Appeal from the District Court of the Fifth Judicial District, State of Idaho, Gooding County. Hon. John K. Butler, District Judge.
The opinion of the court was delivered by: Lansing, Judge
2012 Unpublished Opinion No. 582
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Order denying motion to withdraw guilty plea, affirmed.
Luke Alan Walsh appeals from his conviction for conspiracy to violate the Uniform Controlled Substances Act. He asserts that the district court erred by denying his motion to withdraw his guilty plea. We affirm.
On March 8, 2011, Jordan Dunn's probation officer discovered a text message on Dunn's cell phone asking, "What you got?" It was later determined that the message was sent by Walsh. Another officer used Dunn's phone to respond to Walsh's message. The officer negotiated, via text messages, the sale of a half gram of cocaine for forty dollars and arranged to meet Walsh at a nearby church. Believing that he had arranged to purchase cocaine from Dunn, Walsh arrived at the church a short time later carrying forty dollars and his cell phone, which the officers used to identify him as the individual they had been communicating with. Walsh was arrested and admitted that he went to the church for the purpose of purchasing cocaine. Walsh was charged with conspiracy to violate the Uniform Controlled Substances Act, Idaho Code §§ 37-2732(f), 18-1701. Count I of the information alleged that Walsh "did willfully and knowingly combine, conspire, confederate, and agree with another person to possess" cocaine, and that Walsh sent text messages to Dunn's phone to arrange the transaction and thereafter went to the church with the agreed upon amount of forty dollars in furtherance of the conspiracy. Pursuant to a plea agreement, Walsh pleaded guilty to the charge of conspiracy and the State recommended that Walsh participate in drug court. The court accepted Walsh's plea and the State's recommendation, but Walsh's participation in drug court was terminated when he did not attend the required proceedings, and his case was transferred back to the district court for further proceedings. Walsh then filed a motion to withdraw his guilty plea and asserted that he could not be guilty of conspiracy with a law enforcement officer. The district court denied the motion, and Walsh appeals.
Walsh asserts that the district court should have granted his motion to withdraw his guilty plea because the district court lacked jurisdiction to accept the plea. Walsh frames the issue both as a jurisdictional challenge, and as an argument that Walsh presented a "just reason" to withdraw the plea.
Subject matter jurisdiction in a criminal case arises from the filing of a charging document alleging that an offense was committed within the state of Idaho. Idaho Criminal Rule 12(b)(2); State v. Jones, 140 Idaho 755, 757-58, 101 P.3d 699, 701-02 (2004); State v. Rogers, 140 Idaho 223, 228, 91 P.3d 1127, 1132 (2004); State v. Davis, 144 Idaho 276, 278, 159 P.3d 913, 915 (Ct. App. 2007). A jurisdictional challenge to a charging document may be raised at any time, including for the first time on appeal. Jones, 140 Idaho at 758, 101 P.3d at 702. Nevertheless, where an objection that a charging document is jurisdictionally deficient is not made before trial or entry of a guilty plea, liberal construction standards apply. Id. at 759, 101 P.3d at 703; State v. Murray, 143 Idaho 532, 536 n.3, 148 P.3d 1278, 1282 n.3 (Ct. App. 2006). In that circumstance, the charging document will be upheld "unless it is so defective that it does not, by any fair or reasonable construction, charge an offense for which the defendant is convicted." Jones, 140 Idaho at 759, 101 P.3d at 703 (quoting State v. Cahoon, 116 Idaho 399, 400, 775 P.2d 1241, 1242 (1989)). "This liberal standard confers upon a reviewing court 'considerable leeway to imply the necessary allegations from the language of the Information.'" Davis, 144 Idaho at 278, 159 P.3d at 915 (quoting State v. Robran, 119 Idaho 285, 287, 805 P.2d 491, 493 (Ct. App. 1991)). 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). It is a "rare circumstance where a charging document fails, under even the most liberal construction, to charge an offense and therefore is insufficient to confer subject matter jurisdiction on an Idaho court." Murray, 143 Idaho at 537, 148 P.3d at 1283.
Walsh was charged with criminal conspiracy. A criminal conspiracy is committed when "two (2) or more persons combine or conspire to commit any crime or offense prescribed by the laws of the state of Idaho, and one (1) or more of such persons does any act to effect the object of the combination or conspiracy." I.C. § 18-1701. See also I.C. § 37-2732(f). The information in this case alleged that Walsh "did willfully and knowingly combine, conspire, confederate, and agree with another person to possess . . . cocaine . . . in violation of I.C. sections 37-2732, 18- 1701" and that Walsh did various acts "to effect the objects thereof" including making arrangements to purchase cocaine and traveling to the agreed upon location with the agreed upon purchase price.
Walsh asserts that the information did not charge him with a crime because the person with whom he allegedly conspired with was a police officer and "a conspiracy cannot be committed with a law enforcement officer." Thus, he asserts, the court lacked subject matter jurisdiction. Walsh relies upon two federal circuit court decisions, United States v. Escobar de Bright, 742 F.2d 1196 (9th Cir. 1984) and Sears v. United States, 343 F.2d 139 (5th Cir. 1965). In each of those cases, the courts stated that "as it takes two to conspire, there can be no indictable conspiracy with a government informer who secretly intends to frustrate the conspiracy." Escobar de Bright, 742 F.2d at 1198; Sears, 343 F.2d at 142. In both Escobar de Bright and Sears, the courts determined that the question whether the defendant was guilty when the defendant dealt with a government agent was a matter for the jury. See Escobar de Bright, 742 F.2d at 1201 (holding that the defendant was entitled to a jury instruction); Sears, 343 F.2d at 142 ...