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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 43769

STATE OF IDAHO,

Plaintiff-Respondent,

v.

JOHN MCEVOY,

Defendant-Appellant.

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2016 Unpublished Opinion No. 816

Filed: December 13, 2016

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Third Judicial District, State of Idaho, 

Canyon County. Hon. D. Duff McKee, District Judge. Hon. F. Randall Kline, 

Magistrate.

Order of the district court on intermediate appeal from the magistrate judgment of 

conviction, affirmed.

Tri-City Legal, PLLC; Eric J. Scott, Richland, Washington, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

HUSKEY, Judge

John McEvoy appeals from the district court’s order affirming convictions for two 

misdemeanor violations of county ordinances. McEvoy raises the following issues on appeal:

(1) the State’s amended complaint was invalid because no oath was administered and the 

uniform citation was invalid; (2) the district court erred by affirming the magistrate’s denial of 

McEvoy’s motion to withdraw his guilty plea; (3) the magistrate possessed a preformed opinion 

of McEvoy’s property, resulting in a structural defect in the proceedings; and (4) the magistrate 

abused its discretion in imposing the sentence. 

I.

FACTUAL AND PROCEDURAL BACKGROUND

The State charged McEvoy with violating two county ordinances; causing a public 

nuisance and failing to obtain a required building permit. The original charges were issued as 
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misdemeanor offenses within an Idaho Uniform Citation. At a pretrial conference, McEvoy 

requested the State issue a formal complaint in addition to the original citation. 

The State filed an amended complaint which listed the following violations: Count I for 

failing to obtain a building permit, in violation of Idaho Code § CO 06-01-09; and Count II for 

maintaining and/or allowing a public nuisance on his property, in violation of I.C. § CO 02-01-

05. McEvoy filed a motion to dismiss, arguing the State’s complaint failed to recite any facts in

support of the alleged code violations. In response, the State requested and the magistrate 

granted a motion to amend the complaint. In the amended complaint, Count I alleged a building 

permit violation of Canyon County Ordinance § 06-01-09 and Count II alleged a public nuisance 

violation of Canyon County Ordinance §§ 02-01-07 and 02-01-05. McEvoy filed a renewed 

motion to dismiss which argued the public nuisance violation (Count II) lacked support and 

application. McEvoy also filed a memorandum regarding “vindictive prosecution.” The 

magistrate denied McEvoy’s motion to dismiss, after which McEvoy entered a written guilty 

plea. 

After the magistrate accepted the guilty plea, the State filed a motion to allow both the 

State and the magistrate to visit McEvoy’s property prior to sentencing so the magistrate could 

view the property firsthand to better understand the extent of the nuisance, and because “an 

inspection of the land at issue would serve the interest of judicial economy.” McEvoy objected 

to the presentence review, arguing it lacked proper grounds and support. McEvoy filed a motion 

to withdraw his guilty plea arguing he had been unaware that as a result of his guilty plea, he 

must allow others to roam his property without his consent. The magistrate granted the State’s 

motion to review McEvoy’s property. At the hearing, the magistrate explained his position as 

follows:

And the Court has broad latitude in making determinations with regard to 

the appropriate sentence. The Court is going to grant the State’s motion. We’re 

not going to have a bunch of people traipsing around. We’re going to have the 

prosecutor, defense counsel and Mr. McEvoy if he chooses to be there present.

We will take a walk through the property. We’ll take a look at it and see 

exactly what we’re dealing with. And at that point, it will give--we have a couple 

options. Either the State will present a slide show program and then we’ll get a 

one dimensional view of it or we can go out and get a three dimensional view and 

go take a look at it. We’re going to go take a look at it and we’ll make a 

determination at that point.

Quite candidly, it’s as much for benefit of your client as it is for the State.
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Subsequently, the magistrate denied McEvoy’s motion to withdraw his guilty plea. The 

magistrate, the prosecutor, McEvoy, and his counsel walked through McEvoy’s property prior to 

sentencing. Afterwards, the magistrate entered judgment and imposed the following sentence: 

On each count, a $1,000 fine with $800 suspended, and 180 days in jail “reserved” with the jail 

sentences to run consecutively. The magistrate also explained: “That jail is going to be reserved 

and we’re going to set this case on a 90-day calendar. And that calendar’s going to be on a 90-

day review and this court directs that you diligently work towards compliance with the law.”

