Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Thomas F. Neville, District Judge.
The opinion of the court was delivered by: Melanson, Judge
Judgment of conviction and concurrent sentences for robbery; aggravated battery, enhanced for use of a firearm; and burglary, enhanced for use of a firearm, affirmed in part, vacated in part, and remanded.
Joshua L. McGiboney appeals from his judgment of conviction and sentences for robbery; aggravated battery, enhanced for use of a firearm; and burglary, enhanced for use of a firearm. McGiboney argues that the district court erred by applying two enhancements for the use of a firearm during the commission of a felony. McGiboney also asserts that his sentences are excessive. For the reasons set forth below, we affirm in part, vacate in part, and remand.
The state charged McGiboney with robbery, I.C. §§ 18-6501, 18-6502; two counts of aggravated battery, I.C. §§ 18-903(a), 18-907(a); and burglary, I.C. § 18-1401. The state also sought sentencing enhancements for the use of a firearm during the robbery, the aggravated battery, and the burglary pursuant to I.C. § 19-2520. A jury found McGiboney not guilty of one of the aggravated battery counts, but returned guilty verdicts on all of the other charges. By special verdict, the jury also found that McGiboney had used a firearm in committing the robbery, the aggravated battery, and the burglary. The district court imposed concurrent sentences of: (1) a unified life term, with a minimum period of confinement of fifteen years, for robbery; (2) a unified term of thirty years, with a minimum period of confinement of fifteen years, for aggravated battery; and (3) a unified term of twenty-five years, with a minimum period of confinement of fifteen years, for burglary.*fn1 The sentences for aggravated battery and burglary each received a firearm enhancement pursuant to I.C. § 19-2520. The district court did not enhance the robbery sentence. In imposing the two enhanced sentences pursuant to I.C. § 19- 2520, the district court did not make a finding as to whether the aggravated battery and burglary arose out of an indivisible course of conduct under I.C. § 19-2520E. McGiboney appeals.
McGiboney argues that the district court erred by applying two enhancements for the use of a firearm during the commission of a felony. He contends that I.C. § 19-2520E prohibits the application of two enhancements because the aggravated battery and burglary arose out of an indivisible course of conduct.*fn2 McGiboney argues, for the first time on appeal, that the district court erred when it failed to explicitly find whether the two offenses were indivisible under I.C. § 19-2520E. The state responds that I.C. § 19-2520E provides an affirmative defense that McGiboney waived by failing to raise it prior to sentencing. This Court exercises free review over the application and construction of statutes. State v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003).
The Idaho Supreme Court recently considered a claim that the district court did not make an explicit finding on I.C. § 19-2520E in State v. Peregrina, 151 Idaho 538, 540, 261 P.3d 815, 817 (2011), holding:
Idaho law allows for certain crimes to be punished more severely when they are committed using a firearm. Idaho Code § 19-2520. Aggravated battery is one of those crimes. Id. If a jury finds that a defendant used a firearm in the commission of a battery, his sentence may be increased by a maximum fifteen years. Id. The legislature used "shall" in the statute, making this a mandatory increase to the maximum penalty. Id.
However, this statute is not without limitation. Another section of the code provides that a defendant can only be subject to one increased penalty if the "crimes arose out of the same indivisible course of conduct . . . ." Idaho Code § 19-2520E. Thus, if two crimes are committed using a firearm, but those crimes were committed in the same indivisible course of conduct, a defendant can only be sentenced with one enhancement penalty.
It is undisputed that the question of divisibility is one of fact. State v. Johns, 112 Idaho 873, 882, 736 P.2d 1327, 1336 (1987). Under Apprendi, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 454-55 (2000). The question, then, is whether a finding of divisibility or indivisibility increases the penalty ...