1 IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 35665 STATE OF IDAHO,

Plaintiff

- Appellant

- Cross Respondent,

v .

MICHAEL EDWIN CLEMENTS,

Defendant

- Respondent

- Cross Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) Bois e , August 2009 Term

2009 Opinion No. 125

Filed: October 15, 2009 Stephen W. Kenyon, Clerk

Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bonneville County. Hon. Gregory S. Anderson, District Judge.
District court o rder vacating judgment, reversed and remanded. Hon. Lawrence G. Wasden, Attorney General, Boise, for appellant. Kenneth K. Jorgensen, Deputy Attorney General, argued. Molly J. Huskey, Idaho Appellate Public Defender, Boise, for respondent. Dia ne Walker, Deputy Appellate Public Defender, argued.

__________________________________ BURDICK, Justice This case arises out of the 1994 shooting death of Mary Ellen Johnson and shooting of Lori Anne Oakes. Respondent Michael Edwin Clements pled guilty to second

- degree murder with a firearm enhancement for the death of Johnson and at tempted second

- degree murder with a firearm enhancement for the shooting of Oakes

. The district court sentenced Clements to life with fifteen years fixed for second

- degree m urder plus fifteen years for the firearm enhancement, and fifteen years with ten years fixed for attempted sec ond

- degree murder plus five years for the firearm enhancement . Approximately ten years later, Clements filed an Idaho Criminal Rule 35 motion, ar guing that he was illegally sentenced for two weapon enhancements because both shootings arose from the same indivisible course of conduct under I.C. § 19

- 2520E. The district court reversed Clements‟s judgment of conviction and sent ence for attempted seco nd

- degree2

murder with a firearm enhancement and resentenced him to fift een years with ten years fixed, with credit for time served. The State appealed and the Court of Appeals reversed, holding that the district court lacked authority to consider the unde rlying facts of the case in determining that Clements‟s sentence for attempted second

- degree murder was illegal. Clements petitioned this Court for review. We find that the district court lacked authority under Rule 35 to examine the underlying facts of Clements‟s case.

I. FACTUAL AND PROCEDURAL BACKGROUND In 1994, Clements shot Johnson and Oakes, and Johnson died as a result of the shooting. The State charged Clements with first

- degree murder with a firearm enhancement for the death of Johnson, attempted first

- degree murder with a firearm enhancement for the shooting of Oakes, and burglary. Clements entered into a plea bargain where, in exchange for his guilty pleas to the reduced charges of second

- degree murder with a firearm enhancement and at tempted second

degree murder with a firearm enhancement, the State dismissed the burglary charge and a felony intimidating a witness charge from a separate case and recommended concurrent sentences. The district court sentenced Clements to life with fifte en years fixed for second

- degree murder plus fifteen years for the firearm enhancement, and fifteen years with ten years fixed for attempted second

- degree murder plus five years for the firearm enhancement, with credit for time served. Clements appealed. On October 3, 1996, the Idaho Court of Appeals affirmed Clements‟s judgment of conviction and sentence in an unpublished opinion. Approximately ten years later , on May 26, 2006, Clements filed a pro se Rule 35 motion to correct an illegal sentence. The basis of Clements‟s motion was that he was illegally sentenced for two firearm enhancements because the shootings arose from the same indivisible course of conduct. Idaho Code § 19

- 2520, Idaho‟s weapons enhancement statute, is limited by I.C. § 19

- 252 0E, which provides in pertinent part: “[A]ny person convicted of two (2) or more substantive crimes provided for in [I.C. § 19

- 2520], which crimes arose out of the same indivisible course of conduct, may only be subject to one (1) enhanced penalty.” Cleme nts was appointed counsel for his Rule 35 motion, and the district court heard argument. After reviewing the transcript of the preliminary hearing held on September 20, 1994, the district court determined that Clements shot both victims in rapid successio n and, therefore, the crimes “arose out of the same indivisible course of conduct.” T he district court determined that once it vacated one of Clements‟s sentences, it had no reason to vacate the remaining legal sentence. The3

district court granted Clemen ts‟s Rule 35 motion in part and vacated his judgment of conviction and sentence for attempted second