McEvoy filed a timely notice of appeal to the district court. The district court affirmed 

the magistrate’s rulings on all motions and the judgment of conviction as entered. However, the 

district court ordered the case be remanded to the magistrate for resentencing because the 

magistrate’s definition of “reserved” was unclear and ambiguous, and the magistrate had 

erroneously rejected McEvoy’s refusal to be put on probation. McEvoy timely appeals. 

II.

STANDARD OF REVIEW

For an appeal from the district court, sitting in its appellate capacity over a case from the 

magistrate division, this Court’s standard of review is the same as expressed by the Idaho 

Supreme Court. The Supreme Court reviews the magistrate record to determine whether there is 

substantial and competent evidence to support the magistrate’s findings of fact and whether the 

magistrate’s conclusions of law follow from those findings. Pelayo v. Pelayo, 154 Idaho 855, 

858-59, 303 P.3d 214, 217-18 (2013). If those findings are so supported and the conclusions 

follow therefrom, and if the district court affirmed the magistrate’s decision, we affirm the 

district court’s decision as a matter of procedure. Id. Thus, the appellate courts do not review 

the decision of the magistrate. Bailey v. Bailey, 153 Idaho 526, 529, 284 P.3d 970, 973 (2012). 

Rather, we are procedurally bound to affirm or reverse the decision of the district court. Id.

III.

ANALYSIS

A. The Amended Complaint Was Not Invalid

1. The amended complaint was not invalid even though the complaint was filed 

without an oral oath

McEvoy argues the amended complaint was invalid because a complaint must be 

administered with an oath or based upon a sworn affidavit, and the State failed to accomplish 

either requirement. Idaho Criminal Rule 3 controls this procedural requirement, and states:
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The complaint is a written statement of the essential facts constituting the 

offense charged. It shall be made upon oath before a magistrate; provided, a 

prosecuting attorney may, without oath or affirmation, sign a complaint before a 

magistrate based upon the sworn affidavit, which includes a written certification 

or declaration under penalty of perjury of a complainant, which shall be filed with 

the court. Except as otherwise provided by law or rule, all criminal proceedings 

shall be initiated by complaint or indictment and prosecuted thereafter by 

complaint, indictment or information as hereinafter provided by these rules.

McEvoy asserts the amended complaint was invalid because Idaho Criminal Rule 3 

requires the State to either make a complaint under oath or sign a complaint that is based on a 

sworn affidavit. In arguing the State failed in both regards, McEvoy presents a two-pronged 

argument against the complaint’s validity. We will address only the first at length. 

McEvoy argues the magistrate did not administer an oral oath when the State filed and 

signed its amended complaint. The magistrate addressed the amended complaint on the record:

COURT: So, Mr. VanSwearingen, you filed the complaint?

MR. VANSWEARINGEN: I have the Amended Complaint for the Court’s--for 

the Court right here if you’ll just allow me to sign it. If I may approach.

COURT: Yes, sir. 

MR. VANSWEARINGEN: And Judge, just in setting the new trial date, 

Mr. McEvoy’s [sic] has expressed a willingness to waive his right to a jury trial 

and he’d be happy to proceed on the court trial. 

COURT: Any objection from the State or do you want a jury trial?

MR. VANSWEARINGEN: No objection, Your Honor.

COURT: We’ll keep the date. The Court has executed the Amended Criminal 

Complaint in this matter. 

The issue is not--as the State argues--McEvoy’s constitutional right, but rather the procedure in 

which a criminal complaint is properly made. We agree with McEvoy that no oral oath was 

offered by the magistrate at the exact moment the amended complaint was executed. However,

to invalidate the complaint for this reason would be too narrow a reading of I.C.R. 3. The 

complaint contains the facts and the charge at issue in the case. The criminal rule requires 

accuracy in the complaint, which results in protection and predictability for the defendant. 

