State v. Clapper

144 P.3d 43, 143 Idaho 338, 2006 Ida. App. LEXIS 92
Idaho Court of Appeals·Decided September 6, 2006·No. Nos. 31578, 31579·Published

Opinion

PERRY, Chief Judge.

Paul P. Clapper, Jr. appeals from the district court’s order on intermediate appeal affirming judgments of conviction and sentences entered by the magistrate. For the reason set forth below, we affirm.

I.

FACTS AND PROCEDURE

Clapper was serving a term of probation under a suspended sentence in Case No. 02-4630. While on probation Clapper was charged with, and pled guilty to, providing false information to a police officer, I.C. § 18-5413, in Case No. 03-11380, and misdemeanor driving without privileges, I.C. § 18-8001, in Case No. 03-15036. At sentencing, the magistrate revoked Clapper’s probation and executed the previously suspended sen[340] tenee in Case No. 02-4630. The magistrate then sentenced Clapper to 180 days incarceration for each of the charges he pled guilty to in Case Nos. 03-11380 and 03-15036, both to run consecutive to each other and the executed sentence in Case No. 02-4630.1 The magistrate suspended both of the 180-day sentences and placed Clapper on consecutive terms of two years probation for a total of four years probation. Clapper appealed the legality of his sentences to the district court. The district court affirmed Clapper’s judgments of conviction and sentences. Clapper again appeals.2

II.

ANALYSIS

On review of a decision of the district court, rendered in its appellate capacity, we examine the record of the trial court independently of, but with due regard for, the district court’s intermediate appellate decision. State v. Bowman, 124 Idaho 936, 939, 866 P.2d 193, 196 (Ct.App.1993). Our appellate standard of review and the factors to be considered when evaluating the reasonableness of a sentence are well established. State v. Burdett, 134 Idaho 271, 1 P.3d 299 (Ct.App.2000); State v. Sanchez, 115 Idaho 776, 769 P.2d 1148 (Ct.App.1989); State v. Reinke, 103 Idaho 771, 653 P.2d 1183 (Ct.App.1982); State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct.App.1982).

A. Probation Consecutive to Incarceration

On appeal, Clapper, relying on this Court’s interpretation of I.C. § 18-308 in State v. Bello, 135 Idaho 442, 19 P.3d 66 (Ct.App.2001), asserts that a court may not order that a term of probation run eonsecufive to a term of incarceration in a separate crime.

Idaho Code Section 18-308 provides:

When any person is convicted of two (2) or more crimes before sentence has been pronounced upon him for either, the imprisonment to which he is sentenced upon the second or other subsequent conviction, in the discretion of the court, may commence at the termination of the first term of imprisonment to which he shall be adjudged, or at the termination of the second or other subsequent term of imprisonment, as the case may be.

In Bello, the defendant was on probation for a previous federal crime when he was found guilty in the relevant Idaho case. The district court sentenced the defendant to a term of incarceration to be served consecutive to his then-existing term of federal probation. On appeal, this Court interpreted I.C. § 18-308 as meaning the statute only applied to terms of imprisonment and excluded terms of probation. Bello, 135 Idaho at 445, 19 P.3d at 69. Therefore, imposing a term of imprisonment to be consecutive to a term of probation was not authorized by the statute. Clapper now reasons that our decision in Bello must also apply to the reverse circumstances — prohibiting a court from imposing a term of probation consecutive to a term of imprisonment.

In 2004, however, the Idaho Supreme Court issued two opinions in cases where defendants had been sentenced to a term of incarceration that appeared to be consecutive to an already-existing term of probation for a prior, unrelated crime. See State v. Cisneros-Gonzalez, 141 Idaho 494, 495-96, 112 P.3d 782, 783-84 (2004); State v. Calley, 140 Idaho 663, 665, 99 P.3d 616, 618 (2004). In both eases, the defendants relied on our deci[341] sion in Bello to argue that their sentences were illegal. The Idaho Supreme Court determined that, by its plain language, I.C. § 18-308 applies only when a defendant is convicted of two or more crimes before sentence has been pronounced upon the defendant for either and a sentence is pronounced when the judge announces it, even if the judge suspends execution of the judgment. Cisneros-Gonzalez, 141 Idaho at 495-96, 112 P.3d at 784; Calley, 140 Idaho at 665, 99 P.3d at 618.

The Supreme Court concluded that I.C. § 18-308 did not apply to the situations in Cisneros-Gonzalez or Calley as in both cases the already-existing terms of probation originated from sentences announced prior to the new terms of incarceration. Cisneros-Gonzalez, 141 Idaho at 496, 112 P.3d at 784; Calley, 140 Idaho at 665, 99 P.3d at 618. In Bello, the defendant’s existing term of probation similarly originated from a sentence announced prior to the new term of incarceration that was to run consecutive to the term of probation. Even though the Idaho Supreme Court did not directly state such, I.C. § 18-308 would also not apply to the situation presented to this Court in Bello under the Supreme Court’s interpretation of that statute. However, because of the factual circumstances in both Cisneros-Gonzalez and Calley, the Idaho Supreme Court declined to make an ultimate ruling as to whether a term of incarceration could be imposed consecutive to a term of probation under other circumstances.

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State v. Clapper, 144 P.3d 43, 143 Idaho 338, 2006 Ida. App. LEXIS 92 (Idaho Ct. App. 2006).

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Related

State v. Reinke
653 P.2d 1183 (Idaho Court of Appeals, 1982)
State v. Lawrence
565 P.2d 989 (Idaho Supreme Court, 1977)
State v. Toohill
650 P.2d 707 (Idaho Court of Appeals, 1982)
State v. McCoy
486 P.2d 247 (Idaho Supreme Court, 1971)
State v. Sanchez
769 P.2d 1148 (Idaho Court of Appeals, 1989)
State v. Cisneros-Gonzalez
112 P.3d 782 (Idaho Supreme Court, 2004)
State v. Bello
19 P.3d 66 (Idaho Court of Appeals, 2001)
State v. Burdett
1 P.3d 299 (Idaho Court of Appeals, 2000)
State v. Calley
99 P.3d 616 (Idaho Supreme Court, 2004)
State v. Murillo
25 P.3d 124 (Idaho Court of Appeals, 2001)
State v. Bowman
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