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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 47566

STATE OF IDAHO,

Plaintiff-Respondent,

v.

STANLEY CLARK RADFORD,

Defendant-Appellant.

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Filed: February 23, 2021

Melanie Gagnepain, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

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

Shoshone County. Hon. Scott Wayman, District Judge. 

Judgment of conviction and sentence for destruction of evidence, judgment 

affirmed; sentence vacated; and case remanded.

Eric D. Fredericksen, State Appellate Public Defender; Ben P. McGreevy, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Kacey L. Jones, Deputy Attorney 

General, Boise, for respondent. 

________________________________________________

HUSKEY, Chief Judge

Stanley Clark Radford appeals from his judgment of conviction and sentence for 

destruction of evidence, Idaho Code § 18-2603. On appeal, Radford argues his sentence was 

illegally imposed because it exceeds the statutory limit. Because the district court imposed a 

sentence for destruction of evidence rather than attempted destruction of evidence as alleged in the 

information and the district court’s sentence exceeds the maximum penalty for attempted 

destruction of evidence, we vacate the sentence and remand the case for a new sentencing hearing.

I. 

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Radford with possession of a controlled substance, destruction or 

concealment of evidence, possession of drug paraphernalia, and resisting or obstructing an officer. 

At the preliminary hearing, the magistrate court found that Radford attempted to destroy evidence
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rather than actually destroying evidence and, therefore, it bound Radford over to district court on 

an attempted destruction of evidence charge instead of a destruction of evidence charge.

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 Radford 

was also bound over on the other charges, which are not at issue in this appeal. As it relates to this 

appeal, the State filed an information alleging Radford “attempt[ed] to destroy or conceal 

evidence” in violation of I.C. § 18-306 and I.C. § 18-2603. Radford entered a not guilty plea.

Pursuant to a plea agreement, Radford pleaded guilty to attempted destruction of evidence 

and the State dismissed the remaining charges. In his guilty plea advisory form, Radford expressly 

noted that he was charged with attempted destruction of evidence citing both I.C. § 18-2603 

(destruction, alteration or concealment of evidence) and I.C. § 18-306 (punishment for attempts). 

Further, he indicated that he understood the maximum imprisonment and fine to be “2 1/2 yr” and 

“$5K” per I.C. § 18-306. At the change of plea hearing, the district court also noted this statutory 

maximum: “Looking at the statute, it looks like the maximum penalty with the attempted charge 

are two and a half years and $5,000 fine. Is that counsel’s understanding?” Both parties agreed 

that was the maximum sentence. The district court accepted Radford’s guilty plea and set a date 

for sentencing. 

A different judge presided over the sentencing hearing. The State recommended a sentence 

of five years. Radford addressed the district court and stated: “I believe my maximum penalty is 

only two and a half years, and [the State is] still at five.” As the district court announced sentence, 

it stated: “I’m going to impose a sentence--the charge you pled guilty to is destruction of 

evidence.” Radford interjected: “Attempted.” The district court responded: “Well, that’s part of 

the felony charge. Attempted destruction is the same as destruction of evidence. That’s the nature 

of that charge. It’s not an attempt. That’s the offense. And that has a maximum penalty of five 

years, just so you know.” 

The district court imposed a unified term of incarceration of three years, with one year 

determinate, and retained jurisdiction. Radford filed a timely notice of appeal. Next, Radford 

filed a motion for reduction of sentence, pursuant to Idaho Criminal Rule 35, arguing that his 

continued incarceration was not necessary to protect the public, deter him or others from similar 

 

1 The State’s criminal complaint alleged that Radford “did willfully destroy or conceal 

evidence.” Other than by implication, the record does not reflect whether the magistrate court 

found no probable cause of concealment (attempted or otherwise). Rather, the court minutes from 

the preliminary hearing and the written order binding Radford over to district court only indicate 

a finding of “attempted destruction of evidence.”
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crimes, to rehabilitate him, or to punish him. In his motion, Radford conceded that his sentence 

was not illegal, nor illegally imposed. The district court denied the motion. 

II. 

STANDARD OF REVIEW

An appellate review of a sentence is based on an abuse of discretion standard. State v. 

Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). However, 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). 

III.

ANALYSIS

On appeal, Radford argues the district court erred by imposing a three-year sentence 

because it exceeds the statutory maximum sentence for attempted destruction of evidence. The 

State asserts Radford’s claim is unpreserved because he failed to challenge the legality of his 

sentence before the district court.

Idaho Criminal Rule 35 permits the trial court to correct an illegal sentence at any time, 

upon the motion of the prosecution or the defense. State v. Howard, 122 Idaho 9, 10, 830 P.2d 

520, 521 (1992). However, a claim that a sentence is illegal may not be raised for the first time on 

appeal without the trial court having had an opportunity to consider the legality of the terms of the 

sentence. Id.; State v. Hernandez, 122 Idaho 227, 229, 832 P.2d 1162, 1164 (Ct. App. 1992). 