Requiring an oath helps support this goal of accuracy since it subjects the complainant to the 

penalty of perjury. See 60A AM. JUR. 2D Perjury § 12 (2016).

Here, the amended complaint satisfies the requirements set forth in I.C.R. 3. There is 

evidence the prosecuting attorney properly subjected himself to the penalty of perjury. No oath 
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was administered at the moment the magistrate received the complaint. However, in two 

locations, the amended complaint indicates the State’s representative had been sworn on the date 

the complaint was signed. The complaint reads:

PERSONALLY APPEARED Before me this 30th day of December, 2014, Joshua 

Van Swearingen of the Canyon County Prosecuting Attorney’s Office, who being 

duly sworn, complains and says:

. . . .

SUBSCRIBED AND SWORN To before me this 30 day of December, 2014.

The evidence of being sworn demonstrates McEvoy received procedural protections in this case. 

The signature by the complainant demonstrates his being duly sworn and the signature by the 

magistrate indicates the complainant signed and was sworn in the presence of the magistrate. 

The Idaho Supreme Court addressed the same issue in State v. Parker, 81 Idaho 51, 336 

P.2d 318 (1959). In Parker, the Court addressed the validity of a complaint when there was no 

evidence the complaint was filed under oath or with an affidavit. Id. at 54, 336 P.2d at 320. 

There, the deputy explained the facts to the justice of the peace who prepared the complaint and 

handed it to the deputy. The deputy signed the complaint and returned it to the justice of the 

peace who then executed the complaint. Id. In the process, the deputy remained in the presence 

of the justice of the peace, but there was no oath administered, the deputy never raised his hand, 

and the deputy never spoke to the truth of the statements in the complaint. Id. However, the 

complaint recited the deputy had personally appeared and stated: “who, being duly sworn, 

complains and says.” Id. Additionally, the complaint concluded with the statement: 

“Subscribed and sworn to before me this 20th day of April, 1957.” Id. The Supreme Court held 

the procedure was enough to satisfy the oath requirement, since the statute does not require a 

particular form of action. Id. at 55, 336 P.2d at 321. The Court based its decision on a Kansas 

Supreme Court case, State v. Anderson, 285 P.2d 1073 (Kan. 1955), which reasoned not only 

that strict oath formalities are not always complied with, but in the absence of such oath, “some 

weight must be given to opening statements of the complaint and to the physical acts of the 

parties.” Parker, 81 Idaho at 55, 336 P.2d at 321 (quoting Anderson, 285 P.2d at 1078). Here, 

as in Parker and Anderson, the record does not contain evidence of an oral oath prior to signing 

the complaint. However, like in Parker and Anderson, the complaint was presented in front of a 

judge, signed in front of that judge, and contained introductory and conclusory language 

detailing the complainant being sworn. Since the Idaho Supreme Court indicates there are not 
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strict formalities required for an oath, and the actions of the parties demonstrated intent to be 

sworn under oath, the amended complaint satisfied I.C.R. 3. Furthermore, since the amended 

complaint satisfied I.C.R. 3, we do not need to address whether, in the alternative, the complaint 

was based on an affidavit.

2. The uniform citation was valid

McEvoy contends the uniform citation was invalid because it listed an incorrect date. 

McEvoy asserts that as a result of the invalid citation, the magistrate did not have jurisdiction. 

We disagree since a date is not a material element of the offense and, therefore, does not impact 

the subject matter jurisdiction of the trial court.

McEvoy argues on appeal the State had submitted a defective document since the 

misdemeanor rules require identification of the date of the offense. Although the misdemeanor 

rules contain such a requirement, these rules do not apply in this case because the citation 

included the date of the offense. The citation stated the violations occurred on December 11, 

2013, at 13:00. From the information in the remainder of the citation, it is clear this “2013” was 

incorrect, as the defendant was summoned to appear “on or after January 16th, 2013, and on or 

before January 29th, 2013,” and the citation was filed January 10, 2013. The violation date was 

nevertheless listed in the document, even if it was not accurate. 

