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State v. Merrill

Court of Appeals of Idaho

August 3, 2018

STATE OF IDAHO, Plaintiff-Respondent,
v.
COLTON MERRILL, Defendant-Appellant.

          Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bingham County. Hon. Darren B. Simpson, District Judge.

         Orders revoking probation, affirmed; judgment of conviction and sentence for felony fleeing or attempting to elude a peace officer, affirmed.

          Eric D. Fredericksen, State Appellate Public Defender; Kimberly A. Coster, Deputy Appellate Public Defender, Boise, for appellant. Kimberly A. Coster argued.

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

          LORELLO, Judge.

         In these consolidated appeals, Colton Merrill appeals from his orders revoking probation and his judgment of conviction and sentence for felony fleeing or attempting to elude a peace officer. Merrill asserts that the State breached the plea agreement between the parties. For the reasons set forth below, we affirm.

         I.

         FACTS AND PROCEDURE

         In 2013 (Docket No. 44822), Merrill pled guilty to one count of burglary. I.C. §§ 18-1401 and 18-1403. Judgment was withheld and he was placed on probation for five years. After violating the terms and conditions of his probation, Merrill's withheld judgment was revoked and he was sentenced to a unified term of five years, with a minimum period of confinement of two years. The sentence was suspended and he was placed on probation. Thereafter, Merrill violated the terms of his probation. The district court ordered execution of Merrill's sentence, retained jurisdiction, and ultimately placed Merrill on another period of probation.

         In 2015 (Docket No. 44823), while still on probation in his 2013 case, Merrill pled guilty to another count of burglary. I.C. §§ 18-1401 and 18-1403. The district court sentenced Merrill to a unified term of ten years, with a minimum period of confinement of four years, to run consecutive to his 2013 burglary sentence. Both the 2013 and 2015 cases were the subject of probation violation proceedings in June 2016, at which time Merrill was continued on probation with modified terms.

         In September 2016 (Docket No. 44824), Merrill was charged with three new crimes, including felony fleeing or attempting to elude a peace officer. I.C. § 49-1404(2)(a)(b)(c) and/or (d). Merrill entered into a plea agreement with the State whereby he pled guilty to felony fleeing or attempting to elude a peace officer, and the State dismissed the other two charges and agreed to concur with the recommendation in the presentence investigation report (PSI). The presentence investigator recommended retained jurisdiction.

         As a result of the 2016 charges, the State filed motions to revoke Merrill's probation in the 2013 and 2015 burglary cases and Merrill admitted to violating his probation. The district court held a joint sentencing and disposition hearing in all three cases and sentenced Merrill to a unified term of five years, with a minimum period of confinement of two years, for felony fleeing or attempting to elude a peace officer in the 2016 case and revoked Merrill's probation in the 2013 and 2015 burglary cases and ordered Merrill's sentences executed. Merrill's 2016 sentence was ordered to run concurrently with the sentences in Merrill's burglary cases. Merrill filed I.C.R. 35 motions for reduction of all three of his sentences, which the district court denied. Merrill appealed in all three cases, and the cases have been consolidated on appeal.

         II.

         STANDARD OF REVIEW

         Generally, issues not raised below may not be considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Idaho decisional law, however, has long allowed appellate courts to consider a claim of error to which no objection was made below if the issue presented rises to the level of fundamental error. See State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007); State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262 (1971). In State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court abandoned the definitions it had previously utilized to describe what may constitute fundamental error. The Perry Court held that an appellate court should reverse an unobjected-to error when the defendant persuades the court that the alleged error: (1) violates one or more of the defendant's unwaived constitutional rights; (2) is clear or obvious without the need for reference to any additional information not contained in the appellate record; and (3) affected the outcome of the trial proceedings. Id. at 226, 245 P.3d at 978.

         III.

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