2013 Opinion No. 53S
Appeal from the District Court of the Second Judicial District, State of Idaho, Idaho County. Hon. Michael J. Griffin, District Judge.
Order denying motion for a hearing on motion to reconsider, affirmed; order denying successive Idaho Criminal Rule 35 motion to correct an illegal sentence, affirmed.
Sara B. Thomas, State Appellate Public Defender; Sarah E. Tompkins, Deputy Appellate Public Defender, Boise, for appellant. Justin M. Curtis argued.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
SUBSTITUTE OPINION THE COURT'S PRIOR OPINION DATED OCTOBER 8, 2013, IS HEREBY WITHDRAWN
GUTIERREZ, Chief Judge.
William Franklin Wolfe appeals from the district court's order denying Wolfe's motion for a hearing on his motion to reconsider his Idaho Criminal Rule 35 motion to correct an illegal sentence and the district court's subsequent order denying Wolfe's successive Rule 35 motion to correct an illegal sentence. Specifically, Wolfe argues the district court erred by denying the motions based on erroneous conclusions, respectively, that the substantive issue had been previously adjudicated and that Wolfe could not file a successive Rule 35 motion. Wolfe asserts that proper consideration of the merits of his motions demonstrates that the district court, in Wolfe's original criminal proceedings, lacked subject matter jurisdiction over the charge. Accordingly, Wolfe asks this Court to vacate his judgment of conviction and sentence, or alternatively, to remand the case for an evidentiary hearing.
I. FACTS AND PROCEDURE
Wolfe is serving a determinate life sentence imposed upon a conviction for first degree murder after a jury found Wolfe guilty in 1982. Years later, Wolfe learned the state district court may have lacked subject matter jurisdiction over the charged offense because the offense occurred on tribal grounds and there was evidence the victim was Native American, or "Indian" as defined in federal law, for purposes of determining federal jurisdiction over the crime.
On December 2, 2004, Wolfe filed a pro se Rule 35 motion alleging an illegal sentence based on his contention that the district court in Idaho lacked subject matter jurisdiction over the underlying criminal proceedings. He argued that jurisdiction over the crime was vested exclusively in the federal courts. The district court summarily denied the motion as untimely on December 14, 2004. Within fourteen days of the denial, Wolfe filed a motion to reconsider the decision. While the motion for reconsideration was pending, Wolfe also filed a second successive petition for post-conviction relief on February 11, 2005. In the second successive petition, Wolfe alleged a claim of ineffective assistance of prior post-conviction counsel based on counsel's failure to raise the claim of lack of subject matter jurisdiction. The district court found the issue of lack of subject matter jurisdiction had possible merit and requested further briefing on the issue. The court also ordered the second successive petition for post-conviction relief to be filed as a separate civil case, along with the Rule 35 pleadings and related court documents. The district court subsequently dismissed the petition for being untimely; it did not explicitly rule on the motion for reconsideration of the Rule 35 denial. Wolfe did not appeal the dismissal of the second successive petition for post-conviction relief.
On April 25, 2011, relying on State v. Lute, 150 Idaho 837, 252 P.3d 1255 (2011), Wolfe moved the district court for a hearing on the motion for reconsideration that he had filed in regard to the 2004 Rule 35 motion. He argued the district court's denial of his initial Rule 35 motion to correct an illegal sentence as untimely was erroneous because the court can correct an illegal sentence at any time. The district court denied the motion for a hearing, finding Wolfe had already had a hearing on the issue. Wolfe appealed the denial of the motion for a hearing and, in June 2011, filed a successive Rule 35 motion to correct an illegal sentence, again asserting a lack of subject matter jurisdiction over the original charge. The district court denied the successive Rule 35 motion. The only reason for denial cited by the district court was its conclusion that Wolfe was permitted to file only one motion under Rule 35. Wolfe filed an amended notice of appeal and now challenges both the denial of his motion for a hearing on the stagnant motion for reconsideration and the denial of his successive Rule 35 motion.
The crux of this case involves whether procedural bars are inapplicable to a Rule 35 motion when the substantive allegation is that the convicting court was without subject matter jurisdiction. Wolfe argues that a motion to correct an illegal sentence may be made at any time and that, because he asserts a lack of subject matter jurisdiction, this Court's consideration of the merits of such a claim is not dependent on the procedure used to assert it. He contends that evidence presented in support of his initial and successive Rule 35 motions shows the district court lacked subject matter jurisdiction over the charged offense for which he was convicted.