The issue then is not whether the citation included a date, but rather, whether the 

erroneous date was enough to entirely invalidate the document. It was not, since case law 

indicates a date is not essential and can be mistaken in the charging documents. In State v. 

Rogers, 48 Idaho 567, 283 P. 44 (1929), the information stated the crime of rape occurred on 

December 22. Id. at 570, 283 P. at 44. The prosecutor presented its case based on December 22, 

yet the defense explained in its case that the crime could have occurred on a different date. Id.

The Court ruled:

That the requested instruction was wrong, and the court’s instruction right, admits 

of no controversy. Time is not of the essence of rape; and, notwithstanding the 

date alleged in the information, any proof that the actual crime charged was 

committed within three years prior to the filing of the information was admissible.

Id. at 570-71, 283 P. at 44-45.

In another instance, in State v. Owens, 101 Idaho 632, 619 P.2d 787 (1979), the defendant 

argued the information filed against her in the district court should have been dismissed because 

the information failed to properly describe the stolen property and did not contain the date of the 
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alleged larceny. Id. at 637, 619 P.2d at 792. The Idaho Supreme Court held the date was not 

required because time was not a material element of the charge and the exact date was unlikely 

to be discovered without admission by the guilty party. Id. The Court explained, “The 

information filed against Owens in this case was adequate with respect to the time the crime 

charged was alleged to have occurred.” Id. The ruling, therefore, indicates a date is not material 

since a filing can be adequate even when it lacks a date or time. Here, the date of the citation is 

not an essential element of McEvoy’s building permit violation or public nuisance violation. 

Like in Rogers and Owens, time is not of the essence in misdemeanor crimes involving property. 

The incorrect date within the citation does not render it invalid since the date was not a material 

element in the charge. 

In further support of the citation’s validity, Idaho Criminal Rules do not require dismissal 

of an indictment based solely on errors, and they allow for the alteration of incorrect dates

throughout the trial process. Idaho Criminal Rule 7(b) states: “Error in the citation or its 

omission shall not be grounds for dismissal of the indictment or information or for reversal of the 

conviction if the error or omission did not mislead the defendant to the defendant’s prejudice.” 

Furthermore, the date listed on a citation or complaint may be amended throughout the 

proceedings. “The court may permit a complaint, an information or indictment to be amended at 

any time before the prosecution rests if no additional or different offense is charged and if 

substantial rights of the defendant are not prejudiced.” I.C.R. 7(e). Aligning with this reasoning, 

Idaho Criminal Rules also address the possibility of clerical mistakes and how such errors may 

be corrected as well. “Clerical mistakes in judgments, orders or other parts of the record and 

errors in the record arising from oversight or omission may be corrected by the court at any time 

and after such notice, if any, as the court orders.” I.C.R. 36. The Idaho Criminal Rules,

therefore, reveal that while errors may occur during trial, these errors do not automatically 

invalidate the indictment or information, and procedures exist to allow for amendments. Thus, 

an incorrect year in McEvoy’s citation is insufficient to invalidate the document. 

Finally, because the date is not material, it does not confer or take away subject matter 

jurisdiction. McEvoy’s argument proceeds as follows: (1) Misdemeanor Criminal Rule 5 

requires the date of the offense be listed in a charging document; (2) an indictment confers 

jurisdiction; and (3) without a proper indictment, a court has no jurisdiction. But because 

McEvoy’s citation possessed an impossible date, the citation was in an improper form and,
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therefore, the trial court had no jurisdiction over the matter. Although apparently logical in its

progression, McEvoy’s position fails to address the Idaho Supreme Court precedent regarding 

subject matter jurisdiction in Idaho courts. 

Whether a court lacks jurisdiction is a question of law, over which this Court exercises 

free review. State v. Jones, 140 Idaho 755, 757, 101 P.3d 699, 701 (2004). In a criminal case, 

the filing of an information alleging that an offense was committed within the State of Idaho 

confers subject matter jurisdiction. Id. at 757-58, 101 P.3d at 701-02. Because the information 

provides subject matter jurisdiction to the court, the court’s jurisdictional power depends on the 

charging document being legally sufficient to survive challenge. Id. at 758, 101 P.3d at 702. 