- degree murder with the firearm enhancement. On September 11, 2006, the district court conducted another sentencing hearing for the count of attempted

seco nd

- degree murder. Clements was resentenced to fifteen years with ten years fixed, and was given credit for time served. The State appealed, asserting that the district court lacked authority to examine the underlying facts of Clements‟s case in order to determine whether his original enhanced sentence for attempted second

- degree murder was illegal. Clements filed a pro se cross
- appeal, arguing the district court should have invalidated both of his sentences after finding that the imposition of the two w eapons enhancements was illegal. Clements was appointed a public defender for his appeal. On May 29, 2008, the Idaho Court of Appeals reversed the district court‟s order, holding that the district court lacked authority to examine the underlying facts of Clements‟s case before concluding that his sentence was illegal. This Court granted Clements‟s petition for review. We reverse the district court‟s order and remand. II. STANDARD OF REVIEW “On review of a case from the Court of Appeals, this Court give s due consideration to the Court of Appeals‟ decision, but directly reviews the decision of the trial court. ” State v. Bishop , 146 Idaho 804, 810, 203 P.3d 1203, 1209 (2009). Idaho Criminal Rule 35 is a narrow rule that allows a trial court to correct a n illegal sentence at any time, or to correct a sentence imposed in an illegal manner within 120 days. State v. Farwell , 144 Idaho 732, 735, 170 P.3d 397, 400 (2007); I.C.R. 35. “Generally, whether a sentence is illegal or whether it was imposed in an il legal manner is a question of law, over which we exercise free review.” Farwell , 144 Idaho at 735, 170 P.3d at 400. III. ANALYSIS On appeal, the State asserts that the district court lacked authority under Rule 35 to examine the underlying facts of Cl ements‟s case in determining whether his original enhanced sentence for attempted second

- degree murder was illegal. The question before this Court is whether the scope of review under Rule 35 permitted the district court to review the underlying facts of Clements‟s crimes before determining that his s entence was illegal. In order to resolve this issue, we must first determine what constitutes an “illegal sentence” under Rule 35.4

A. A trial court cannot examine the underlying facts of a crime to which the defendant pled guilty to determine if the sentence is an “illegal sentence” under Rule 35. I daho Criminal Rule 35 provides , in pertinent part: “The court may correct an illegal sentence at any time and may correct a sentence that has been imposed in a n illegal manner within the time provided herein for the reduction of sentence.” The term “illegal sentence” is not defined under Rule 35. “ Where the lower court's decision turns on the interpretation of a criminal rule, this Court exercises free review. ” State v. Castro , 145 Idaho 173, 175, 177 P.3d 387, 389 (2008)

. Idaho Criminal Rule 35 was adopted from Federal Rule of Criminal Procedure 35, which originally read: “ The court may correct an illegal sentence at any time and may correct a sentence impo sed in an illegal manner within the time provided herein for the reduction of
sentence .” Fed. R. Crim. P. 35 (1944). “[Federal Rule of Criminal Procedure 35] „was a codification of existing law and was intended to remove any doubt created by the decision in United States v. Mayer, 235 U.S. 55, 67, 35 S.Ct. 16, 18, 59 L.Ed. 129 [ (1914) ] , as to the jurisdiction of a District Court to correct an illegal sentence after the expiration of the term at which it was entered.‟ ” Hill v. U nited States , 368 U.S. 424, 430 n.8 (1962) (quoting Heflin v. U nited States , 358 U.S. 415, 422 (1959) (Stewart, J., concurring)). The United States Supreme Court has explained that the function of Fed. R. Crim. P. 35 is narrow: “[A]s the Rule's language and history make clear, the narrow function o f Rule 35 is to permit correction at any time of an illegal sentence, not to re