The State contends that Radford failed to challenge the legality of his sentence at the 

district court during sentencing and in his Rule 35 motion and, therefore, Radford cannot challenge 

the legality of his sentence now.

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 We disagree. Like in Howard, Radford’s statements during 

 

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 The State also asserts that Radford’s claim is barred by the doctrine of invited error because 

he conceded the legality of his sentence in his Idaho Criminal Rule 35 motion. The doctrine of 

invited error applies to estop a party from asserting an error when his or her own conduct induces 

the commission of the error. State v. Atkinson, 124 Idaho 816, 819, 864 P.2d 654, 657 (Ct. App. 

1993). One may not complain of errors one has consented to or acquiesced in. State v. Caudill, 

109 Idaho 222, 226, 706 P.2d 456, 460 (1985); State v. Lee, 131 Idaho 600, 605, 961 P.2d 1203, 

1208 (Ct. App. 1998). In short, invited errors are not reversible. State v. Gittins, 129 Idaho 54, 

58, 921 P.2d 754, 758 (Ct. App. 1996). This doctrine applies to sentencing decisions as well as 

rulings made during trial. State v. Griffith, 110 Idaho 613, 614, 716 P.2d 1385, 1386 (Ct. App. 

1986). Radford’s concession in his Rule 35 motion did not prompt the district court to impose a 

three-year sentence, as the Rule 35 motion was filed after sentence was imposed. Accordingly, 

the invited error doctrine has no bearing on Radford’s claim on appeal. 
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sentencing are sufficient to establish a challenge to the legality of his sentence. Howard, 122 Idaho 

at 10-11, 830 P.2d at 521-22. 

In Howard, the minutes from sentencing included the notation: “18-4006 I.C. veh

manslaughter does not include suspension of license.” Id. at 10, 830 P.2d at 521. The trial court 

commented:

As this Court noted, both when I told you about the maximum penalty for 

this crime, and as your attorney has very competently commented on it today, the 

power of this Court to suspend your driving privileges in the future can be 

questioned . . . .

Id. at 10-11, 830 P.2d at 521-22. Based on the court minutes and the comments of the trial court, 

the Idaho Supreme Court concluded that the appellant had raised the issue of the legality of his 

sentence before the trial court and, therefore, the issue was properly before the Court on appeal. 

Id.

Here, following the State’s recommendation of a five-year sentence, Radford addressed the 

district court saying he believed the maximum sentence he was subject to was two and one-half 

years. When the district court indicated it was going to impose a sentence for the charge of 

destruction of evidence, Radford interjected: “[a]ttempted.” The district court responded: 

“Attempted destruction is the same as destruction of evidence” and imposed a three-year sentence. 

As in Howard, Radford’s statements and the district court’s comments indicate that the legality of 

a sentence exceeding two and one-half years for attempted destruction of evidence was considered 

by the district court. Thus, the issue is properly preserved for our review.

The authorized punishment for destruction of evidence is a maximum fine of ten thousand 

dollars ($10,000) and a maximum sentence of five (5) years in prison. I.C. § 18-2603. Attempts 

are governed by I.C. § 18-306, which provides in pertinent part:

If the offense so attempted is punishable by imprisonment in the state prison 

for five (5) years or more but for less than life imprisonment, or by imprisonment 

in the county jail, the person guilty of such attempt is punishable by imprisonment 

in the state prison, or in the county jail, as the case may be, for a term not exceeding 

one-half (1⁄2) the longest term of imprisonment prescribed upon a conviction of the 

offense so attempted.

Accordingly, the maximum penalty for attempted destruction of evidence is two and one-half 

years. 

The district court’s comments at sentencing indicate that it did not understand the 

maximum sentence it could impose for the crime of attempted destruction of evidence because the 
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court believed that destruction of evidence included attempts; therefore, the court believed it could

legally impose a sentence of up to five years as authorized by I.C. § 18-2603.

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 Because the threeyear sentence imposed by the district court exceeded the maximum penalty authorized for 

attempted destruction of evidence, the district court imposed an illegal sentence. Accordingly, we 

vacate Radford’s sentence and remand the case to the district court for a new sentencing hearing. 

 IV. 

CONCLUSION 

The district court imposed an illegal sentence when it sentenced Radford to three years for 

attempted destruction of evidence. Accordingly, we vacate Radford’s sentence, and the case is 

remanded to the district court for resentencing. 

Judge LORELLO and Judge BRAILSFORD CONCUR. 

 

3 We need not address whether at sentencing the district court was correct in its view that 

Idaho Code § 18-306 includes attempt because the merits of that issue have not been raised or 

argued on appeal. Moreover, regardless of the court’s belief, it is clear from the record that 

Radford was bound over on and pled guilty to attempted destruction of evidence and that he was 

advised at the time of his guilty plea that the maximum penalty was two and one-half years.