Whether a charging document conforms to the requirements of law and is legally sufficient is 

also a question of law subject to free review. Id.

A challenge asserting the charging information is jurisdictionally deficient is never 

waived and may be raised at any time, including for the first time on appeal. Id. If an alleged 

deficiency is raised by a defendant before trial or entry of a guilty plea, the charging document 

must be found to set forth all facts essential to establish the charged offense to survive the 

challenge. State v. Halbesleben, 139 Idaho 165, 168, 75 P.3d 219, 222 (Ct. App. 2003). When 

the information’s jurisdictional sufficiency is challenged after trial, it will be upheld unless it is 

so defective that it does not, by any fair or reasonable construction, charge the offense for which

the defendant was convicted. Jones, 140 Idaho at 759, 101 P.3d at 703; State v. Robran, 119 

Idaho 285, 287, 805 P.2d 491, 493 (Ct. App. 1991). A reviewing court has considerable leeway 

to imply the necessary allegations from the language of the information. Jones, 140 Idaho at 

759, 101 P.3d at 703; Robran, 119 Idaho at 287, 805 P.2d at 493. In short, when considering a 

post-trial challenge to the jurisdictional sufficiency of the information, a reviewing court need 

only determine that, at a minimum, the information contains a statement of the territorial 

jurisdiction of the court below and a citation to the applicable section of the Idaho Code. State v. 

Quintero, 141 Idaho 619, 622, 115 P.3d 710, 713 (2005).

Here, the magistrate had subject matter jurisdiction because the complaint alleged 

McEvoy’s offense was committed in Idaho. The original misdemeanor citation stated McEvoy 

had committed a building permit violation and a public nuisance violation at 1703 North KCID 

Road, Caldwell, Idaho. The two alleged violations occurred in Canyon County, Idaho. The 

amended complaint also alleged Count I, which violated the Canyon County Ordinance § 06-01-
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09, and Count II, which violated §§ 02-01-07 and 02-01-05, were “against the power, peace and 

dignity of the State of Idaho.” The citation and complaint clearly alleged that McEvoy’s county 

ordinance violations occurred in Idaho and thus, the magistrate had subject matter jurisdiction. 

B. The District Court Properly Affirmed the Magistrate’s Denial of McEvoy’s Motion 

to Withdraw His Guilty Plea

After entering a written guilty plea, McEvoy objected to any search of his property and 

filed a motion to withdraw the plea. The magistrate denied the motion to withdraw, and the 

district court affirmed the magistrate’s ruling on appeal. Here, McEvoy asserts the district court 

erred when it affirmed the magistrate’s denial of McEvoy’s motion to withdraw his guilty plea. 

We disagree. 

Whether to grant a motion to withdraw a guilty plea lies in the discretion of the trial 

court, and such discretion should be liberally applied. State v. Freeman, 110 Idaho 117, 121, 714 

P.2d 86, 90 (Ct. App. 1986). Appellate review of the denial of a motion to withdraw a plea is 

limited to determining whether the district court exercised sound judicial discretion as 

distinguished from arbitrary action. Id. Also of importance is whether the motion to withdraw a 

plea is made before or after sentence is imposed. Idaho Criminal Rule 33(c) provides that a plea 

may be withdrawn after sentencing only to correct manifest injustice. The stricter standard after 

sentencing is justified to ensure that the accused is not encouraged to plead guilty to test the 

weight of potential punishment and withdraw the plea if the sentence were unexpectedly severe. 

Freeman, 110 Idaho at 121, 714 P.2d at 94. Accordingly, in cases involving a motion to 

withdraw a plea after sentencing, appellate review is limited to reviewing the record and 

determining whether the trial court abused its sound discretion in determining that no manifest 

injustice would occur if the defendant was prohibited from withdrawing his or her plea. State v. 

Lavy, 121 Idaho 842, 844, 828 P.2d 871, 873 (1992).

