from the District Court of the Seventh Judicial District,
State of Idaho, Bingham County. Hon. Darren B. Simpson,
revoking probation, affirmed; judgment of conviction
and sentence for felony fleeing or attempting to elude a
peace officer, affirmed.
D. Fredericksen, State Appellate Public Defender; Kimberly A.
Coster, Deputy Appellate Public Defender, Boise, for
appellant. Kimberly A. Coster argued.
Lawrence G. Wasden, Attorney General; Russell J. Spencer,
Deputy Attorney General, Boise, for respondent. Russell J.
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.
(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Merrill's withheld judgment was revoked and he was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
(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.
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.
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.
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.