State v. Hernandez

694 P.2d 1295, 107 Idaho 947, 1985 Ida. LEXIS 416

• Court: Idaho Supreme Court
• Decided: February 5, 1985
• Docket: 14190
• Status: Published

Opinions

PER CURIAM.

The defendant, Ray Hernandez, in a two-count information was charged, by Count I, that he “did willfully, knowingly, wrongfully, unlawfully, intentionally and feloniously force [a female, mention of whose name would serve no purpose] to commit fellatio,” and by Count II, that he “did willfully, knowingly, wrongfully, unlawfully, intentionally and feloniously assault [that female] with the intent to commit the infamous crime against nature by threatening her with bodily harm and molesting her.” Hernandez moved to dismiss the information on the basis that the statute under which he was charged, I.C. § 18-6605,¹ was unconstitutional. That motion was denied by Judge Cogswell on the basis of State v. Carringer, 95 Idaho 929, 523 P.2d 532 (1974), in which it was held that I.C. § 18-6605 was not unconstitutionally vague as applied in that case where there was evidence of a forcible commission of a crime against nature, the details of which are readily available in the reported opinion.

The original information was superseded by an amended information which alleged merely a violation of the statute without the involvement of either force or threats charging simply a consensual act between the defendant and the female. The female has not been charged with such a violation. No constitutional challenge was made to the amended information, which superseded and rendered functus officio the first information. Simultaneously with the filing of the amended information, a “NEGOTIATED PLEA AGREEMENT” was filed, signed by counsel for both parties, where-under the defendant agreed that he would plead guilty to the amended information and the State agreed it would recommend to the court that the defendant be placed on unsupervised probation for a period of two years and also recommend that the defendant be given a withheld judgment. In addition, and giving rise to this appeal, the prosecutor stipulated that the defendant in entering his plea did not waive his right to appeal and on the appeal challenge the constitutionality of the statute, I.C. § 18-6605.

On the same day that the amended information and negotiated plea agreement were filed, respective counsel and the defendant appeared in court and the defendant pleaded guilty. It does not appear that the court was asked to approve the negotiated plea agreement or that the court did so. A presentence investigation and report was ordered. At the appointed time for sentencing, with everyone present, defense counsel questioned alleged discrepancies in the presentence report and the hearing was continued for four weeks. The defendant failed to appear at the appointed time and he was subsequently apprehended on a bench warrant. Thereafter, he was sentenced to an indeterminate term not to exceed three years in the penitentiary. This appeal followed.

The sole question presented on appeal is the alleged unconstitutionality of I.C. § 18-6605. This question was not presented to the district court as a challenge to the amended information, and, believing that we are not bound by the prosecutor’s stipulation anymore than the district judge was bound by the negotiated plea agreement, we accordingly decline to address a question which was not urged below, noting that the defendant is not prejudiced from raising the alleged unconstitutionality of the statute in a post-conviction relief proceeding.²

Judgment affirmed.

SHEPARD and BAKES, JJ., concur in the result.

1 . I.C. § 18-6605 provides: "Every person who is guilty of the infamous crime against nature, committed with mankind or with any animal, is punishable by imprisonment in the state prison not less than five years.”

2 . At oral argument counsel from the Attorney General's office assured the Court that the State "would not bring a prosecution against married individuals under this particular statute [I.C. § 18-6605], because under the holdings of Gris-wold [v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) ] and Eisenstadt [v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) ] it would not be proper."