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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 47236

STATE OF IDAHO,

Plaintiff-Respondent,

v.

CHRISTOPHER DIRK BAAY,

Defendant-Appellant.

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Opinion Filed: December 3, 2020

Melanie Gagnepain, Clerk

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

County. Hon. Thomas J. Ryan, District Judge. 

Sentence, vacated; and case remanded.

Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

HUSKEY, Chief Judge

Christopher Dirk Baay was convicted of felony domestic violence or assault, prior felony 

within fifteen years, under Idaho Code §§ 18-918(5), -901(a or b), with a sentencing enhancement 

under I.C. § 19-2514 for being a persistent violator of the law. The district court sentenced Baay 

to a unified sentence of ten years, with five years determinate. Baay appeals, arguing the district 

court abused its discretion by misinterpreting I.C. § 19-2514 to require a minimum sentence of 

five years determinate. The district court erred in its interpretation of I.C. § 19-2514 and this error

may have led the district court to impose a harsher sentence than it would have otherwise imposed. 

We vacate the sentence and remand the case for a new sentencing hearing.
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I. 

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Baay with felony domestic violence or assault and misdemeanor battery 

and alleged that he is a persistent violator of the law. Following a trial, the jury found Baay guilty 

of felony domestic assault and not guilty of misdemeanor battery. Baay admitted to being a 

persistent violator. 

At sentencing, the State recommended a unified sentence of eight years, with two years 

determinate. Baay’s counsel recommended the district court retain jurisdiction, but did not 

recommend a specific sentence. After the parties gave their recommendations, the district court 

asked about the required sentence under the persistent violator statute:

Counsel, however, I want to inquire. The recommendation from the State 

is two-plus-six or a unified sentence of eight years. But correct me if I am wrong, 

but that would be an illegal sentence given the fact he has admitted being a 

persistent violator. It’s no less than five years and up to life that I need to impose 

here. So it would appear that the Court couldn’t accept the State’s recommendation.

 Am I correct about that? 

The State responded: 

That’s an interesting question, Your Honor, because in my experience 

different district court judges here in Ada County view that five-to-life differently. 

Some have--and it appears to be your view--that you have to at least impose a 

minimum of five years fixed and go up to life. But in my experience, the majority 

feel that the sentence has to be at least five, that it cannot add up to less than five. 

The district court asked Baay’s counsel if that had been his experience in Ada County as 

well, and he responded: 

My understanding--and I have had people who get persistent violator convictions 

who have actually been placed on probation--is that, whatever sentence you get has 

to be at least five years in its entirety. For instance, you couldn’t send him to prison 

for a one-plus-two or zero-plus-three, but it doesn’t have to be fixed. It says that--

although I can’t quote you a case, I have read case law that reflects, again, that it 

does have to be a prison sentence. But it says shall be sentenced to a term in custody 

of the State Board of Corrections for not less than five and may extend to life. 

The language, I believe, mirrors robbery. Robbery says sentenced to the 

Department of Corrections for a minimum of five up to life. And I think in the 

Court’s experience, you can give people riders; you can give people probation on 

robberies. So I just believe--I believe what you have to do is obviously divide out 

the sentence, so I think you can give a two-plus-six, but you have to say something 

like I’m giving a, you know, two-plus-three for the offense, and I am extending that 

for purposes of the persistent violator to a zero-plus-three consecutive. 
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The district court thanked the parties for their “clarification,” and Baay addressed the court. 

In response to Baay’s statement, the district court said: 

Domestic violence by its own terms means that there is a victim of a crime. And 

that’s problematic. And so not only does the Court have to look at you and who 

you are and what you have developed over your lifetime, but also the Court needs 

to be concerned about the safety of the community and how you can’t seem to see 

that you are victimizing the community, your loved-ones, your wife, your motherin-law, and others that create a problem. I mean, you’re victimizing your sons by 

the fact you’ve been placed in jail for the last 154 days. You are victimizing your 

mother who stands up for you and says good things about you in the presentence 

investigation, describes you as a good father all of which I think is probably true. 

It’s just that you’re not recognizing that you are creating victims by going out there 

and committing these crimes, and that’s what worries everybody, and that’s what’s 

problematic.

