with ten years fixed, on the relevant count, which reflects that the district court enhanced the sentence pursuant to section 19-2520. The district court also imposed concurrent sentences of five years, all fixed, on the other aggravated assault count, and ten years, with five years fixed, on the burglary count. Passons appealed the judgment of conviction, which was ultimately affirmed by the Court of Appeals. State v. Passons , 158 Idaho 286, 346 P.3d 303 (Ct. App. 2015).

From there, Passons filed a Rule 35 motion, contending that his enhanced sentence was illegal. The district court denied Passons's motion after finding that it was bound by the Court of Appeals’ decision in State v. Hernandez , 120 Idaho 653, 818 P.2d 768 (Ct. App. 1991). Passons appealed. The Court of Appeals affirmed the district court, holding that the decision was proper and that, under the rule of stare decisis, the decision in Hernandez was not "manifestly wrong" such that the court was required to overturn its precedent. State v. Passons , No. 44388, 2017 WL 3091747 (Ct. App. July 21, 2017). Thereafter, we granted Passons's petition for review.

II. STANDARD OF REVIEW

"In cases that come before this Court on a petition for review of a Court of Appeals decision, this Court gives serious consideration to the views of the Court of Appeals, but directly reviews the decision of the lower court." State v. Garcia-Rodriguez , 162 Idaho 271, 274, 396 P.3d 700, 703 (2017) (quoting State v. Oliver , 144 Idaho 722, 724, 170 P.3d 387, 389 (2007) ). "This Court thus acts as if the case were on direct appeal from the district court." Id. (quoting State v. James , 148 Idaho 574, 576, 225 P.3d 1169, 1171 (2010) ).

Idaho Criminal Rule 35 enables a trial court to "correct a sentence that is illegal from the face of the record at any time." I.C.R. 35(a). Whether this rule is implicated generally raises a question of law, for which this Court exercises free review. State v. Clements , 148 Idaho 82, 84, 218 P.3d 1143, 1145 (2009) (citing State v. Farwell , 144 Idaho 732, 735, 170 P.3d 397, 400 (2007) ).

III. ANALYSIS

Passons asks this Court to consider whether the district court erred in denying his Rule 35 motion. Before turning to the substantive arguments underlying that ruling, we must first address a pair of procedural objections raised by the State in its opposition to the motion.

A. Passons's motion was not barred by the State's procedural objections for lack of jurisdiction and res judicata.

In its response on appeal, the State contends that the district court lacked jurisdiction to consider Passon's motion because the motion was, in substance, an untimely appeal from his judgment of conviction. The State also argues that even if the district court had jurisdiction, the motion was barred under res judicata due to Passons's prior appeal of the judgment of conviction. The State's arguments are not persuasive.

Starting with the jurisdictional issue, this Court considered an identical argument from the State in State v. Kerrigan , 143 Idaho 185, 141 P.3d 1054 (2006). In that case, we explained that "[a]lthough a judgment of conviction and the resulting sentence are related matters, they are not identical issues. The fact that Kerrigan challenges the legality of his sentence is not, as the State suggests, tantamount to an attack on his underlying conviction." Id. at 187, 141 P.3d at 1056. Review of Passons's motion and his briefing on appeal leads to the same conclusion—namely, he is not attacking the underlying conviction, but instead timely challenging the legality of his sentence within the scope of Rule 35.

The State's second argument is also without support. The State's theory of res judicata relies on the same logic that the State uses in its jurisdictional challenge: that is, Passons is merely attempting to once again appeal the judgment of conviction. Recognizing that this logic is without factual support, the State's contention that Passons is precluded from again raising arguments against his conviction is a nonstarter. Given this, and when recognizing the actual issue presented by Passons's motion, this Court's precedent undermines the State's argument for either issue or claim preclusion. Ticor Title Co. v. Stanion , 144 Idaho 119, 123–24, 157 P.3d 613, 617–18 (2007) ; State v. Rhoades , 134 Idaho 862, 863, 11 P.3d 481, 482 (2000).

B. The enhanced sentence authorized by Idaho Code section 19-2520 does not give rise to double jeopardy concerns.

Moving to the primary issue on appeal, Passons argues that his enhanced sentence for the aggravated assault conviction violated his constitutional protection from double jeopardy. The United States and Idaho Constitutions each afford the right to be protected from double jeopardy. The Fifth Amendment of the U.S. Constitution states that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V ; Benton v. Maryland , 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) (incorporating right through the Fourteenth Amendment). Article I, section 13 of the Idaho Constitution reads similarly: "No person shall be twice put in jeopardy for the same offense ...." Under both Constitutions, the prohibition against double jeopardy breaks down into three specific protections: (1) against a second prosecution for the same offense after acquittal, (2) against a second prosecution for the same offense after conviction, and (3) against multiple punishments for the same offense. Ohio v. Johnson , 467 U.S. 493, 498, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) (quoting North Carolina v. Pearce , 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) ); State v. Avelar , 132 Idaho 775, 778, 979 P.2d 648, 651 (1999).

Passons contends that the district court violated the third guarantee by subjecting him to multiple punishments for the same offense when it applied Idaho Code section 19-2520 to enhance his sentence. Section 19-2520 provides for sentencing enhancement of fifteen years when certain enumerated offenses are committed using a firearm or other deadly weapon. I.C. § 19-2520. Amongst the underlying offenses is aggravated assault, conviction of which is punishable up to five years without enhancement. I.C. §§ 18-905, 18-906.

This Court has previously explained that section 19-2520 "does not prescribe a new offense but provides only for the imposition of additional punishment" upon conviction of an underlying offense where a firearm or other deadly weapon was involved. State v. Smith , 103 Idaho 135, 137, 645 P.2d 369, 371 (1982) (citing State v. Cardona , 102 Idaho 668, 690, 637 P.2d 1164, 1166 (1981) ). Because section 19-2520 only provides for additional punishment and not an additional offense, the Court concluded in Smith that "[a] sentence imposed under [the statute] does not create double jeopardy problems." Id. ; see also Farwell , 144 Idaho at 736, 170 P.3d at 401 (noting that a sentencing enhancement "is not a new offense" and "not a separate sentence"); State v. Burnight , 132 Idaho 654, 658–59, 978 P.2d 214, 218–19 (1999) (explaining that the "enhancement is an additional term and is part of a single sentence for the underlying crime").

Shortly after our decision in Smith , the U.S. Supreme Court issued its opinion in Missouri v. Hunter , 459 U.S. 359, 368, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), wherein it explained that additional or "cumulative" punishment imposed through two statutes that proscribe the same conduct constituted double jeopardy absent legislative authorization for punishment of this nature. The Court's decision in Hunter indicates that our consideration of double jeopardy through multiple punishments is predicated on two issues of legislative intent. First, the...