1

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 44069

STATE OF IDAHO,

Plaintiff-Respondent,

v.

RICHARD J. HIBBERT,

Defendant-Appellant.

)

)

)

)

)

)

)

)

)

)

2016 Unpublished Opinion No. 679

Filed: September 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THIS IS AN UNPUBLISHED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 Fifth Judicial District, State of Idaho, 

Minidoka County. Hon. Michael R. Crabtree, District Judge. 

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

affirmed.

Eric D. Fredericksen, Interim State Appellate Public Defender; Brian R. Dickson, 

Deputy Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney 

General, Boise, for respondent. 

________________________________________________

Before GUTIERREZ, Judge; GRATTON, Judge;

and HUSKEY, Judge

________________________________________________

PER CURIAM

Richard J. Hibbert pled guilty to lewd conduct with a minor child under sixteen, Idaho 

Code § 18-1508. The district court sentenced Hibbert to a determinate life sentence.

At issue in this appeal is Hibbert’s third Idaho Criminal Rule 35 motion for correction of 

an illegal sentence, asserting that his determinate life sentence is illegal from the face of the 

record because it was in conflict with Blakely v. Washington, 542 U.S. 296 (2004) and Apprendi 

v. New Jersey, 530 U.S. 466 (2000). Hibbert received a determinate life sentence without the 

possibility of parole. Hibbert asserts the sentence violated his Sixth Amendment right. 

Specifically, he claims that a life sentence is the most he can receive under Idaho law for his 
2

crime. The district court denied the motion, concluding that Hibbert’s sentence was legal from 

the face of the record and was permitted by the applicable statute. The State asserts that the 

motion is barred by the doctrine of res judicata.

Hibbert filed an I.C.R. 35 motion for correction of an illegal sentence in 2012 asserting 

the same claim as made in the instant matter. This Court affirmed the district court’s denial of 

the motion. State v. Hibbert, Docket No. 40088 (Ct. App. Feb. 19, 2013) (unpublished). Hibbert 

filed a second Rule 35 motion for correction of an illegal sentence in 2015, asserting the same 

claims. The district court denied the motion, and Hibbert did not appeal. That decision became 

final before Hibbert filed the instant motion. The doctrine of res judicata bars relitigation of 

issues that have been previously decided in a final judgment or decision in an action between the 

same litigants. See State v. Rhoades, 134 Idaho 862, 863, 11 P.3d 481, 482 (2000). In Rhoades, 

the Idaho Supreme Court held that “the doctrine of res judicata can be applied to bar 

consideration of subsequent Rule 35 motions to the extent those motions attempt to relitigate 

issues already finally decided in earlier Rule 35 motions.” Id. The claims made by Hibbert that 

his sentence is illegal are barred by res judicata. 

Hibbert’s claims are also without merit. The Idaho Supreme Court as held in State v. 

Stover, 140 Idaho 927, 104 P.3d 969 (2005) that Blakely and Apprendi do not have an impact on 

Idaho’s sentencing scheme and that I.C. § 18-1508 authorizes imprisonment for a term of not 

more than life for lewd conduct. The Supreme Court has also held in State v. Cross, 132 Idaho 

667, 978 P.2d 227 (1999) that a determinate life sentence for a lewd conduct conviction is legal. 

The district court’s order denying Hibbert’s Rule 35 motion is affirmed.