Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. David C. Nye, District Judge.
The opinion of the court was delivered by: Melanson, Judge
Judgment of conviction and sentence for possession of a controlled substance, affirmed; judgment of conviction and sentences for burglary and assault with intent to commit a serious felony, both enhanced for being a persistent violator, affirmed in part and modified in part.
Dean Clay Miller, Jr. appeals from his judgment of conviction and sentences for possession of a controlled substance, burglary, and assault with intent to commit a serious felony, as well as enhancements for being a persistent violator. For the reasons set forth below, we affirm in part and modify in part.
Under the influence of methamphetamine in the middle of the night, Miller believed (according to his account of the events) that he was being chased by people who were trying to harm him. Miller entered a home wearing a mask and gloves and awoke a husband and wife in their bed while brandishing a shotgun that he had found in the house. The couple's young children were also in the house. Miller questioned the couple concerning their employment and finances and told them that he planned to wait until morning and would then force them to withdraw money from their accounts. At one point, Miller became distracted and the husband was able to sufficiently overpower him so as to allow his wife to escape with one of their children. Miller fled to the garage, and the husband left the home with his remaining children. A neighbor arrived with a pistol to assist the victims. After a brief standoff, Miller put the shotgun down. However, when police arrived, Miller had barricaded himself in the garage and was holding a knife to his neck and threatening suicide. Miller was eventually subdued and arrested.
Miller was charged with possession of a controlled substance, I.C. § 37-2732(1); burglary, I.C. §§ 18-1401 and 18-1403; first degree kidnapping, I.C. § 18-4502; and assault with intent to commit a serious felony, I.C. § 18-909; and the state sought a sentence enhancement for use of a firearm during the commission of a felony, I.C. § 19-2520. Later, the state filed a notice that it would also seek a persistent violator enhancement pursuant to I.C. § 19-2514. The district court granted the state's motion to amend the information to reflect the persistent violator enhancement, although no amended information was ever filed. Miller pled guilty to possession of a controlled substance, burglary, and assault with intent to commit robbery. Miller also admitted to being a persistent violator. The state dismissed the remaining charges. The district court sentenced Miller to a determinate term of seven years for possession of a controlled substance. The district court also sentenced Miller to unified terms of life imprisonment, with minimum periods of confinement of twenty-eight years, for burglary and assault with intent to commit robbery, which were both enhanced pursuant to the persistent violator statute. The district court ordered Miller's sentences to run concurrently. Miller appeals.
Miller argues, for the first time on appeal, that the district court lacked subject matter jurisdiction to impose the persistent violator enhancements. Whether a court lacks jurisdiction is a question of law, over which this Court exercises free review. State v. Jones, 140 Idaho 755, 757, 101 P.3d 699, 701 (2004). In a criminal case, the filing of an information alleging that an offense was committed within the State of Idaho confers subject matter jurisdiction. Id. at 757- 58, 101 P.3d at 701-02. Because the information provides subject matter jurisdiction to the district court, the district court's jurisdictional power depends on the charging document being legally sufficient to survive challenge. Id. at 758, 101 P.3d at 702. Whether a charging document conforms to the requirements of law and is legally sufficient is also a question of law subject to free review. Id.
A challenge asserting the charging information is jurisdictionally deficient is never waived and may be raised at any time, including for the first time on appeal. Id. at 758, 101 P.3d at 702. However, a violation of due process can be waived if not presented below. I.C.R. 12(b)(2); Jones, 140 Idaho at 758, 101 P.3d at 702. When the information's jurisdictional sufficiency is challenged after trial, it will be upheld unless it is so defective that it does not, by any fair or reasonable construction, charge the offense for which the defendant was convicted. Jones, 140Idaho at 759, 101 P.3d at 703; State v. Robran, 119 Idaho 285, 287, 805 P.2d 491, 493 (Ct. App. 1991). A reviewing court has considerable leeway to imply the necessary allegations from the language of the information. Jones, 140 Idahoat 759, 101 P.3d at 703; Robran, 119 Idaho at 287, 805 P.2d at 493.In short, when considering a post-trial challenge to the jurisdictional sufficiency of the information, a reviewing court need only determine that, at a minimum, the information contains a statement of the territorial jurisdiction of the court below and a citation to the applicable section of the Idaho Code. State v. Quintero, 141 Idaho 619, 622, 115 P.3d 710, 713 (2005).
In this case, Miller argues that the district court did not have jurisdiction to impose the enhancements because they were not included in the original or amended information. Miller points out that the state failed to make a formal motion to amend the information, even though the district court entered an order granting the state's motion. While subject matter jurisdiction and the Idaho Constitution require offenses to be alleged in a charging document, I.C. § 19-2514 does not create or define a new or independent crime. See State v. Lopez, 107 Idaho 826, 828, 693 P.2d 472, 474 (Ct. App. 1984). Rather, it renders a person convicted liable to punishment in excess of that which might have been otherwise imposed. State v. Johnson, 86 Idaho 51, 57, 383 P.2d 326, 329 (1963). Thus, the issue is not one of jurisdiction, but whether Miller was afforded due process through proper notice of the state's intent to seek the enhanced penalties. A brief review of the record reveals that Miller had more than adequate notice of the state's intent to seek the persistent violator enhancements, including, among other things, Miller's decision to admit to being a persistent violator as part of his plea agreement. Therefore, the district court had subject matter jurisdiction to sentence Miller as a persistent violator, and Miller's due process rights were not violated for lack of notice.
Miller next argues that his sentences are excessive. An appellate review of a sentence is based on an abuse of discretion standard. State v. Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal, the appellant has the burden to show that it is unreasonable, and thus a clear abuse of discretion. State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Jackson, 130 Idaho 293, 294, 939 P.2d 1372, 1373 (1997); State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it appears at the time of sentencing that confinement is necessary "to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a given case." State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed an excessively harsh sentence, we conduct an independent review of the record, having regard for the nature of the offense, the character of the offender, and the protection of the public interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). When reviewing the length of a sentence, we consider the defendant's entire sentence. State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007).
This Court has held that the criteria of retribution and deterrence bear directly on the minimum period of confinement, which is the judicially-determined "price" of the crime. State v. Gauna, 117 Idaho 83, 89, 785 P.2d 647, 653 (Ct App. 1989). The minimum period also carries implications for rehabilitation and the protection of society because it establishes a prospective time frame for institutional correction programs and for evaluation of the prisoner's eventual suitability for parole. State v. Sanchez, 115 Idaho at 776, 777-78, 769 P.2d 1148, 1149-50 (Ct. App. 1989).
As the foregoing statement of our standard of review discloses, there are no definitive parameters to be applied by an appellate court in evaluating a criminal defendant's claim that his or her sentence is excessive, and our review entails great deference to the decision of the sentencing court. Nevertheless, sentence reviews have long been conducted by the Idaho appellate courts, and it is a responsibility with which we are charged. See State v. Adams, 99 Idaho 75, 76-79, 577 P.2d 1123, 1124-27 (1978) (Bistline, J. dissenting) (discussion of the history of appellate review of sentences in this state). While the task is not an easy or well-defined one, it nevertheless has significant purposes. The Idaho Supreme Court has described the general objectives of appellate sentence review as:
(i) to correct the sentence which is excessive in length, having regard to the nature of the offense, the character of the offender, and the protection of the public interest;
(ii) to facilitate the rehabilitation of the offender by affording him an opportunity to assert grievances he may have regarding his sentence;
(iii) to promote respect for law by correcting abuses of the sentencing power and by increasing the fairness ...