Opinion No. 61
from the District Court of the Third Judicial District, State
of Idaho, Canyon County. Hon. Juneal C. Kerrick, District
denying I.C.R. 35 motion for correction of illegal sentence.
D. Fredericksen, Interim State Appellate Public Defender;
Reed P. Anderson, Deputy Appellate Public Defender, Boise,
Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy
Attorney General, Boise, for respondent.
MELANSON, Chief Judge.
2005, a grand jury indicted Alden Lamar Hoagland, Jr. on one
count of lewd conduct with a minor under sixteen. Pursuant to
a plea agreement, the district court amended the indictment
without resubmitting the matter to a grand jury. The district
court amended the indictment by striking out language and
replacing the relevant allegations and code sections in
handwriting. The amended indictment was not signed by the
foreman of the grand jury or the prosecutor. Specifically,
the amended indictment changed the charging language from
lewd conduct with a minor to sexual abuse of child and
changed the Idaho Code section from 18-1508 to 18-1506(b).
indictment was amended by the district judge in open court
where Hoagland stipulated that the amendments could be filed.
The district court accepted Hoagland's guilty plea and
imposed a unified sentence of fifteen years, with a minimum
period of confinement of three and one-half years. Eight
years later, Hoagland filed an I.C.R. 35 motion to correct an
illegal sentence, arguing the amended indictment did not
confer jurisdiction because it was not resubmitted to the
grand jury. The district court denied the Rule 35 motion,
reasoning that the grand jury found sufficient cause to go
forward with a prosecution on factual elements that gave rise
to the amended charge as listed in the amended indictment.
a court lacks jurisdiction is a question of law, over which
this Court exercises free review. State v. Jones,
140 Idaho 755, 757, 101 P.3d 699, 701 (2004). In a criminal
case, the filing of a charging document alleging that an
offense was committed within the state of Idaho confers
subject matter jurisdiction. Id. at 757-58, 101 P.3d
at 701-02. Because the charging document provides subject
matter jurisdiction to the district court, the district
court's jurisdictional power depends on the charging
document being legally sufficient to survive challenge.
Id. at 758, 101 P.3d at 702. Whether a charging
document conforms to the requirements of law and is legally
sufficient is also a question of law subject to free review.
Id. at 757, 101 P.3d at 701.
on State v. Flegel, 151 Idaho 525, 261 P.3d 519
(2011), Hoagland argues that the district court lacked
jurisdiction and therefore his sentence is illegal. In
Flegel, under facts somewhat similar to this case,
the Court held that sexual abuse is not an included offense
of lewd conduct and that the prosecutor had no authority to
issue an amended indictment for a crime that was not an
included offense of the crime originally charged. We note,
however, that in Flegel the defendant did not
consent to the amended charges nor did he plead guilty.
appeal was suspended pending the outcome of State v.
Schmierer, 159 Idaho 768, 367 P.3d 163 (2016). In
Schmierer, the Idaho Supreme Court analyzed a
jurisdictional challenge to an amended indictment that was
not issued by the grand jury or signed by the foreman of the
grand jury. Id. at 770, 367 P.3d at 165. Like in
this case, the original charging document in
Schmierer was valid. As here, the defendant pled
guilty to charges which were amended with his consent
pursuant to plea negotiations. The facts in
Schmierer are similar to this case with one
exception. What distinguishes this case is that, in
Schmierer, the prosecutor signed the amended
charging document and here there was no signature. In
Schmierer, the Court held that, where a charging
document meets the substantive requirements for an
information but is labeled an indictment, it may be treated
as an information. Id. at 771, 367 P.3d at 166. The
Court reasoned that there was no evidence the amended
indictment prejudiced the defendant by failing to describe
the charge or the factual basis for the charge. Id.
Although Schmierer is distinguishable because of the
lack of a signature, the Court's reasoning is
legally sufficient, a charging document must impart subject
matter jurisdiction and satisfy due process. Jones,
140 Idaho at 758, 101 P.3d at 702. A valid plea of guilty,
voluntarily and understandingly given, waives all
nonjurisdictional defects and defenses. State v.
Fowler, 105 Idaho 642, 643, 671 P.2d 1105, 1106 (Ct.
App. 1983). A challenge asserting the charging document is
jurisdictionally deficient is never waived and may be raised
at any time, including for the first time on appeal.
Jones, 140 Idaho at 758, 101 P.3d at 702.
Code Section 19-1418(4) requires that an indictment state
that an offense was committed at some place within the
court's jurisdiction. The same jurisdictional
requirements apply to an information. See I.C.
§ 19-1301. Thus, to confer jurisdiction upon the
district court, a charging document must allege that the
defendant committed a criminal offense within the state of
Idaho. State v. Severson, 147 Idaho 694, 708, 215
P.3d 414, 428 (2009). When the charging document's
jurisdictional sufficiency is challenged after trial, it will
be upheld unless it is so defective that it does not, by any
fair or reasonable construction, charge the offense for which
the defendant was convicted. Jones, 140 at 759, 101
P.3d at 703; State v. Robran, 119 Idaho 285, 287,
805 P.2d 491, 493 (Ct. App. 1991).
the absence of a signature on the charging document is a
defect. Idaho Code Section 19-1302 provides that the
prosecuting attorney "shall subscribe his name" to
an information, and I.C.R. 7(b) provides that the information
"shall be signed by the prosecuting attorney."
However, the absence of a signature does not affect whether
the document alleges that the defendant committed a criminal
offense in the state of Idaho nor does it have any due
process implications. The charging document alleged Hoagland
committed sexual abuse of child under sixteen, a felony, in
violation of I.C. § 18-1506(b) and that he committed the
offense in the state of Idaho. There is no evidence that the
amended indictment prejudiced Hoagland by failing to describe