1

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 35402

STATE OF IDAHO,

Plaintiff-Respondent,

v.

PETER L. TOYNE,

Defendant-Appellant.

)

)

)

)

)

)

)

)

)

)

2011 Opinion No. 66

Filed: November 14, 2011

Stephen W. Kenyon, Clerk

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

Elmore County. Hon. Michael E. Wetherell, District Judge. 

Judgment of conviction for felony driving under the influence, affirmed, sentence 

vacated, and case remanded for resentencing.

Molly J. Huskey, State Appellate Public Defender; Eric D. Fredericksen, Deputy 

Appellate Public Defender, Boise, for appellant. 

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

Attorney General, Boise, for respondent. 

________________________________________________

LANSING, Judge

Peter L. Toyne was convicted of felony driving under the influence (DUI), with a 

sentence enhancement under Idaho Code § 19-2514 for being a persistent violator of the law. 

The district court imposed a unified sentence of fifteen years, with seven years fixed. Toyne 

appeals, contending that the district court erred at trial in admitting documentary evidence of 

Toyne’s previous DUI convictions over his objection. He also contends that the district court 

abused its sentencing discretion by misinterpreting Idaho Code § 19-2514 to require a five-year 

fixed term of imprisonment for a persistent violator and to prohibit a suspended sentence. We 

affirm the conviction, but vacate the sentence and remand for resentencing.
2

I.

ANALYSIS

A. If a Judgment of Prior Conviction is Admissible Under I.R.E. 902(4), It Need Not 

Also Comply with the Provisions of Idaho Code § 9-312 to be Admissible

Toyne was charged with DUI for conduct on June 21, 2007, elevated to a felony because 

he had previously been convicted of felony DUI within the past fifteen years. I.C. §§ 18-8004, 

18-8005(7) (2006). At trial, the State offered documents to prove that Toyne had three prior 

felony DUI convictions in other states. Toyne objected, contending that the documents were 

inadmissible because they were not properly authenticated under the provisions of Idaho Code

§ 9-312. The district court overruled the objection, holding that the documents were properly 

certified and authenticated under the provisions of the Idaho Rules of Evidence and that 

compliance with the statute was therefore unnecessary. On appeal, Toyne claims error, asserting 

that compliance with the statute is a prerequisite to admissibility.

The statute on which Toyne relies, Section 9-312, authorizes authentication of judicial 

records in the following manner:

A judicial record of this state, or of the United States, may be proved by 

the production of the original, or by a copy thereof, certified by the clerk or other 

person having the legal custody thereof. That of another state or territory may be 

proved by the attestation of the clerk and the seal of the court annexed, if there be 

a clerk and seal, together with a certificate of the chief judge or presiding 

magistrate, that the attestation is in due form. 

(emphasis added). Idaho Rule of Evidence 902(4), however, provides that the following records 

are self-authenticating:

A copy of an official record or report or entry therein, or of a document 

authorized by law to be recorded or filed and actually recorded or filed in a public 

office, including data compilations in any form, certified as correct by the 

custodian or other person authorized to make the certification, by certificate 

complying with paragraph (1), (2), or (3) of this rule or complying with any law 

of the United States or of this State, or rule prescribed by the Idaho Supreme 

Court.

(emphasis added). Recently, in State v. Howard, 150 Idaho 471, 248 P.3d 722 (2011), the Idaho 

Supreme Court considered whether compliance with the strictures of Section 9-312 is necessary 

for admission of records that comply with the certification standards of I.R.E. 902(4). The Court 

there rejected the same argument that is now presented by Toyne:
3

If I.C. § 9–312 was written to be the exclusive means of admitting and 

proving judicial records, I.C. § 9–312 would conflict with the I.R.E.’s 

authentication standards under 902(4) and, thus, I.C. § 9–312 would have no force 

or effect pursuant to I.R.E. 1102. However, I.C. § 9–312 may be read as merely 

providing an alternate way of admitting and proving judicial records, which 

would not conflict with the I.R.E. As stated in I.R.E. 902(4), a copy of a public 

record can be self-authenticated if it is certified in accordance with either

I.R.E. 902(1), I.R.E. 902(2), I.R.E. 902(3) or “any law of the United States or of 

this State, or rule prescribed by the Idaho Supreme Court.” As a law of this State, 

I.C. § 9–312 provides one such means of certifying a public record. We hold that 

I.C. § 9–312 is not a separate, additional requirement for admitting and proving 

judicial records, as this would conflict with the I.R.E.; however, I.C. § 9–312 is 

one method by which a public record may be certified in accordance with 

I.R.E. 902(4).

Id. at 477-81, 248 P.3d at 728-29. In light of Howard, the district court’s evidentiary ruling here 

was correct and Toyne’s claim of error is without merit.

