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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 48842

STATE OF IDAHO,

Plaintiff-Respondent,

v.

LLOYD HARRISON HARROD, III,

Defendant-Appellant.

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Filed: February 23, 2022

Melanie Gagnepain, 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THIS IS AN UNPUBLISHED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. Gene A. Petty, District Judge. 

Order denying Idaho Criminal Rule 35 motion to correct an illegal sentence, 

affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Jacob L. Westerfeld, 

Deputy Appellate Public Defender, Boise, for appellant. 

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

Attorney General, Boise, for respondent. 

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HUSKEY, Judge

Lloyd Harrison Harrod, III appeals from the district court’s order denying his Idaho

Criminal Rule 35 motion to correct an illegal sentence. Harrod argues his sentence for aggravated 

assault with a weapon enhancement illegally subjected him to multiple sentencing enhancements 

for the use of a firearm. For the reasons set forth below, we affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Harrod pleaded guilty to aggravated assault on a law enforcement officer, Idaho Code 

§§ 18-915, 18-901, 18-905, with a firearm enhancement, I.C. § 19-2520; eluding a peace officer, 

I.C. § 49-1404(2); and unlawful possession of a firearm I.C. § 18-3316. The district court imposed 

a unified term of incarceration of twenty-five years, with eight years determinate, for aggravated 

assault on a law enforcement officer with a firearm, and a five-year determinate sentence for both 
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the eluding a peace officer charge and the unlawful possession of a firearm charge. The district 

court ordered the sentences to run concurrently. Harrod appealed, arguing that his sentences are 

excessive. In an unpublished opinion, this Court affirmed Harrod’s judgment of conviction and 

sentences. State v. Harrod, Docket No. 45988 (Ct. App. Jan. 18, 2019).

Harrod filed an I.C.R. 35 motion arguing the weapon enhancement applied to his 

aggravated assault sentence is illegal because he was subjected to multiple sentencing 

enhancements for the use of a firearm. The district court denied Harrod’s motion, finding that 

Harrod was not subjected to multiple sentences for his use of a firearm. Harrod filed a motion to 

reconsider which was denied. Harrod timely appeals. 

II.

ANALYSIS

Harrod argues the district court erred by denying his I.C.R. 35 motion to correct an illegal 

sentence because the weapon enhancement that was applied to Harrod’s aggravated assault 

sentence resulted in multiple punishments for the same offense. In an appeal from the denial of a 

motion under I.C.R. 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). 

Idaho Code § 19-2520 authorizes a sentencing enhancement for use of a weapon for certain 

enumerated offenses, including aggravated assault. Section 19-2520 provides, in relevant part:

Any person convicted of a violation of sections 18-905 (aggravated assault 

defined) . . . who displayed, used, threatened, or attempted to use a firearm or other 

deadly weapon while committing or attempting to commit the crime, shall be 

sentenced to an extended term of imprisonment. The extended term of 

imprisonment authorized in this section shall be computed by increasing the 

maximum sentence authorized for the crime for which the person was convicted by 

fifteen (15) years. 

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This section shall apply even in those cases where the use of a firearm is an 

element of the offense.

The constitutional prohibition against double jeopardy provides protection against: (1) a 

second prosecution for the same offense after acquittal; (2) a second prosecution for the same 

offense after conviction; and (3) multiple criminal punishments for the same offense. Schiro v. 

Farley, 510 U.S. 222, 229 (1994); State v. McKeeth, 136 Idaho 619, 622, 38 P.3d 1275, 1278 (Ct. 

App. 2001). The Idaho Supreme Court has held that the sentencing enhancement provided in 
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I.C. § 19-2520 does not prescribe a separate offense, but authorizes courts to impose enhanced 

sentences for certain offenses. State v. Passons, 163 Idaho 643, 646, 417 P.3d 240, 243 (2018);

State v. Smith, 103 Idaho 135, 137, 645 P.2d 369, 371 (1982). An enhanced sentence does not 

place the defendant in new jeopardy but instead imposes a harsher penalty for the underlying 

offense. Passons, 163 Idaho at 648, 417 P.3d at 245.

Mindful of Passons and that I.C. § 19-2520 provides that the enhancement applies “even 

in those cases where the use of a firearm is an element of the offense,” Harrod asserts that the 

district court imposed an illegal sentence because the offense of simple assault was enhanced twice 

for his use of a firearm. Harrod has not shown error in the district court’s decision. In its order 

denying Harrod’s I.C.R. 35 motion, the district court applied Passons and concluded:

Defendant’s sentence is not illegal because he was not subjected to multiple 

sentences for the same offense for using a firearm. Defendant’s assertion that he 

was charged with the crime of assault and, because he used a firearm in the 

commission of the assault, the charge was enhanced to an aggravated assault is 

incorrect. By definition, Defendant committed the crime of aggravated assault by 

his use of a firearm during the assault pursuant to I.C. § 18-905(a). His sentence 

for aggravated assault was then enhanced because of his use of a firearm during the 

aggravated assault. This enhancement did not create a new crime but it did 

authorize the Court to impose a harsher penalty. 

Because Harrod has not shown error in the district court’s ruling, we affirm the district 

court’s denial of Harrod’s I.C.R. 35 motion for correction of an illegal sentence. 

III.

CONCLUSION

The district court properly concluded Harrod’s sentence is not illegal. Thus, the district 

court’s order denying Harrod’s I.C.R. 35 motion for correction of an illegal sentence is affirmed. 

Chief Judge LORELLO and Judge GRATTON CONCUR.