2013 Unpublished Opinion No. 704
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Cheri C. Copsey, District Judge.
Judgment of conviction and sentence for attempted strangulation, affirmed. Sentence for intimidating a witness, vacated and case remanded.
Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.
In this consolidated appeal, Christopher Lee Lay appeals from the judgments of conviction in two cases that were consolidated in the trial court. Lay argues that the trial court impermissibly applied the persistent violator enhancement to his sentence in one case because the State did not charge him with being a persistent violator of the law in that case. In the other case, he admits that it was proper to sentence him as a persistent violator, but contends that the sentence is excessive.
On November 17, 2011, the State filed an information charging Lay with attempted strangulation, a felony, Idaho Code § 18-923, and domestic battery in the presence of children, a misdemeanor, I.C. §§ 18-918(3)(b), 18-918(4). In that same case, the State filed an information part II alleging that Lay had committed two prior felonies and was, therefore, a persistent violator of the law under I.C. § 19-2514. While charges in this first case were pending, the State came to believe that Lay had improperly communicated with a witness in that case. Based upon those communications, the State filed a new complaint with a new case number charging Lay with felony intimidating a witness, I.C. § 18-2604(3). At the preliminary hearing in the second case, the State sought and obtained an order consolidating the two cases. The information in the second case did not allege that Lay was a persistent violator of the law.
The consolidated cases proceeded to a jury trial. Lay was found guilty of attempted strangulation, domestic battery in the presence of a child, and intimidating a witness. Thereafter, the jury was instructed regarding the persistent violator allegation. These instructions repeatedly referenced the persistent violator allegation as being applicable to the felony charges in both cases. After deliberating, and on a verdict form listing both case numbers, the jury found that Lay was a persistent violator of the law.
At the sentencing hearing, the trial court made clear that the sentences in both cases were enhanced by Lay's persistent violator status. In the first case, Lay was sentenced to an aggregate term of fifteen years' imprisonment, with five years fixed and ten years indeterminate for the attempted strangulation, and to time served on the domestic battery charge. In the second case, Lay was sentenced to a successive five-year indeterminate term of imprisonment. The written judgments of conviction reiterated that the sentences in both cases were "enhanced by the persistent violator charge."
Lay appeals, contending that the court erred by applying a persistent violator enhancement to his sentence in the second case and by ...