1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 45171

STATE OF IDAHO ,

Plaintiff

- Respondent ,

v.

MICHAEL WILSON ,

Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) Filed: June 20, 2018

Karel A. Lehrman, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Second Judicial District, State of Idaho, Nez Perce County. Hon. Jeff M. Brudie , District Judge.

O rder denying I.C.R. 35 motion to correct an illegal sentence, affirmed

.
Eric D. Fredericksen, State Appellate Public Defender; Maya P. Waldron , Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson , Deputy Attorney General, Boise, for respondent.

________________________________________________ LORELLO, Judge
Michael Wilson appeals from the district court ’ s order denying his I.C.R. 35 motion to
correct an illegal sentence. Wilson argues that his motion was timely and his sentence for
aggravated assault and a weapon enhancement violates the Double Jeopardy C lause of the Idaho

Constitution. For the reasons set forth below, we affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND
A jury found Wi lson guilty of aggravated assault, I.C. § 18

- 905, and burglary,

I.C. § 18

- 140 1

. The jury also found that Wilson used a firearm when he committed both crimes.

The district court sentenced Wilson to a un ified term of twelve years, with a minimum period of
confinement of four years, for aggr avated assault and use of a deadly weapon , I.C. § 19

- 2520,2 and a unified term of three years, with a minimum period of confinement of one year, for
burglary. The distr ict court ordered the two sentences to run consecutively. Wilson appealed,
arguing that hi s sentences are excessive. In an unpublished opinion, this Court affirmed

Wilson’s judgme nt of conviction and sentences. State v. Wilson , Docket 41883 (C t. App.
Ap r. 15, 2015). Wilson filed a pro se Rule 35 motion arguing the weapon enhancement applied
to his aggravated assault sentence is illegal because it constitutes double jeopardy under the

Idaho and United States Constitutions

. 1 The district court denied Wilson’s motion, finding that it
was untimely 2 and that the double jeop ardy argument was without merit

. Wilson appeals.

II.

STANDARD OF REVIEW
In an appeal from the denial of a Rule 35 motion to correct an illegal sentence, the
question of whether the se ntence imposed is illegal is a question of law freely review ed

. State v.
Josephson

, 124 Idaho 286, 287, 858 P.2d 825, 826 (Ct. App. 1993); State v. Rodriguez

, 119
Idaho 895, 897, 811 P.2d 505, 507 (Ct. App. 1991).

III.

ANALYSIS
Wilson argues that the district court erred by denying his Rule 35 motion to correct an

ille gal sentence because the weapon enhancement applied to Wilson’s aggravated assault

sentence violated the Double Jeopardy C l ause of the Idaho Constitution . Specifically, Wilson

contends t he enhancement resulted in multiple punishments for the same offense

. We affirm.

Idaho Code Section 19

- 2520 authorizes a sentencing enhancement for use of a weapon
for certain enumerated offenses, including the two substantive offenses th e jury found Wilson
guilty of

-- aggravated assault and burglary. 3 Section 19

- 2520 reads, in part:

1 Wilson did not challenge his burglary sentence in his Rule 35 motion

.
2 Because the State concedes on appeal that Wilson’s motion was timely to the extent it challenged the legality of his sentence, we need not address the district court’s conclusion that the motion was untimely.

3 As noted, Wilson did not challenge the se ntencing enhancement as applied to the burglary conviction

.3 Any person convicted of a violation of sections 18

- 905 (aggravated assault defined)

. . . [and] 1 8

- 1401 ( burglary defined) . . . who displayed, used, threatened, or attem pted 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 maxim um sentence authorized for the crime for which the person was convicted by fifteen (15) years.

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

I.C. § 19

- 2520.
The constitutional prohibition against double jeopardy provides basic protections 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 I.C. § 19

- 2520 doe s not prescribe a separate offense , but only provides for the
imposition of additional punishment for the use of a firearm in the commission of certain

enumerated offenses. State v. Smith , 103 Idaho 135, 137, 654 P.2d 369, 371 (1982). As such,
I.C. § 19

- 2520 does not implicate double jeopardy. Smi th , 103 Idaho at 137, 654 P.2d at 371.
The Idaho Supreme Court recently reaffirmed this conclusion in State v. Passons

, ___ Idaho ___,

417 P.3d 240 (2018).
Notwithstanding Smith

, 4 Wilson asks this Court to afford greater double jeopardy
protections in r elation to sentencing enhancements under the Idaho C onstitution like the Montana
Supreme Court did in State v. Guillaume , 975 P.2d 312 (Mont. 1999). We decline to do so. T he
Idaho Supreme Court has rejected arguments that the I.C. § 19

- 2520 sentencing en hancement
violates double jeopardy. See

, e.g. , Passons

, ___ Idaho at 246

, 417 P.3d at ___ ; Smith , 103
Idaho at 137, 654 P.2d at 371; Metzgar , 109 Idaho at 734

- 35, 710 P.2d at 644

- 45. When there is
controlling precedent on questions of Idaho law, the rule of stare decisis di ctates that we follow it
absent a showing that the law is manifestly wrong, unjust, or unwise, or unless overruling it is
necessary to vindicate plain, obvious pri nciples of law and to remedy continued injustice. State

4 The Idaho Supreme Court’s opinion in Passons was not issued when Wilson filed his brief in this case.4 v. Grant , 154 Idaho 281, 287, 297 P.d 244, 250 (2013). W e are not persuaded that the Montana
Supreme Court’s recognition of greater protections under the Montana Constitution is a reason

for this Co urt to disregard Idaho precedent. We hold that t he district court did not err when it

denied Wilson ’ s Rule 35 motion.

IV.

CONCLUSION

T he I.C. § 19

- 2520 weapon enhancement applied to Wilson ’ s aggravated assault sentence

d oes not violate double jeopardy

. The refore, the district court ’ s order denying Wilson’s Rule 35

motion for correction of an illegal sentence is affirmed.
Judge GUTIERREZ and Judge HUSKEY, CONCUR

.