Opinion No. 39
from the District Court of the First Judicial District, State
of Idaho, Kootenai County. Hon. Richard S. Christensen,
of Rule 35 motion, affirmed.
D. Fredericksen, State Appellate Public Defender; Brian R.
Dickson, Deputy Appellate Public Defender, Boise, for
Lawrence G. Wasden, Attorney General; Russell J. Spencer,
Deputy Attorney General, Boise, for respondent.
GRATTON, Chief Judge.
Allen Passons appeals from the district court's denial of
his Idaho Criminal Rule 35 motion to correct an illegal
AND PROCEDURAL BACKGROUND
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.
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).
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.
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. ...