- examine errors occurring at the trial or other proceedings prior to the imposition of sentence .” Hill , 368 U.S. at 430. A number of state court jurisdiction s have narrowed review of a motion to correct an illegal sentence, concluding that the determination of whether a sentence is illegal for purpose of the motion is a legal question , and does not permit an evidentiary inquiry. For example, the Florida Supre me Court addressed whether an unsworn motion that alleged a sentencing error and requested a factual determination of the number of criminal episodes actually alleged an “illegal” sentence that could be resolved at any time. State v. Callaway , 658 So.2d 9 83, 984 (Fla. 1995), receded from on other grounds by Dixon v. State , 730 So.2d 265 (Fla. 1999). The Florida Supreme Court limited the definition of “illegal sentence” to include only “those sentencing issues that can be resolved as a matter of law withou t an evidentiary determination,” i.e. sentencing issues that can be determined from the face of the record. Id. at 984.5

The Indiana Supreme Court similarly held that an evidentiary inquiry is not permitted for a defendant‟s motion to correct an “erron eous sentence , ” under Indiana Code § 35

- 38

- 1

- 15. Robinson v. State , 805 N.E.2d 783, 787 (Ind. 2004). T he Indiana Supreme Court stated:

When claims of sentencing errors require consideration of matters outside the face of the sentencing judgment, they are best addressed promptly on direct appeal and thereafter via post

- conviction relief proceedings where applicable. Use of the statutory motion to correct sentence should thus be narrowly confined to claims apparent from the face of the sentencing judgment, and the “facially erroneous” prerequisite should henceforth be strictly applied, notwithstanding Jones , Reffett , and Mitchell

. We therefore hold that a motion to correct sentence may only be used to correct sentencing errors that are clear from the face of the judgment imposing the sentence in light of the statutory authority. Claims that require consideration of the proceedings before, during, or after trial may not be presented by way of a motion to correct sentence. Id. ( e mphasis added). In sum, the Indiana Supreme Court employs a “facially erroneous” standard to determine whether a sentence is illegal. Likewise , the Wyoming Supreme Court has limited the definition of “illegal sentence” to “one that exceeds statutory limits, imposes multiple term s of imprisonment for the same offense, or otherwise violates constitutions or the law.” Brown v. State , 99 P.3d 489, 491 (Wyo. 2004). This definition is akin to the United States Supreme Court‟s definition of “illegal sentence” in Hill v. U nited States , 368 U.S. 424, 430 (1962), which, as noted above, focuses on correcting illegal sentences, not reexamining errors from proceedings prior to sentencing. In Brown , the Wyoming Supreme Court held that “[t]he determination of whether a sentence is illegal is made by reference to the authorizing statute or applicable constitutional provisions and is, therefore, a matter of statutory interpretation.” Brown , 99 P.3d at 491. Therefore, in Wyoming the determination of whether a sentence constitutes an “illegal se ntence” is a legal question that does not require an evidentiary hearing. Therefore, the term “illegal sentence” under Rule 35 is narrowly interpreted as a sentence that is illegal from the face of the record, i.e. , does not involve significant question s of fact or require an evidentiary hearing. This interpretation is harmonious with current Idaho law. As this Court recently noted in State v. Farwell , 144 Idaho 732, 735, 170 P.3d 397, 400 (2007), Rule 35 is a “narrow rule.” Because an illegal sentenc e may be corrected at any time, the authority conferred by Rul e 35 should be limited to uphold the finality of judgments. Rule 35 is not a vehicle designed to reexamine the facts underlying the case to determine whether a sentence is illegal; rather, the rule only applies to a narrow category of cases in which the sentence imposes6

a penalty that is simply not authorized by law or where new evidence tends to show that the original sentence was excessive. See State v. Arthur , 145 Idaho 219, 223, 177 P.3d 96 6, 970 (2008). Clements argues that it reasonably follows from this Court‟s opinion in State v. Kerrigan , 143 Idaho 185, 141 P.3d 1054 (2006), that the district court is justified in assessing the underlying facts of his case to determine if a firear m enhancement is illegal under Rule 35. In Kerrigan , the defendant pled guilty to aggravated battery for shooting a police officer and was sentenced to forty