Here, there is no evidence to indicate McEvoy did not initially enter a knowing, 

intelligent, and voluntary guilty plea. The written plea of guilty, prepared by McEvoy for the 

magistrate, contains McEvoy’s initials and signature. McEvoy’s initials appear next to the 

following admission: “I have been fully informed of the charges against me and the possible 

consequences for entry of the plea.” McEvoy added his own explanation, stating:

[b]y which I mean I have been informed that I am charged with public nuisance 

(CCO § 6-1-9) [sic] and failure to obtain a permit (CCO § 6-1-9) and that the 

potential penalties may run consecutively and may include a 6 month jail sentence 

and a $1,000 fine on each charge.
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McEvoy also signed his initials next to the following admission: “I am entering this plea of 

guilty freely, knowingly, voluntarily and intelligently. I am not under the influence of alcohol, 

illegal drugs, or medications. I do not have any medical or mental issues which make it hard for 

me to understand the proceedings.” McEvoy and his counsel signed and dated the end of the 

written plea of guilty, which was subsequently filed by the magistrate. This information is 

sufficient evidence that McEvoy entered his guilty plea knowingly, intelligently, and voluntarily. 

The first issue here is whether the magistrate properly considered the evidence when it 

denied McEvoy’s motion to withdraw his plea. It did. During the hearing for McEvoy’s motion 

to withdraw his guilty plea, the magistrate acknowledged the proper standard of review, 

articulating it could consider the motion in the interest of justice and could consider the motion 

more liberally if it was made prior to sentencing. Using this standard, the magistrate explained 

McEvoy received representation at all stages of the trial and also completed a written guilty plea. 

The magistrate concluded the consequences of the guilty plea were explained to McEvoy and 

therefore, denied McEvoy’s motion to withdraw. The magistrate had sufficient basis to support 

its decision, and the district court therefore, was correct in its decision to affirm on these 

grounds. However, this does not end the inquiry.

McEvoy also offers an alternative interpretation of the knowing, intelligent, and 

voluntary requirement of a guilty plea. McEvoy argues that we must consider whether the plea 

implicated a constitutional right and, if so, whether a waiver of that constitutional right was a 

collateral consequence or a direct consequence of the guilty plea. McEvoy argues if the waiver 

was a direct consequence, then the waiver was not knowing, voluntary, or intelligent. 

A guilty plea will only be upheld if the entire record demonstrates that the waiver was 

made voluntarily, knowingly, and intelligently. State v. Colyer, 98 Idaho 32, 34, 557 P.2d 626, 

628 (1976). There is a prima facie showing that a plea was entered into knowingly and 

voluntarily when the minimum requirements of I.C.R. 11 are met. Ray v. State, 133 Idaho 96, 

99, 982 P.2d 931, 934 (1999) (overruled on other grounds). Idaho Criminal Rule 11(c)(2) states 

that when a defendant in Idaho enters a guilty plea, “the record of the entire proceedings, 

including reasonable inferences therefrom, must show . . . [t]he defendant was informed of the 

consequences of the plea, including minimum and maximum punishments, and other direct 

consequences which may apply.” The trial court is not required to inform a defendant of 
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consequences that are collateral or indirect. State v. Huffman, 137 Idaho 886, 887, 55 P.3d 879, 

880 (Ct. App. 2002).

Here, we do not need to address whether McEvoy’s guilty plea required a waiver of his 

Fourth Amendment rights and whether such a waiver was a direct or collateral consequence, 

since the order granting a presentence review of McEvoy’s property did not arise as a direct 

result of McEvoy’s guilty plea. Idaho courts consider the question of “other direct 

consequences” from I.C.R. 11(c)(2) only when the guilty plea results in immediate 

consequences. In State v. Heredia, 144 Idaho 95, 156 P.3d 1193 (2006), Heredia pleaded guilty 

to vehicular manslaughter, which subjects individuals by statute to a possible punishment of 

paying child support to the victim’s children. Id. at 97, 156 P.3d at 1195. Before his guilty plea, 

Heredia was not informed of this potential punishment listed in the Idaho Code. Id. This 

connection between the crime and the punishment allowed Heredia to challenge the validity of 

his guilty plea on appeal. Id. 