The State asserts Wolfe's 2011 appeal from the order denying a hearing on the initial 2004 motion to reconsider is, in actuality, an appeal from the denial of the initial Rule 35 motion and was untimely according to Idaho Appellate Rule 14(a). Therefore, the State maintains the position that this Court now lacks jurisdiction to review Wolfe's challenge. The State characterizes the successive Rule 35 motion as a motion to reconsider, bringing forward the same substantive issue that was not preserved by a timely appeal from the denial of the initial Rule 35 motion to correct an illegal sentence. Therefore, the State contends this Court lacks jurisdiction to review that order as well. Alternatively, if this Court finds we have jurisdiction to review this appeal by accepting the successive Rule 35 motion as a new action, the State asserts that Wolfe's jurisdictional claim is barred by the doctrine of res judicata.
A. Procedure and Scope of Rule 35 Motions
Our Rule 35 jurisprudence is well developed. As written in both 2004 and 2011, the years in which Wolfe filed his Rule 35 motions, Rule 35 required a motion for reduction of a sentence, or correction of a sentence imposed in an illegal manner, to be filed within 120 days of the entry of the judgment imposing sentence or order releasing retained jurisdiction. I.C.R. 35(b) (2011) and (2004) (amended 2009 and 2011). In contrast, a motion to correct an illegal sentence may be entertained at any time. I.C.R. 35(a) (2011) and (2004) (amended 2009 and 2011); State v. Peterson, 153 Idaho 157, 160, 280 P.3d 184, 187 (Ct. App. 2012); State v. Peterson, 148 Idaho 610, 613-14, 226 P.3d 552, 555-56 (Ct. App. 2010). The time limit for a Rule 35 motion for a discretionary reduction in sentence is carefully prescribed, and the 120-day time limit is a jurisdictional bar for the court to entertain the motion. State v. Parvin, 137 Idaho 783, 785, 53 P.3d 834, 836 (Ct. App. 2002). A Rule 35 motion to correct an illegal sentence does not have the same jurisdictional time limits.
As to its purpose, Rule 35 has a narrow scope that, as delineated by the wording in the rule itself, allows a trial court to correct an illegal sentence at any time or to correct a sentence imposed in an illegal manner within 120 days. State v. Clements, 148 Idaho 82, 84, 218 P.3d 1143, 1145 (2009); State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007). Our courts have long held that Rule 35 cannot be used as a means to collaterally attack the conviction underlying the sentence. State v. Self, 139 Idaho 718, 725, 85 P.3d 1117, 1124 (Ct. App. 2003); State v. McDonald, 130 Idaho 963, 965, 950 P.2d 1302, 1304 (Ct. App. 1997); Housley v. State, 119 Idaho 885, 889, 811 P.2d 495, 499 (Ct. App. 1991); see also State v. Burnight, 132 Idaho 654, 657-58, 978 P.2d 214, 217-18 (1999) (declining to review an automatic waiver of juvenile jurisdiction challenge made through a Rule 35 motion). For example, the defendant in Housley, 119 Idaho at 889, 811 P.2d at 499, attempted to use a Rule 35 motion to argue that if his conviction was illegal, his sentence must also be illegal, and he must be allowed to attack his conviction in order to correct his sentence. This Court determined there were other mechanisms, such as an appeal or petition for post-conviction relief, that a defendant could use to set aside a wrongful conviction, and we then re-emphasized the fact that a Rule 35 motion "subjects only the sentence to re-examination." Housley, 119 Idaho at 889, 811 P.2d at 499.
As recently as 2009, the Idaho Supreme Court has maintained the narrow scope of a Rule 35 motion. In Clements, 148 Idaho 82, 218 P.3d 1143, the defendant filed a Rule 35 motion to correct an illegal sentence ten years after being convicted of second degree murder with a firearm enhancement and attempted second degree murder with a firearm enhancement. The defendant argued he was illegally sentenced for two firearm enhancements when both shootings arose from the same indivisible course of conduct. The Supreme Court held that a trial court cannot examine the underlying facts of a crime to which a defendant pled guilty to determine if the sentence is illegal under Rule 35. Clements, 148 Idaho at 86-87, 218 P.3d at 1147-48. In its rationale, the Supreme Court examined the history of Rule 35 and noted that its purpose is to permit the correction of an illegal sentence, not to reexamine errors occurring at trial or before the imposition of the sentence. Clements, 148 Idaho at 85, 218 P.3d at 1146 (citing Hill v. United States, 368 U.S. 424, 430 (1962)). The Clements Court, based on the history of the rule, defined an "illegal sentence" as one that is illegal from the face of the record, does not involve significant questions ...