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State v. Passons

Court of Appeals of Idaho

July 21, 2017

STATE OF IDAHO, Plaintiff-Respondent,
RUSSELL ALLEN PASSONS, Defendant-Appellant.

         2017 Opinion No. 39

         Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Richard S. Christensen, District Judge.

         Denial of Rule 35 motion, affirmed.

          Eric D. Fredericksen, State Appellate Public Defender; Brian R. Dickson, Deputy Appellate Public Defender, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent.

          GRATTON, Chief Judge.

         Russell Allen Passons appeals from the district court's denial of his Idaho Criminal Rule 35 motion to correct an illegal sentence.



         Passons was convicted of two counts of aggravated assault, Idaho Code §§ 18-901, 18-905, and one count of burglary, I.C. § 18-1401. He was sentenced to concurrent terms of five years determinate on the first count of aggravated assault, twenty years with ten years determinate on the second count of aggravated assault, and ten years with five years determinate for the burglary conviction. Passons appealed from his judgment of conviction, which this Court affirmed. State v. Passons, 158 Idaho 286, 346 P.3d 303 (Ct. App. 2015). Thereafter, he filed an I.C.R. 35(a) motion asking the court to correct what he alleges is an illegal sentence. At issue is the sentence for the second count of aggravated assault, which included a fifteen-year sentence enhancement under I.C. § 19-2520 for use of a deadly weapon-in this case a knife. Passons argues I.C. § 19-2520 does not authorize a longer sentence in his case. The district court denied his motion. Passons timely appeals.

         II. ANALYSIS

         On appeal, Passons asserts that his sentence is illegal and should be vacated. Specifically, he challenges the sentence enhancement on his second count of aggravated assault. Pursuant to Rule 35, the district court may correct an illegal sentence at any time. In an appeal from the denial of a motion under Rule 35 to correct an illegal sentence, the question of whether the sentence imposed is illegal is a question of law freely reviewable by the appellate court. State v. Josephson, 124 Idaho 286, 287, 858 P.2d 825, 826 (Ct. App. 1993); State v. Rodriguez, 119 Idaho 895, 897, 811 P.2d 505, 507 (Ct. App. 1991).

         The State counters with several arguments, both on procedural and substantive grounds. First, it asserts the district court lacked jurisdiction to hear Passons' challenge to his underlying conviction, noting that while I.C.R. 35 allows a court to correct an illegal sentence at any time, it is not a mechanism to challenge an underlying judgment of conviction. The State argues Passons is essentially challenging his judgment of conviction on the use of a deadly weapon enhancement, not his sentence, and such a challenge would be untimely. The State also argues that because this Court has previously decided whether his conviction was lawful on direct appeal, his claim is barred under the doctrine of res judicata. However, these arguments fail. In State v. Burnight, 132 Idaho 654, 978 P.2d 214 (1999), the State asserted that a sentence enhancement issue was improperly raised through a Rule 35 motion; however, the Idaho Supreme Court disagreed, holding "the issue was properly raised in a Rule 35 motion because enhancements are not considered to be a new offense for which there is a separate sentence. Rather, the enhancement is an additional term and is part of a single sentence for the underlying crime." Burnight, 132 Idaho at 658-659, 978 P.2d at 218-219. Similarly, because this issue is properly raised under Rule 35 and is not an appeal of his conviction, the State's argument that the conviction has been appealed and therefore the issue of the sentence enhancement is barred by res judicata also fails.

         The United States Supreme Court has addressed how to analyze where there may be cumulative punishments under two statutes. Initially, courts should apply the test as set forth in Blockburger v. United States,284 U.S. 299 (1932), which provides: "The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Id. at 304. However, this is not always conclusive because as the Court noted, "The assumption underlying the rule is that Congress ordinarily does not intend to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the 'same offense, ' they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislativeintent." Missouri v. Hunter,459 U.S. 359, 366 (1983) (quoting Whalen v. ...

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