Similarly, in State v. Shook, 144 Idaho 858, 172 P.3d 1133 (Ct. App. 2007), the defendant 

pleaded guilty to aggravated battery while he was already incarcerated. Id. at 859, 172 P.3d at 

1134. The district court ordered Shook to pay restitution for the crime and serve a sentence 

consecutive to his current sentence. Id. This Court analyzed the result of the guilty plea since 

the defendant’s punishments were at issue and a consequence of the crime committed. Id. at 

860-61, 172 P.3d. at 1135-36. Additionally, the Idaho Supreme Court has analyzed direct and 

collateral consequences when parties argue they were not informed the Idaho Code would 

require them to register as sex-offenders after they pled guilty. See e.g., State v. Flowers, 150 

Idaho 568, 572, 249 P.3d 367, 371 (2011). The Court has also considered these consequences 

when a defendant argued he was not informed of persistent violator status if he committed a 

felony in the future. See Carter v. State, 116 Idaho 468, 776 P.2d 830 (Ct. App. 1989). 

McEvoy argues he was not informed prior to his guilty plea that he may be ordered to 

allow others on his property, and he claims he would not have pleaded guilty had he known of 

this possible consequence. However, the order for presentence review of McEvoy’s property

resulted from an unrelated motion filed by the State pursuant to Idaho Rules of Evidence 401 and 

403. In its motion for presentence review, the State argued the inspection would “serve the 

interest of judicial economy,” and the district court granted the motion without any mention of 

the guilty plea. Unlike Idaho cases addressing direct and collateral consequences, McEvoy’s 
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alleged constitutional violation did not arise as an immediate result of the guilty plea, but rather,

from a separate and distinct motion by the State. In other words, the search of McEvoy’s 

property did not follow directly from the crime or violation within the plea, since violating the 

public nuisance and building permit code did not automatically subject McEvoy to a search 

under Idaho Code. Because the presentence review resulted from a distinct motion, and not from 

the violations to which McEvoy pleaded, the property search was not a consequence of 

McEvoy’s guilty plea. 

C. The Magistrate May Have Possessed a Preformed Opinion About the Property, but 

This Is Not Enough to Reverse the District Court’s Decision

McEvoy argues the magistrate exhibited actual prejudgment about the case which

required the magistrate’s recusal under the Due Process Clause of the Fourteenth Amendment. 

McEvoy asserts the magistrate stated he had witnessed the results of the crime, revealed his 

observations at trial, and failed to demonstrate how his opinion constituted only a casual 

observation. The State responds the record shows no bias, the magistrate found no bias, and 

McEvoy failed to show an abuse of discretion in the magistrate’s finding. Any evidence of a 

preformed opinion was not substantial enough in this case to warrant a reversal under the Due 

Process Clause of the Constitution. 

Here, McEvoy did not file a motion or distinctly argue for disqualification of the 

magistrate pursuant to Idaho Criminal Rule 25. Instead, on appeal McEvoy argues only for the 

magistrate’s recusal under the Due Process Clause. Because of McEvoy’s position, we consider 

only the constitutional issue in this case.

Although due process can require judicial disqualification, the cases involve “extreme 

facts that created an unconstitutional probability of bias.” Caperton v. A.T. Massey Coal Co., 

Inc., 556 U.S. 868, 887 (2009). The United States Supreme Court in Caperton identified three 

instances which require recusal under the Due Process Clause of the Constitution. Id. at 877-87. 

These circumstances include: (1) instances where the judge has a financial interest in the 

outcome of the case (Id. at 877-79); (2) the situation where a judge charges a defendant with 

criminal contempt and then proceeds to try him on the charge (Id. at 880-81); and (3) cases 

where a person with a personal stake in a particular case had a significant and disproportionate 

influence in placing the judge on the case (Id. at 884-86). According to the Court, “Personal bias 

or prejudice ‘alone would not be sufficient basis for imposing a constitutional requirement under 
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the Due Process Clause.’” Caperton at 877 (quoting Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 

820 (1986)). 

