State v. Pizzuto, 49489

CourtUnited States State Supreme Court of Idaho
Writing for the CourtMOELLER, Justice.
PartiesSTATE OF IDAHO, Plaintiff-Appellant, v. GERALD ROSS PIZZUTO, JR., Defendant-Respondent. GERALD ROSS PIZZUTO, JR., Petitioner-Respondent, v. STATE OF IDAHO, Respondent-Appellant.
Docket Number49489,49531
Decision Date23 August 2022

STATE OF IDAHO, Plaintiff-Appellant,

GERALD ROSS PIZZUTO, JR., Defendant-Respondent.

GERALD ROSS PIZZUTO, JR., Petitioner-Respondent,

STATE OF IDAHO, Respondent-Appellant.

Nos. 49489, 49531

Supreme Court of Idaho

August 23, 2022

Appeal from the District Court of the Second Judicial District of the State of Idaho, Idaho County. Jay P. Gaskill, District Judge.

The judgments of the district court are reversed and the cases are remanded.

Lawrence G. Wasden, Idaho Attorney General, Boise, for Appellant. L. LaMont Anderson argued.

Federal Defender Services of Idaho, Boise, for Respondent. Jonah Joshua Horwitz argued.

MOELLER, Justice.

Gerald Ross Pizzuto, Jr., was convicted of two brutal murders and sentenced to death in 1986. After the Idaho Commission of Pardons and Parole voted 4-3 to recommend that Pizzuto's death sentence be commuted to life without the possibility of parole, Idaho Governor Brad Little rejected the recommendation, thereby allowing Pizzuto's death sentence to remain in effect. Pizzuto challenged the Governor's action by filing an Idaho Criminal Rule 35(a) motion to correct


his sentence and a sixth petition for post-conviction relief. The district court granted both Pizzuto's motion and his petition upon finding Idaho Code section 20-1016, the statute authorizing the Governor's rejection of the Commission's recommendation, was unconstitutional.

The State of Idaho appealed and asked that this matter be heard on an expedited basis, which this Court granted. Governor Little asked to file an amicus curiae brief in support of the State's position, which was also granted. For the reasons set forth below, we reverse the district court and remand for further proceedings consistent with this opinion.

I. Background

A. Factual and Procedural History

An Idaho County jury convicted Gerald Pizzuto of two counts of first-degree murder for the 1985 killings of Berta and Del Herndon. He was sentenced to death on both counts. This Court affirmed the sentences in 1991. State v. Pizzuto, 119 Idaho 742, 810 P.2d 680 (1991). Prior to the instant case, Pizzuto has filed five successive post-conviction petitions, all of which were denied. He was also denied federal habeas corpus relief from his convictions and sentences. See, e.g., Pizzuto v. Yordy, 947 F.3d 510 (9th Cir. 2019). Following this Court's most recent denial of post-conviction relief in Pizzuto v. State, 168 Idaho 542, 484 P.3d 823 (2021), Pizzuto's stay of execution was lifted and the district court issued the death warrant on May 6, 2021.

Approximately two weeks prior to the issuance of the death warrant, Pizzuto submitted an application for a clemency hearing with the Idaho Commission of Pardons and Parole (the "Commission"). At 66 years old, Pizzuto has been diagnosed with terminal bladder cancer, heart disease, diabetes with related nerve damage, and receives hospice care. He is also confined to a wheelchair. In court pleadings dating back to December 2019, Pizzuto's physicians estimated his life expectancy at only 12 months. The clemency application also recounted Pizzuto's childhood- including appalling accounts of physical and sexual abuse-as well as his current, declining health conditions.

In May 2021, the Commission granted Pizzuto's request for a commutation hearing, scheduling it for its November session. Based on the parties' joint motion, the district court ordered a stay of execution until the Commission rendered a decision. On December 30, 2021, the Commission issued its recommendation: "The Commission is recommending by a majority decision that Governor Little grant the commutation of Gerald Ross Pizzuto's two death sentences . . . to life without the possibility of parole." Four commissioners voted in favor of the


recommendation, while three commissioners opposed it. Pursuant to Idaho Code section 20-1016, the Commission forwarded this recommendation to Governor Little, explaining the majority vote was "one of mercy due to Mr. Pizzuto's current medical condition and evidence of his decreased intellectual functioning." Because Pizzuto has advanced terminal cancer, in addition to other medical conditions, the majority concluded that Pizzuto's condition "leaves him as very little threat to others." Three commissioners dissented, explaining "[t]he cruel and heinous nature of Mr. Pizzuto's crimes and his lack of responsibility, accountability, and credibility warrant imposition of the original sentence imposed."

