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State of Idaho v. Albert Ray Moore

December 19, 2012

STATE OF IDAHO,
PLAINTIFF-RESPONDENT,
v.
ALBERT RAY MOORE,
DEFENDANT-APPELLANT.



Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael R. McLaughlin, District Judge.

The opinion of the court was delivered by: Lansing, Judge

Stephen W. Kenyon, Clerk 2012 Unpublished Opinion No. 764
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Order denying motion to correct illegal sentence, affirmed.

Albert Ray Moore appeals from the district court's order denying his motion to correct his sentence for felony driving under the influence, Idaho Code § 18-8005(5), which Moore contends is illegal. We affirm.

This is Moore's third appeal in this case. In State v. Moore, 152 Idaho 203, 203-04, 268 P.3d 471, 471-72 (Ct. App. 2011), this Court described the prior proceedings in this case and a companion DUI case as follows:

In two cases filed in 2006 and 2007, Moore was charged with driving under the influence (DUI). In each case, the charge was enhanced to a felony pursuant to Idaho Code § 18-8005(5) on grounds that Moore had twice previously been convicted of DUI within the preceding ten years, including a conviction in North Dakota. In both Idaho DUI cases, Moore challenged the State's reliance on the North Dakota conviction on the contentions that it did not qualify as a "substantially conforming foreign criminal conviction" under Idaho Code § 18- 8005(5), and that the conviction was constitutionally defective. After the district court denied Moore's motion to dismiss the present case on either basis, Moore entered a conditional guilty plea. His plea reserved the right to appeal several of the district court's rulings, including the court's rejection of Moore's challenge to the State's use of the North Dakota conviction. The district court entered a judgment of conviction imposing a unified sentence of six years, with one year fixed.

In Moore's other DUI case, he pleaded not guilty and went to trial. In that trial, the district court admitted evidence of the North Dakota DUI conviction over Moore's objection that it was not a substantially conforming foreign criminal conviction, that the Wyoming conviction was constitutionally defective, and that the documentary evidence of that conviction was not properly authenticated. Moore appealed in both cases.

The two appeals were consolidated and addressed by this Court in State v. Moore, 148 Idaho 887, 231 P.3d 532 (Ct. App. 2010). We affirmed the district court's determination that the North Dakota DUI conviction was "substantially conforming" and that Moore had not shown that conviction to be constitutionally defective. These rulings rejected the challenges to use of the North Dakota conviction that Moore had made before the district court in this case. However, we also vacated the judgment of conviction in his other DUI case because the documentary evidence of the North Dakota conviction was not properly authenticated and therefore had been wrongly admitted at trial. Id. at 892-99, 231 P.3d at 537-44.

In that appeal, Moore contended that he and the district court had "agreed" at the change of plea hearing in the present case that his guilty plea could be set aside if he obtained any appellate relief in the other case regarding the North Dakota conviction. He argued that because this Court had determined that documentary evidence of the North Dakota conviction was wrongly admitted at trial in the other case due to lack of proper authentication, the present case should be remanded for "further proceedings as intended by the district court." Id. at 903-04, 231 P.3d at 548-49. Because ambiguous statements made at Moore's change of plea hearing concerning the scope of the reserved issue left open this possibility, we remanded this case "for proceedings consistent with our opinion and the Rule 11 plea agreement." Id. at 904, 231 P.3d at 549.

On remand, the district court determined that the reservations in Moore's conditional guilty plea were not as broad as Moore contended in that he did not reserve a right to relief from his guilty plea if the Court of Appeals found evidentiary trial error in the other case. The district court therefore effectively denied Moore's motion to withdraw his guilty plea. Perhaps so that Moore would have a written document from which to appeal, the district court stated its intent to enter an amended judgment which would "impose the sentence as earlier set out in the Court's judgment." Later in the same hearing, the district court said that it would "impose the sentence of one year fixed, four years indeterminate for five years," which was not an accurate statement of the original sentence. On June 11, 2010, the amended judgment of conviction was entered, stating a unified sentence of five years, with one year fixed. Moore did not appeal, and neither did the State.

On September 10, 2010, the State filed a motion to amend the judgment of conviction a second time to "correct an apparent clerical mistake." The State pointed out that the original judgment of conviction imposed a unified sentence of six years, with one year fixed and that because at the hearing on remand the district court had stated its intent to "impose" that sentence again, its amended judgment of conviction stating a unified sentence of five years, with one year fixed, was a mistake. Over Moore's protestations, the district court agreed that it had made a clerical mistake correctable under Idaho Criminal Rule 36, and entered a second amended judgment of conviction expressing a unified sentence of six years, with one year fixed. Moore appeals. (footnotes omitted).

On appeal from the second amended judgment, Moore asserted that the district court's oral pronouncement of a five-year unified sentence controlled, and that the court lacked jurisdiction to enter the second amended judgment of conviction. Moore, 152 Idaho at 204-05, 268 P.3d at 472-73. However, this Court affirmed the second amended judgment. We held that because the district court had not intended to make a substantive change to the sentence previously in place, I.C.R. 36 authorized the court to correct its error. Id. at 204-06, 268 P.3d at 472-74.

Several months later, Moore filed a pro se I.C.R. 35(a) motion to correct an illegal sentence in his 2006 DUI case. In this motion, it appears Moore alleged: (1) the district court's second amended judgment and its correction of his prior erroneous oral pronouncement constituted a violation of the Ex Post Facto Clause and was precluded by the doctrine of collateral estoppel; (2) his conviction was the result of vindictive prosecution and a biased trial judge; and (3) that his speedy trial rights were violated. Rather than request that his sentence be ...


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