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. Wa sden, 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 mis interpreting I daho C ode § 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 J udgment of P rior C onviction is A dmissible U nder I.R.E. 902(4) , I t Need N ot A lso C omply wit h the P rovisions of Idaho C ode § 9

- 312 to be A dmissible
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 authenti cated under the provisions of Idaho C ode § 9

- 312. The district court overruled the objection, holding that the documents were properly certified and authenticated under the provisions of the Idaho Rule s of Evidence and that complian ce with the statute was therefore unnecessary. On appeal
, Toyne claims error
, asserting that compliance with the statute is a prerequisite to admissibility.
The s tatute on which Toyne relies, Section 9

- 312, authorizes a uthentication of judicial
record s 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 co rrect 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 Cour t.
(emphasis added). R ecently, in State v. Howard , 150 Idaho 471, 248 P.3d 722 (2011) , the Idaho Supreme Court considered whether compliance with the st ri ctures of Section 9

- 312 is necessary for admission of records that comply with the certification sta ndards 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 conflic t 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 prescribe d 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 conf lict 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 47 7

- 8 1, 248 P.3d at 728

- 29

. In light of Howard , the district court’s evidentiary ruling here was correct and Toyn e’s claim of error is without merit.
B. Idaho’s P ersistent V iolator Sentence Enhancement S tatute, I daho C ode § 19

- 2514, D oes N ot P reclude S uspension of a S entence and Mandates O nly a Five

- year M inimum U nified S entence
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 C ode § 19

- 2514, which provides: Any person convicted for the third time of the commission of a felony, whether the previous convictions wer e 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 prohib it suspension of the sentence.
At Toyne’s sentencing hearing
, t he district court responded to Toyne’s request that the

court re tain jurisdiction pursuant to Idaho C ode § 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 t hose sentences are not to be what in their opinion is reduced by the use of4 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

t o 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

. T he 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 l enity, 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 histo rical 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 C ode § 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 als o 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 defend ant 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

o n probation, I.C. § 19

- 2601(4) and (5); (c) withhold judgment and place the defenda nt 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 senten ces 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 reduc ed.” 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 ava ilable 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 legisl ature 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 fixe d
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 I daho
C ode § 19

- 2601 alternative sentencing options, or any of t hem, are un available 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 comm uted? 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 f or probation or other sentencing alternatives, it has demonstrated its ability to make that intent entirely clear. For example, Idaho Code § 37

- 2732B specifies that offense s 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 n ot 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 Sta te v. Anderson
, ___ Idaho ___, ___ P.3d ___, ___ (Ct. App. Aug. 26, 2011), we held that a minimum ten

- year fixed term is not required by I daho C ode § 18

- 4 0 04 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 r obbery “ 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 “ a lthough the statute says that the minimum sentence for robbery is five years, the minimum period of confinement under the sentence, pursuant t o the Unified Sentencing Act,
Idaho C ode § 19

- 2513, may be for a term less than five years. ” We reached the same conclusion with respect to Idaho C ode § 18

- 6605 , which provides that the infamous crime against nature “ is7 punishable by imprisonment in the state prison not less than five years.” S ee S tate 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 enhan cement statute at issue here, Idaho C ode § 19

- 2514, does not require a minimum fixed term of imprisonment, is consistent with th e 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
I daho C ode § 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. T he statute requires only a unified se ntence 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 fashio ned had the court properly understood the scope of its sentencing discretion . When this occurs, the proper remedy
is to vacate the senten ce 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. S ee, e.g. , S tate 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 C ode § 37

- 2739B to require a five

- year fixed minimum sentence without suspension of the sentence despite nonmandatory language in some portions of the statute.