In this case, none of the three circumstances are present--the magistrate did not have a 

financial interest in the case, the magistrate did not charge McEvoy with criminal contempt, and 

a person with a personal stake in the case did not influence the magistrate’s assignment to the 

case. Without any of these circumstances, the magistrate was not required to recuse himself 

under the Due Process Clause. We recognize the magistrate’s comments may appear to 

demonstrate bias,

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yet the statements do not give rise to a due process violation. 

D. Because the District Court Has Remanded the Case to the Magistrate, McEvoy’s 

Sentencing Claim is Moot

McEvoy argues the magistrate erred when it imposed his sentences. The State responds 

the issue was properly and sufficiently addressed by the district court and therefore, McEvoy’s 

argument is moot. Here, because the district court already ruled in favor of McEvoy and ordered 

the sentencing issue to be remanded to the magistrate, McEvoy’s claim of error is moot.

A case becomes moot when the issues presented are no longer live or the defendant lacks 

a legally cognizable interest in the outcome. Murphy v. Hunt, 455 U.S. 478, 481 (1982); 

 

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The Idaho Code of Judicial Conduct sets forth the following: “A judge shall not 

investigate facts in a matter independently, and shall consider only the evidence presented and 

any facts that may properly be judicially noticed.” I.C.J.C. Rule 2.9(D). It is troubling to find 

the magistrate granted a motion for presentence review of McEvoy’s property and despite 

McEvoy’s objection, went roaming around McEvoy’s property “to determine the extent” of the 

misdemeanor violations and to gather information to be used in sentencing. At the hearing, the 

magistrate explained his position as follows:

And the Court has broad latitude in making determinations with regard to 

the appropriate sentence. The Court is going to grant the State’s motion. We’re 

not going to have a bunch of people traipsing around. We’re going to have the 

prosecutor, defense counsel and Mr. McEvoy if he chooses to be there present.

We will take a walk through the property. We’ll take a look at it and see 

exactly what we’re dealing with. And at that point, it will give--we have a couple 

option. Either the State will present a slideshow program and then we’ll get a one 

dimensional view of it or we can go out and get a three dimensional view and go 

take a look at it. We’re going to go take a look at it and we’ll make a 

determination at that point.

Quite candidly, it’s as much for benefit of your client as it is for the State.

This unorthodox method of searching the property to gather information for sentencing 

purposes resembles an independent investigation, which suggests a lack of neutrality and 

detachment on the part of the court. We therefore advise against this procedure in the future. 
14

Bradshaw v. State, 120 Idaho 429, 432, 816 P.2d 986, 989 (1991). Even where a question is 

moot, there are three exceptions to the mootness doctrine: (1) when there is the possibility of 

collateral legal consequences imposed on the person raising the issue; (2) when the challenged 

conduct is likely to evade judicial review and thus, is capable of repetition; and (3) when an 

otherwise moot issue raises concerns of substantial public interest. State v. Barclay, 149 Idaho 6, 

8, 232 P.3d 327, 329 (2010).

McEvoy argues the magistrate erred when it imposed his sentences. For the building 

permit violation and the public nuisance violation, the magistrate imposed a $1,000 fine and 180 

days of jail for each count. The magistrate suspended $800 of each $1,000 fine and 180 days of 

the required jail time were “reserved.” However, the district court agreed with McEvoy that the 

magistrate’s definition of “reserved” was unclear and ambiguous. The district court also 

determined that before and after the sentence was imposed, McEvoy declared he would not 

accept terms of probation. As a result, the district court ordered the case be returned to the 

magistrate for resentencing. Because the district court has already ruled in favor of McEvoy and 

ordered the sentencing issue be returned to the magistrate, McEvoy’s argument is moot. 

IV.

CONCLUSION

For the foregoing reasons, the order of the district court on intermediate appeal from the 

magistrate judgment of conviction is affirmed.

Chief Judge MELANSON and Judge GRATTON CONCUR.