- five years. Id. at 186, 141 P.3d at 1055. The defendant‟s sentence was comprised of fifteen yea rs for the aggravated battery, plus a fifteen year enhancement under I.C. § 18

- 915 (1991) because the battery was upon a law enforcement officer, plus a fifteen year firearm enhancement under I.C. § 19

- 2520 (1991). Id. at 186

- 87, 141 P.3d at 1055

- 56. Mor e than ten years after sentencing, the defendant filed a Rule 35 motion, which was denied by the district court

. Id. at 187, 141 P.3d at 1056. On appeal, the defendant argued that his sentence was illegal because the district court lacked authority to im pose more than one enhancement to his single substantive offense for aggravated battery. Id. Although the Court addressed the merits of the defendant‟s claim, in doing so neither it nor the district court reviewed anything beyond the basic public records concerning the conviction and sentence , and the statutory language of the enhancements. Id. at 188, 141 P.3d at 1057

. In other words, in Kerrigan neither court was required to reexamine the underlying facts surrounding the assault and battery to determ ine whether the defendant‟s sentence was illegal. Furthermore, Clements‟s case is distinguishable from Kerrigan . The defendant in Kerrigan only pled guilty to aggravated battery, whereas Clements pled guilty to the underlying substantive crimes and th e firearm enhancements. Clements argues that this fact is irrelevant because he did not specifically admit that both crimes arose out of divisible courses of conduct and the parties understood that there were no representations outside of the written agre ement. However, it is well established that “„[a] valid plea of guilty, voluntarily and understandingly given, waives all non

-

jurisdictional defects and defenses, whether constitutional or statutory, in prior proceedings.‟” State v. Al

- Kotrani , 141 Idaho 66, 69, 106 P.3d 392, 395 (2005) (quoting Clark v. State, 92 Idaho 827, 832, 452 P.2d 54, 59 (1969)). As the State points out in its brief, Clements also did not specifically admit that the crimes were not committed in self

- defense, yet the plea bargain prohibits him from asserting the defense at this stage in the proceedings. By7

pleading guilty to both firearm enhancements, Clements waived the statutory, fact

- based defense that the murder and attempted murder arose out of the same indivisible course of conduct under I.C. § 19

- 2520E. See id. Therefore, even if Kerrigan warranted review of the underlying facts to determine if the sentence is illegal, the holding is inapplicable since Clements pled guilty to both firearm enhancements, thereby waiving the factual findings he now wishes to rely upon to reexamine his sentences. Therefore, we hold that the interpretation of “illegal sentence” under Rule 35 is limited to sentences that are illegal from the face of the record, i.e., those sentences that do not involve significant questions of fact nor an evidentiary hearing to determine their illegality. B. Clements’s sentence is not illegal from the face of the record
. Next, in applying the standard set forth above, we determine that Clements‟s sentence i s
not illegal from the face of the record

. The basis of Clements‟s Rule 35 motion is that he was illegally sentenced for two firearm enhancements since both shootings arose from the same indivisible course of conduct under I.C. § 19

- 2520E. Idaho Code § 1 9

- 2520E provides in pertinent part that “any person convicted of two (2) or more substantive crimes provided for in [I.C. § 19

- 2520], which crimes arose out of the same indivisible course of conduct, may only be subject to one (1) enhanced penalty.” “Th[e ] statute, by its wording, limits the otherwise mandatory duty of the district court to enhance „multiple‟ sentences under I.C. § 19

- 2520.” State v. Johns , 112 Idaho 873, 882, 736 P.2d 1327, 1336 (1987). Here, the district court‟s determination that t he two crimes fo r which Clements was convicted

— second

- degree murder and attempted second

- degree murder

— arose out of the same in divisible course of conduct was a significant factual finding that the court was only able to make after reviewing testimony from t he preliminary hearing. See id

. ; see also State v. Searcy , 118 Idaho 632, 638, 798 P.2d 914, 920 (1990); State v. McLeskey , 138 Idaho 691, 696