B. Idaho’s Persistent Violator Sentence Enhancement Statute, Idaho Code § 19-2514, 

Does Not Preclude Suspension of a Sentence and Mandates Only a Five-year 

Minimum Unified Sentence

In addition to being found guilty of felony DUI, Toyne was found by the jury to be a 

persistent violator subject to a sentence enhancement under Idaho Code § 19-2514, which 

provides:

Any person convicted for the third time of the commission of a felony, 

whether the previous convictions were had within the state of Idaho or were had 

outside the state of Idaho, shall be considered a persistent violator of law, and on 

such third conviction shall be sentenced to a term in the custody of the state board 

of correction which term shall be for not less than five (5) years and said term 

may extend to life.

Toyne contends that the district court abused its sentencing discretion by misinterpreting that 

statute as requiring a minimum of a five-year fixed sentence for a persistent violator and to 

prohibit suspension of the sentence. 

At Toyne’s sentencing hearing, the district court responded to Toyne’s request that the 

court retain jurisdiction pursuant to Idaho Code § 19-2601(4) as follows:

Mr. Toyne, in your case there is a minimum mandatory sentence of no less 

than five years that the Court must impose. In addition, I understand [defense 

counsel’s] argument with regard to the rider program. But I believe that our 

legislature has expressed a policy with regard to minimum mandatory sentences. 

That those sentences are not to be what in their opinion is reduced by the use of 
4

riders or alternate sentencing. They believe that minimum mandatories are to be 

served in the State Penitentiary.

And even if [defense counsel] is right with regard to there being a policy 

to allow a rider even with a minimum mandatory sentence, in this case the Court 

believes it would make no sense because you would go through a program for six 

months and you would come back here and I would still have to sentence you to a 

minimum mandatory five years in the Idaho State Penitentiary.

There is no way of getting around a minimum mandatory sentence 

mandated by the Idaho legislature.

Thus, the district court reasoned that even if Idaho’s persistent violator statute allowed the court 

to retain jurisdiction, because it did not allow the court to suspend the sentence at the end of the 

retained jurisdiction period, such a disposition would be pointless. The district court apparently 

also understood the statute to require that the enhanced sentence include at least a five-year fixed 

term of imprisonment.

The State concedes error in the district court’s interpretation of Section 19-2514 in view 

of our holding in State v. Harrington, 133 Idaho 563, 990 P.2d 144 (Ct. App. 1999). We there 

determined that this statute requires only a unified sentence of at least five years, not a fixed term 

of five years, and that the sentence can be suspended. In Harrington, we rested our decision 

largely upon the principle of lenity, which provides that where ambiguity exists, criminal statutes 

should be interpreted narrowly and in a manner that is lenient toward defendants. Id. at 566, 990 

P.2d at 147. Because imprecision in the language of some sentencing statutes, and historical 

changes in legislatively prescribed sentencing schemes and options, continue to cause some 

confusion for the bench and bar, we will here expand somewhat upon the explanation of our 

holding in Harrington.

Idaho’s Unified Sentence Act, Idaho Code § 19-2513, directs that for a felony, the court 

is to impose a unified sentence that is composed of a specified fixed (determinate) term of 

incarceration followed by an indeterminate term. During the indeterminate portion of the 

sentence, the individual may be released on parole. The statute directs that if the offense or an 

enhancement carries a mandatory minimum penalty, “the court shall specify a minimum period 

of confinement consistent with such statute.” 
5

For most types of crimes, the legislature has also authorized, in Idaho Code § 19-2601, an 

array of sentencing alternatives.1 For most felonies, an Idaho trial court may: (a) suspend the 

execution of a sentence to the custody of the state board of correction at the time of judgment 

and place the defendant on probation, I.C. § 19-2601(2) and (5); (b) retain jurisdiction for 365 

days, during which the court may suspend the execution of the sentence and place the defendant 

on probation, I.C. § 19-2601(4) and (5); (c) withhold judgment and place the defendant on 

probation, I.C. § 19-2601(3) and (5); or (d) commute the sentence and confine the defendant in 

the county jail, I.C. § 19-2601(1). 

The Idaho Legislature unquestionably may, by appropriate statutory language, prescribe 

mandatory minimum fixed sentences for crimes; that authority is plainly expressed in a 1978 

amendment to Article V, Section 13 of the Idaho Constitution, which now states: “[T]he 

legislature can provide mandatory minimum sentences for any crimes, and any sentence imposed 

shall be not less than the mandatory minimum sentence so provided. Any mandatory minimum 

sentence so imposed shall not be reduced.” This constitutional authority also allows the 

legislature to preclude suspension of the sentence for particular crimes or preclude use of other 

alternative sentencing options that might otherwise be available to the sentencing court. State v. 

Pena-Reyes, 131 Idaho 656, 656-57, 962 P.2d 1040, 1040-41 (1998); State v. Puetz, 129 Idaho 

842, 843-44, 934 P.2d 15, 16-17 (1997).

