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State v. Ish

Court of Appeals of Idaho

June 13, 2014

STATE OF IDAHO, Plaintiff-Respondent,
v.
MARTIN EDMO ISH, Defendant-Appellant.

2014 Opinion No. 48

AMENDED OPINION THE COURT'S PRIOR UNPUBLISHED OPINION DATED MARCH 28, 2014, IS HEREBY AMENDED FOR THE PURPOSE OF PUBLICATION

Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. Stephen S. Dunn, District Judge.

Judgment of conviction and sentence for possession of a controlled substance with a persistent violator enhancement, vacated in part 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; Nicole L. Schafer, Deputy Attorney General, Boise, for respondent.

GUTIERREZ, Chief Judge

Martin Edmo Ish appeals from his judgment of conviction and sentence for possession of a controlled substance with a sentencing enhancement for being a persistent violator. For the reasons set forth below, we vacate the judgment of conviction in part as to the persistent violator enhancement and Ish's sentence and remand the case for a new sentencing hearing.

I. FACTS AND PROCEDURE

After Ish was found with a straw containing methamphetamine residue, he was charged with possession of a controlled substance. The State also alleged he was a persistent violator, Idaho Code § 19-2514, contending he had two prior felony convictions. After the first phase of the bifurcated trial, the jury found Ish guilty of possession of methamphetamine. A second phase of the trial was held with regard to the persistent violator enhancement. The State presented evidence establishing Ish's name and date of birth and two key exhibits to establish Ish's prior felony convictions. The first was a minute entry and order of commitment for "Martin Edmo Ish" with a date of birth the same as Ish's, showing a 2003 conviction in Bannock County for possession of over three ounces of marijuana. The second was a minute entry and order for a "Martin Ish" containing no date of birth or other personal identifying information, showing a 1975 conviction in Bannock County for two counts of burglary in the first degree (Exhibit 7). Based on this evidence, the jury found Ish to be a persistent violator.

The district court entered a judgment of conviction for possession of a controlled substance with a persistent violator enhancement and sentenced Ish to a unified term of twelve years, with five years determinate. Ish appeals, challenging the persistent violator enhancement and his sentence.

II. ANALYSIS

Ish contends the evidence was insufficient to find he was a persistent violator. Alternatively, he contends the district court abused its discretion in imposing sentence.

Ish was convicted of being a persistent violator for prior convictions of possession of methamphetamine and two counts of burglary. On appeal, he does not challenge the sufficiency of the prior possession conviction, but contends the evidence establishing the burglary conviction is insufficient as a matter of law to support a persistent violator finding because Exhibit 7 "only ...


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