- 98, 69 P.3d 111, 116

- 18 (2003); State v. Custodio , 136 Idaho 197, 207

- 08, 30 P.3 d 975, 985

- 86 (Ct. App. 2001). Clements himself concedes that it was a factual determination. Accordingly, Clements‟s sentence is not illegal from the face of the record. Clements argues that implicit in the Court‟s decisions where it has discussed I.C. § 19

- 2520 E is the understandi ng that if the district court imposes multiple enhancements for offenses arising out of the same indivisible course of conduct, then the sentence is illegal. Clements argues that because a Rule 35 motion is the appropriate mechanism to challenge an illega l8

sentence, review of the underlying facts of the case is necessary to determine whether the crimes arose out of the same indivisible course of conduct. However, in prior cases where this Court has applied I.C. § 19

- 2520 E, the factual issue regarding the divisibility of conduct for the purpose of weapons enhancement was either raised on direct appeal, made before the defendant‟s Rule 35 motion, or was not necessary to resolve the appeal. See State v. Johns , 112 Idaho 873, 88 2, 736 P.2d 1327, 1336 (1987) ( d efendant challenging on direct appeal the trial court‟s conclusion that the conduct concerning the murder was divisible from the conduct constituting the robbery, which was based upon the evidence in the record); State v. Searcy , 118 Idaho 632, 634, 638, 798 P.2d 914, 916, 920 (1990) (holding that the district court properly granted the defendant‟s Rule 35 motion challenging two firearm enhancements for murder and robbery because the jury found the defendant killed while committing the robbery); State v. M cLeskey , 138 Idaho 691, 696

- 97, 69 P.3d 111, 116

- 17 (2003) (holding that the district court erred in dismissing the firearm enhancement with respect to the burglary charge prior to trial under I.C. § 19

- 2520 E because the statute only prohibits imposing mor e than one enhanced penalty where a person is convicted of two or more substantive crimes that arose out of the same indivisible course of conduct and does not prohibit charging more than one enhanced penalty even if the crimes charged all arose out of the same indivisible course of conduct); State v. Kerrigan , 143 Idaho 1 85, 141 P.3d 1054 (2006) ( holding that the defendant‟s sentence was not illegal, but neither it nor the district court was required to make a factual determination or review anything beyon d the defendant‟s judgment of conviction and the statutory langu age of the enhancements ). Here, the factual issue regarding the divisibility of Clements‟s conduct under I.C. § 19

- 2520 E was addressed for the first time in Clements‟s Rule 35 motion, which w as filed approximately ten years after he was sentenced. Because I.C.R. 35 is limited to legal questions surrounding the defendant‟s sentence, the factual issue of the divisibility of conduct for purposes of I.C. § 19

- 2520 E must be apparent from the face of the record and, therefore, determined before the defendant files a Rule 35 motion. B y reexamining the facts underlying the crimes in this case to determine that Clements‟s sentence was illegal, the district court exceeded the “narrow” scope of Rule 35. See State v. Farwell , 144 Idaho 732, 735, 170 P.3d 397, 400 (2007)

. By exceeding the scope of Rule 35, the district court exceeded the scope of its authority

. See State v. Jakoski , 139 Idaho 352, 355, 79 P.3d 711, 714 (2003)

. Therefore , we reverse the district court‟s order vacating Clements‟s9

judgment of conviction an d sentence for attempted second

- degree murder with a firearm enhancement , and remand the matter to the district court to reinstate the judgment of conviction and sentence that was vac ated. Because the district court exceeded its authority by examining the underlying facts of Clements‟s case in determining that his sentence was illegal, we decline to address Clements‟s argument that the district court erred in failing to vacate both of his sentences. IV. CONCLUSION For the reasons set forth above, we hold that the district court lacked authority under Idaho Criminal Rule 35 to examine the underlying facts of Clements‟s case before concluding that Clements‟s sentence was illegal. Acco rdingly, we reverse the district court‟s order vacating Clements‟s judgment of conviction an d sentence for attempted second