When the legislature has chosen to prescribe a minimum sentence that must be imposed 

upon conviction of a crime or upon a finding that a particular sentence enhancement is 

applicable, the first question that arises is whether the statute requires the imposition of a fixed

term of confinement or whether a unified term of confinement of the specified length is all that is 

required. A second and related question is whether the legislature has directed that the Idaho 

Code § 19-2601 alternative sentencing options, or any of them, are unavailable for the particular

crime or sentence enhancement. That is, has the legislature mandated that the sentence may not 

be suspended, that jurisdiction cannot be retained, that judgment cannot be withheld or that the 

sentence cannot be commuted? All of these inquiries are matters of legislative intent, gleaned 

first and foremost from the language of the particular statute.

 

1 The first sentence of the statute prohibits these alternative sentencing options for the 

crimes of treason and murder. 
6

When the legislature has intended to require that a prescribed minimum sentence be a 

fixed term, without opportunity for probation or other sentencing alternatives, it has 

demonstrated its ability to make that intent entirely clear. For example, Idaho Code § 37-2732B 

specifies that offenses of trafficking in certain controlled substances carry “mandatory minimum 

fixed term(s) of imprisonment,” (emphasis added) and “[n]otwithstanding any other provision of 

law, with respect to any person who is found to have violated the provisions of this section, 

adjudication of guilt or the imposition or execution of sentence shall not be suspended, deferred, 

or withheld, nor shall such person be eligible for parole prior to serving the mandatory minimum 

fixed term of imprisonment prescribed in this section. Further, the court shall not retain 

jurisdiction.” I.C. § 37-2732B(8).

When, however, the statute provides only that a particular crime is punishable by a term 

of custody or imprisonment of not less than a specified number of years, it has generally been 

held that the statute does not require that this term be fixed. Thus, in State v. Anderson, ___ 

Idaho ___, ___ P.3d ___, ___ (Ct. App. Aug. 26, 2011), we held that a minimum ten-year fixed 

term is not required by Idaho Code § 18-4004 which provides, “Every person guilty of murder of 

the second degree is punishable by imprisonment not less than ten (10) years and the 

imprisonment may extend to life.” We adhered to our prior holdings that there is no mandatory 

fixed or determinate period of confinement for second degree murder, but the unified sentence, 

encompassing both the fixed and indeterminate terms, must be at least ten years. Anderson, ___ 

Idaho at ___, ___ P.3d at ___. See also State v. Hansen, 120 Idaho 286, 290 n.1, 815 P.2d 484, 

488 n.1 (Ct. App. 1991); State v. Paul, 118 Idaho 717, 720, 800 P.2d 113, 116 (Ct. App. 1990). 

We similarly interpreted Idaho Code § 18-6503, which states that robbery “is punishable by 

imprisonment in the state prison not less than five (5) years, and the imprisonment may be 

extended to life.” In State v. Haggard, 116 Idaho 276, 277, 775 P.2d 168, 169 (Ct. App. 1989), 

we held that “although the statute says that the minimum sentence for robbery is five years, the 

minimum period of confinement under the sentence, pursuant to the Unified Sentencing Act, 

Idaho Code § 19-2513, may be for a term less than five years.” We reached the same conclusion 

with respect to Idaho Code § 18-6605, which provides that the infamous crime against nature “is 
7

punishable by imprisonment in the state prison not less than five years.” See State v. Hayes, 121 

Idaho 232, 235, 824 P.2d 163, 166 (Ct. App. 1992).

2

Our decision in Harrington, holding that the persistent violator sentencing enhancement 

statute at issue here, Idaho Code § 19-2514, does not require a minimum fixed term of 

imprisonment, is consistent with the foregoing authorities. Section 19-2514 does not state that 

the five-year minimum sentence must be fixed or that the sentence may not be suspended. In 

Harrington, we held that a 1986 amendment to Idaho Code § 19-2513 did not implicitly amend 

Idaho Code § 19-2514 to remove the court’s power to suspend a sentence. Harrington, 133 

Idaho at 567, 990 P.2d at 148. We now hold that it likewise did not implicitly amend Section 19-

2514 to mandate a minimum fixed sentence. The statute requires only a unified sentence of at 

least five years and such sentence may, in the court’s discretion, be suspended.

Toyne has shown that the district court here misperceived the scope of its sentencing 

discretion and may have imposed a harsher sentence than it would have fashioned had the court 

properly understood the scope of its sentencing discretion. When this occurs, the proper remedy 

is to vacate the sentence and remand for resentencing. Anderson, ___ Idaho at ___, ___ P.3d at 

___. We do so here.

II.

CONCLUSION

The judgment of conviction is affirmed. The sentence is vacated and this case is 

remanded to the district court for resentencing.

Chief Judge GRATTON and Judge GUTIERREZ CONCUR.

 

2 Statutory interpretation is made problematic when legislative intent is stated clearly in 

one portion of the statute but imprecise language elsewhere in the statute creates room for 

argument as to its meaning. See, e.g., State v. Patterson, 148 Idaho 166, 170, 219 P.3d 813, 817 

(Ct. App. 2009) and State v. Ayala, 129 Idaho 911, 918-19, 935 P.2d 174, 181-82 (Ct. App.

1996), both interpreting Idaho Code § 37-2739B to require a five-year fixed minimum sentence

without suspension of the sentence despite nonmandatory language in some portions of the 

statute.