Upon receiving the Commission's recommendation, Governor Little denied it in writing that same day. Pizzuto then filed two motions before the district court: a motion to preclude the issuance of a death warrant and a motion to correct his sentence under Idaho Criminal Rule 35(a). Pizzuto argued before the district court that his death sentences were illegal under the Idaho Constitution due to the Commission's decision recommending commutation, and that "Article IV, section 7 of the Idaho Constitution places the commutation power exclusively in the hands of the Commission." While the Governor "claimed to have overruled the Commission's determination," Pizzuto asserts that "he had no authority to do so under the Idaho Constitution."

The district court heard Pizzuto's motions on January 20, 2022, and subsequently granted both. The court first determined that the constitutional language, "only as provided by statute," was ambiguous. It agreed with Pizzuto's interpretation and ultimately concluded that the legislature cannot "usurp the Commission's power and shift their decision making authority to the governor." Thus, the court concluded that Pizzuto's death sentences were "illegal" "in light of the Commission's decision that the sentences should be commuted to life in prison without parole." The State timely appealed.

Overlapping the pending appeal, Pizzuto also filed a sixth successive post-conviction relief action pursuant to Idaho Code section 19-4901(a)(3). The State filed a motion for summary dismissal of the post-conviction petition. The district court denied the State's motion and granted Pizzuto's petition "because the death sentences exceed the maximum authorized by law." The district court concluded that post-conviction relief was appropriate on the same grounds "set forth in the Rule 35 motion," and relied on its earlier constitutional analysis to grant Pizzuto post-conviction relief. The State again timely appealed the district court's order. This Court then ordered that both matters be consolidated for appeal.


B. Constitutional History of the Commutation Power in Idaho

Like most states, in Idaho the power to pardon or commute a sentence has long been associated with the executive branch. It is set forth in Article IV, section 7 of the Idaho Constitution as part of the powers delegated to the executive branch by the people and "was adopted at the 1889 constitutional convention without debate or amendment." State v. Winkler, 167 Idaho 527, 531, 473 P.3d 796, 800 (2020). To govern the use of this power, the Idaho Constitution originally created a "board of pardons" (the "Board"), which then consisted of only three members: the Governor, Secretary of State, and Attorney General. Ex parte Prout, 12 Idaho 494, 497, 86 P. 275, 275 (1906). Notably, the three original members were all constitutional officers elected by the people. Article IV, section 7 of the Idaho Constitution historically provided:

The Governor, Secretary of State, and Attorney General shall constitute a board to be known as the "Board of Pardons." Said board or a majority thereof shall have power to remit fines and forfeitures, and to grant commutations and pardons after conviction and judgment either absolutely or upon such conditions as they may impose in all cases of offenses against the state except treason or conviction on impeachment.

Id. (quoting Idaho Const. art. IV, § 7 (subsequently amended in 1945 and 1986)). Thus, the original intent of the framers of the Idaho Constitution was for the Governor to play a major role in all clemency matters presented to the Board.

In 1942 and 1944, two proposed amendments to Article IV, section 7 were adopted by the legislature, but were defeated by a majority vote of the electorate. These amendments proposed dissolving the Board and vesting all commutation powers with only the governor. Instead, the first approved amendment to Article IV, section 7 of the Idaho Constitution came in 1945, with Idaho voters ratifying the amendment on November 5, 1946. The pardoning power of the Board was amended as follows:

From and after July 1, 1947, such board as may hereafter be created or provided by legislative enactment shall constitute a board to be known as the board of pardons. Said board, or a majority thereof, shall have power to remit fines and forfeitures, and to grant commutations and pardons after conviction and judgment, either absolutely or upon such conditions as they may impose in all cases of offenses against the state except treason or conviction on impeachment.

S.J.Res. 3, S.L. 1945, 400-01. As a result, the Board no longer consisted of the governor, secretary of state, and attorney general. Rather, the amended Idaho Constitution permitted the legislature to create a new board of pardons whose appointed members would have the power "to grant


commutations and pardons after conviction and judgment." Id. See also Carman v. State, Comm'n of Pardons & Parole, 119 Idaho 642, 643, 809 P.2d 503, 504 (1991).

To implement these changes, the legislature created the three-member State Board of Correction in 1947 to "constitute the State Board of Pardons," having "all rights, powers and authority of said Board of Pardons" under the Idaho Constitution. H.B. 76, S.L. 1947, ch. 53, §§ 1 and 10 (then designated as I.C. § 20-201). In 1969, the legislature enacted Idaho Code section 20-210, which...

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