- degree murder with a firearm enhancement and remand the matter to the district court to reinstate the judgment of conviction and sen tence that was vacated. Finally, we decline to address Clements‟s argument that the d istrict court erred in failing to vacate both of his sentences. Chief Justice EISMANN and Justices J. JONES, and W. JONES, CONCUR. HORTON, J., concurring. I join in th e Court‟s decision. However, I write separately to address the impact of this Court‟s decision on a line of decisions from the Idaho Court of Appeals. The majority decision quotes from the Indiana Supreme Court‟s decision in Robinson v. State, 805 N.E.2d 783 (Ind. 2004). In Robinson , the claim of an “illegal sentence” related to credit for time served prior to sentencing and corresponding “credit time” under Indiana law

. The Indiana court held that the motion to correct sentence “may only be used to corr ect sentencing errors that are clear from the face of the judgment...” The impact upon this State‟s jurisprudence is this: our Court of Appeals has long held that an incorrect calculation of credit for time served is an illegal sentence which may be correc ted at any time under I.C.R. 35. The Court of Appeals first suggested this view in State v. Hale, 116 Idaho 763 , 779 P.2d 438 (Ct. App. 1989) . In that case, the court did not expressly address the timeliness of Hale‟s claim, as it concluded that Hale w as not entitled to the credit which he sought. However, in State v. Rodriguez, 119 Idaho 895 , 811 P.2d 505 (Ct. App. 1991) , the court expressly held that Rule 35 provided a basis for a challenge to the legality of a sentence based upon a claim that the tr ial court incorrectly calculated credit for time served prior to sentencing :10

The second issue raised by the state is whether Rodriguez' Rule 35 motion was timely filed. Rodriguez filed the motion two

- and

- one
- half years after judgment was imposed. Pursu ant to Rule 35 , the district court has authority to correct an illegal sentence at any time. Rodriguez' motion under Rule 35 states a colorable (although as we discuss later, unmeritorious) claim that the sentence imposed upon him is illegal . He asserts t hat the sentence is illegal because it does not comply with I.C. § 18

- 309. The language of I.C. § 18

- 309 is mandatory, and requires that in sentencing a criminal defendant, the sentencing judge give the appropriate credit for pre

- judgment incarceration. La w v. Rasmussen, 104 Idaho 455, 456

- 57, 660 P.2d 67, 68

- 69 (1983). Thus, a claim that such credit was not properly given is a claim that the sentence is illegal, since the sentence would have been imposed in violation of I.C. § 18

- 30 Id. at 896

- 97, 811 P.2d at 506

- 07 (emphasis added, footnote omitted). The Court of Appeals has consistently applied this rule in subsequent cases. See e.g., State v. McCarthy, 145 Idaho 397, 179 P.3d 360 (Ct. App. 2008). This Court has yet to specifically address this line of a uthority. However, the computation of time served necessarily involves a factual inquiry beyond “the face of the record” as it requires consideration of jail booking and release records. Thus, today‟s decision effectively overrules Rodriguez and its
prog eny. Although I agree with the Court‟s reasoning and the decision we issue today, there are good reasons for judges to have the power to correct erroneous credit calculations. The holding that judges are without authority to conduct limited factual inquir ies as to the duration of
pre sentence incarceration and to correct their sentences means that inmates will have to seek relief by way of an alternative legal avenue. Although an incorrect calculation of presentence credit may be grounds for habeas relief , inmates may well be precluded from assert ing that they are being unlawfully confined until the time that their confinement becomes unlawful. In misdemeanor cases and felony case s where the entire unified sentence is fixed, the practical effect is that inm ates will serve time in excess of that which they are legally required to serve. In my view, this Court has a simple and straightforward remedy available to it that will avoid the undesirable side

- effect of today‟s decision. This Court should amend I.C .R. 35 or adopt a separate rule in order to expressly grant trial judges the authority to correct sentences involving the erroneous computation of credit for time served prior to sentencing.