1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 41222

STATE OF IDAHO , Plaintiff-Respondent ,

v.
CODY WILLIAM PARMER,

Defendant-Appellant

. ) ) ) ) ) ) ) ) ) ) 2014 Unpublished Opinion No. 480

Filed: April 25, 2014

Stephen W. Kenyon , Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Richard S. Christensen , District Judge.

Judgment of conviction for felony failure to register as a sex offender, affirmed

. Sara B. Thomas, State Appellate Public Defender; Ben Patrick McGreevy
, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson , Deputy Attorney General, Boise, for respondent.

________________________________________________ GUTIERREZ, Chief Judge Cody William Parmer appeals from his judgment of conviction for felony fai lure to register as a sex offender, entered upon his conditional guilty plea preserving the right to appeal
the denial of his motion to dismiss . W e affirm.

I.
FACTS AND PROCEDURE In August 2011, a district court entered a judgment of conviction against Pa rmer for battery with intent to commit a serious felony, rape, in violation of Idaho Code §§ 18

- 903 and

18

- 911

. As a result of that conviction, Parmer had a duty to register as a sex offender pursuant to
Idaho Code § 18

- 8304.

Par mer was subsequently charged with felony failure to register as a sex offender
pursuant to Idaho Code §§ 18

- 8309 and 18

- 8311. Specifically, it was alleged that Parmer f ailed to provide written notice of a change of address. Parmer filed a motion to dismiss the charge,2 asser t ing that he had no duty to register as a sex offender. Parmer’s assertion was predicated on
his argument that the underlying conviction creating the duty to register was invalid. In his underlying conviction, Parmer was charged under two alternative th eories, battery with intent to commit rape or battery with intent to commit statutory rape. Prior to Parmer’s trial, the legislature amended the definition of statutory rape

. 2010 Idaho Sess. Laws ch. 352, § 1

. Parmer’s alleged conduct would not have violated the redefined statutory rape section. Still, t he district court denied Parmer’s motion to dismiss the failure to register charge , relying

upo n Idaho Code § 67

- 513. This section provides that the repeal o f a criminal law does not constitute a bar to the prosecution and punishment of an act committed in violation of the law while it was still in effect, unless a contrary intention is expressly declared in the repealing act. Parmer entered a conditional gu ilty plea to the charge , reserving his right to appeal the
court’s denial of his motion to dismiss. The district court imposed a unified five

- year sentence , with three years determinate, but suspended the sentence and retained jurisdiction. Parmer timely appeals.

II.
ANALYSIS

Parmer ar g u es the district court abus ed its discretion by denying his motion t o dismiss the charge of felony failure to register. Parmer specified three reasons in support of his position: (1) the verdict form in the underlying conviction did not indicate whether the jury convicted Parmer of battery with intent to commit forcible rape or battery with intent to commit statutory

rape ; (2) the conduct underlying the prior conviction was no longer c overed by the statutory rape statute at the time of trial and sentencing in that case; and (3) a conviction for battery with intent to commit statutory rape would not establish a duty on Parmer to register as a sex offender.
“This Court reviews a district court’s decision on a motion to dismiss a criminal action
for an abuse of discretion.” State v. Martinez

- Gonzalez , 152 Idaho 775, 778, 275 P.3d 1, 4 (Ct. App. 2012) (citing I.C.R. 48(a) ; State v. Dixon , 140 Idaho 301, 304, 9 2 P.3d 551, 554 (Ct. App. 2004) ). When a trial court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi

- tiered inquiry to determine: (1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted withi n the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it;3 and (3) whether the lower court reached its decision by an exercise of reason. State v. Hedger
, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989). Parmer acknowledges that decisional law from the United States Supreme Court and Idaho Supreme Court prohibit a defendant from collaterally attacking the validity of a previous
conviction with the sole exception of convictions obtained in viol ation of the right to co u nsel

. See Custis v. United States , 511 U.S. 485 (1994); State v. Weber , 140 Idaho 89, 92, 90 P.3d 314,

317 (2004); State v. Warren , 135 Idaho 836, 839

- 40, 25 P.3d 859 , 862

- 63 (Ct. App. 2001)

. 1 In cases such as Parmer’s, a constitutional right to collaterally attack a prior conviction has been
limited to violati o n s of the right to counsel because failure to appoint counsel is a unique
constitutional defect

. Custis , 511 U.S. at 496. Parmer does not challenge the validity o f the prior conviction on the basis that he was denied the right to counsel. Also, Parmer has failed to cite

any authority creating an additional exception to the constitutional right to colla terally attack the validity of his previous conviction.
Accordi ngly , the district court was within the boundaries of its discretion in denying
Parmer’s motion to dismiss. Therefore, Parmer’s judgment of conviction is affirmed. Judge LANSING and Judge MELANSON CONCUR.

1 In t he cases cited, the previous conviction was used for sentence enhancement purposes.