Addressing the persistent violator statute, the district court stated: “Now, I understand that 

there may be a difference of an opinion with regard to how to allocate the time on a persistent 

violator. But I have always taken the view that it is a minimum of five years.” The district court 

discussed various sentencing factors, entered a judgment of conviction, and sentenced Baay to a 

unified sentence of ten years, with five years determinate, and retained jurisdiction. Baay timely 

appeals. 

II. 

STANDARD OF REVIEW

When a trial court’s discretionary decision is reviewed on appeal, the appellate court 

conducts a multi-tiered inquiry to determine whether the lower court: (1) correctly perceived the 

issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted consistently 

with any legal standards applicable to the specific choices before it; and (4) reached its decision 

by an exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018).

III. 

ANALYSIS

Baay argues the district court abused its discretion because it incorrectly believed the 

persistent violator enhancement required the court to sentence Baay to a minimum of five years 

determinate. The State responds that the district court understood it was not required to sentence 

Baay to a five-year determinate sentence and made the discretionary decision to sentence him to a 

unified sentence of ten years, with five years determinate. In the alternative, the State argues that 
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even if the district court did not understand the scope of its discretion, the error was harmless

because it did not impact the court’s sentencing determination. 

Under I.C. § 19-2514, anyone convicted of the persistent violator enhancement “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.” I.C. § 19-2514. In State v. Toyne, 151 Idaho 

779, 781, 264 P.3d 418, 420 (Ct. App. 2011), the district court was under the mistaken belief that 

I.C. § 19-2514 required it to impose a minimum sentence of five years determinate. Toyne, 151 

Idaho at 781-82, 264 P.3d at 420-21. The district court’s misunderstanding was clear from its 

comments when the court declined to place Toyne on a period of retained jurisdiction because:

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.

Id. at 781, 264 P.3d at 420. This Court held that I.C. § 19-2514 does not mandate a minimum 

determinate sentence, but only requires a unified sentence of at least five years, which may, in the 

district court’s discretion, be suspended. Toyne, 151 Idaho at 783, 264 P.3d at 422. Because the 

district court may have imposed a harsher sentence than it would have fashioned had it properly 

understood the scope of its sentencing discretion, this Court held that the proper remedy was to 

vacate the sentence and remand for sentencing. Id.

Here, the district court’s comments indicate that it interpreted I.C. § 19-2514 to require a 

determinate sentence of five years. Although the district court acknowledged both parties’ 

statements regarding the statute’s discretionary nature, the judge noted that “I have always taken 

the view that it is a minimum of five years.” This statement reflects that the district court did not 

recognize it had the discretion to impose a unified sentence, as opposed to a determinate sentence,

of five years. As such, Baay has established that the district court did not properly perceive it had 

discretion to impose less than a five-year determinate sentence. Consequently, because the district 

court did not understand its discretion, it also did not act consistently with the applicable standard 

set forth in Toyne. Accordingly, we hold that the district court abused its discretion when it 

sentenced Baay. 

The State asserts this error was harmless, arguing it is clear from the record that the error 

did not impact the district court’s sentencing determination. Baay argues the district court’s 

comments can only be reasonably understood to mean that it imposed a five-year determinate
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sentence because it believed the statute mandated it, and imposed an additional five years 

indeterminate as extra time for deterrence. 

Like the district court in Toyne, here, the district court’s decision to sentence Baay to a 

unified term of ten years, with five years determinate, was based, at least in part, on the district 

court’s understanding that such a sentence was mandatory. This misunderstanding of the scope of 

its sentencing discretion may have resulted in the imposition of a harsher sentence than the district 

court would have otherwise imposed. When this occurs, the proper remedy is to vacate the 

sentence and remand for resentencing. Toyne, 151 Idaho at 783, 264 P.3d at 422. 

IV. 

CONCLUSION

The district court abused its discretion when it interpreted I.C. § 19-2514 to require a 

minimum sentence of five years determinate. Therefore, the sentence is vacated and the case is 

remanded for a new sentencing hearing.

Judge GRATTON and Judge LORELLO CONCUR.