Appeal from the District Court of the Fifth Judicial District, State of Idaho, Gooding County. Hon. Robert J. Elgee, District Judge.
The opinion of the court was delivered by: Gutierrez, Judge
2012 Unpublished Opinion No. 692
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Order denying Idaho Criminal Rule 35 motion to correct illegal sentence, affirmed.
Albert Pete Veenstra, III appeals from the district court's denial of his Idaho Criminal Rule 35 motion to correct an illegal sentence. For the reasons set forth below, we affirm.
Following a jury trial, Veenstra was found guilty of two counts of lewd conduct with a minor child under sixteen. Idaho Code § 18-1508. According to the minutes of the sentencing hearing, the district court imposed a unified sentence of thirty years, with fourteen years determinate.*fn1
However, the written judgment of conviction, dated November 17, 2005, contained an error. It stated, at paragraph 4 on page 4, "It is further ordered that the Department of Correction take ALBERT PETE VEENSTRA III into custody, for the commencement of the one hundred eighty (180) day program, within fourteen (14) days of the date this Judgment is file stamped." An amended judgment of conviction was filed on November 23, 2005. The November 23 judgment and the November 17 judgment are identical, however.
Veenstra filed a motion to correct his sentence pursuant to Rule 35, contending he was not afforded the opportunity to participate in the "rider" program at the Department of Correction. In support of his motion, Veenstra submitted a copy of the November 23 judgment bearing a large "X" through paragraph 4 on page 4 with a handwritten notation in the margin: per Matt J. Elgee Clerk 11/29/05 R.S.
Veenstra contends the alteration was made by the Department of Correction. The district court denied the motion on the ground that it had not retained jurisdiction, stating Veenstra was never sentenced to, nor did he participate in, the 180 day retained jurisdiction "rider" program.
According to the judge's order, the handwritten notation on the one copy of the amended judgment apparently referred to Matt Fredack, who was Judge Elgee's law clerk at the time of the judgment. However, who made the notation, and when, is not clear. Veenstra appealed the denial of his Rule 35 motion. Veenstra also filed an objection to the clerk's record and a motion to augment. In this motion, Veenstra requested the record on appeal include the November 23 judgment with the handwritten corrections and "X" marking. The Idaho Supreme Court suspended the appeal, pending a ruling by the district court on the motion to augment. The district court granted the motion to augment the record and, thus, the record submitted to this Court on appeal includes all of the above referenced judgments. However, from the record presented to us, the only copy of the amended judgment with the handwritten corrections and "X" marking is the copy supplied by Veenstra.
In an appeal from the denial of a motion under Rule 35 to correct an illegal sentence, the question of whether the sentence imposed is illegal is a question of law freely reviewable by the appellate court. State v. Josephson, 124 Idaho 286, 287, 858 P.2d 825, 826 (Ct. App. 1993); State v. Rodriguez, 119 Idaho 895, 897, 811 P.2d 505, 507 (Ct. App. 1991). Under Idaho law, "the only legally cognizable sentence in a criminal case is the 'actual oral pronouncement in the presence of the defendant.' The legal sentence consists of the words pronounced in open court by the judge, not the words appearing in the written order of commitment." State v. Allen, 144 Idaho 875, 877-78, 172 P.3d 1150, 1152-53 (Ct. App. 2007) (quoting State v. Wallace, 116 Idaho 930, 932, 782 P.2d 53, 55 (Ct. App. 1989)). "If an order of commitment does not accurately represent the court's oral sentence pronouncement that constitutes the judgment, it is manifestly proper to correct the error under Rule 36 so the written expression is ...