IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 35937
STATE OF IDAHO, )
) 2012 Opinion No. 22
Plaintiff-Respondent, )
) Filed: April 18, 2012
v. )
) Stephen W. Kenyon, Clerk
JOSHUA LEE McGIBONEY, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Thomas F. Neville, District Judge.
Judgment of conviction and concurrent sentences for robbery; aggravated battery,
enhanced for use of a firearm; and burglary, enhanced for use of a
firearm, affirmed in part, vacated in part, and remanded.
Dennis Benjamin of Nevin, Benjamin, McKay & Bartlett LLP, Boise, for
appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.
________________________________________________
MELANSON, Judge
Joshua L. McGiboney appeals from his judgment of conviction and sentences for
robbery; aggravated battery, enhanced for use of a firearm; and burglary, enhanced for use of a
firearm. McGiboney argues that the district court erred by applying two enhancements for the
use of a firearm during the commission of a felony. McGiboney also asserts that his sentences
are excessive. For the reasons set forth below, we affirm in part, vacate in part, and remand.
I.
FACTS AND PROCEDURE
The state charged McGiboney with robbery, I.C. §§ 18-6501, 18-6502; two counts of
aggravated battery, I.C. §§ 18-903(a), 18-907(a); and burglary, I.C. § 18-1401. The state also
sought sentencing enhancements for the use of a firearm during the robbery, the aggravated
battery, and the burglary pursuant to I.C. § 19-2520. A jury found McGiboney not guilty of one
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of the aggravated battery counts, but returned guilty verdicts on all of the other charges. By
special verdict, the jury also found that McGiboney had used a firearm in committing the
robbery, the aggravated battery, and the burglary. The district court imposed concurrent
sentences of: (1) a unified life term, with a minimum period of confinement of fifteen years, for
robbery; (2) a unified term of thirty years, with a minimum period of confinement of fifteen
years, for aggravated battery; and (3) a unified term of twenty-five years, with a minimum period
of confinement of fifteen years, for burglary. 1 The sentences for aggravated battery and burglary
each received a firearm enhancement pursuant to I.C. § 19-2520. The district court did not
enhance the robbery sentence. In imposing the two enhanced sentences pursuant to I.C. § 19-
2520, the district court did not make a finding as to whether the aggravated battery and burglary
arose out of an indivisible course of conduct under I.C. § 19-2520E. McGiboney appeals.
II.
ANALYSIS
A. Multiple Enhancements
McGiboney argues that the district court erred by applying two enhancements for the use
of a firearm during the commission of a felony. He contends that I.C. § 19–2520E prohibits the
application of two enhancements because the aggravated battery and burglary arose out of an
indivisible course of conduct. 2 McGiboney argues, for the first time on appeal, that the district
court erred when it failed to explicitly find whether the two offenses were indivisible under I.C. §
19-2520E. The state responds that I.C. § 19-2520E provides an affirmative defense that
McGiboney waived by failing to raise it prior to sentencing. This Court exercises free review
over the application and construction of statutes. State v. Reyes, 139 Idaho 502, 505, 80 P.3d
1103, 1106 (Ct. App. 2003).
1
McGiboney was also found guilty of being a felon in possession of a firearm, and the
district court sentenced him to a concurrent determinate term of five years. However,
McGiboney does not challenge this judgment of conviction or sentence on appeal.
2
Idaho Code Section 19-2520E provides:
Notwithstanding the enhanced penalty provisions in sections 19-2520, 19-
2520A, 19-2520B, and 19-2520C, Idaho Code, any person convicted of two (2) or
more substantive crimes provided for in the above code sections, which crimes
arose out of the same indivisible course of conduct, may only be subject to one (1)
enhanced penalty.
2
The Idaho Supreme Court recently considered a claim that the district court did not make
an explicit finding on I.C. § 19-2520E in State v. Peregrina, 151 Idaho 538, 540, 261 P.3d 815,
817 (2011), holding:
Idaho law allows for certain crimes to be punished more severely when they are
committed using a firearm. Idaho Code § 19-2520. Aggravated battery is one of
those crimes. Id. If a jury finds that a defendant used a firearm in the
commission of a battery, his sentence may be increased by a maximum fifteen
years. Id. The legislature used “shall” in the statute, making this a mandatory
increase to the maximum penalty. Id.
However, this statute is not without limitation. Another section of the
code provides that a defendant can only be subject to one increased penalty if the
“crimes arose out of the same indivisible course of conduct . . . .” Idaho Code §
19-2520E. Thus, if two crimes are committed using a firearm, but those crimes
were committed in the same indivisible course of conduct, a defendant can only
be sentenced with one enhancement penalty.
It is undisputed that the question of divisibility is one of fact. State v.
Johns, 112 Idaho 873, 882, 736 P.2d 1327, 1336 (1987). Under Apprendi,
“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490,
120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 454-55 (2000). The question, then,
is whether a finding of divisibility or indivisibility increases the penalty for the
crime beyond the statutory maximum. Unless it does, it does not fall under
Apprendi and the jury is not required to find that fact.
Under I.C. § 19-2520, the State must prove beyond a reasonable doubt to a
jury: (1) the defendant was convicted of one or more of the delineated crimes;
(2) the defendant displayed, used, threatened, or attempted to use a firearm or
other deadly weapon during the commission of these crimes; and (3) if the deadly
weapon at issue is a firearm, it has (a) the capability of propelling projectiles; and
(b) if the firearm was not operable, it could readily have been rendered operable.
Once these facts are found, I.C. § 19-2520 mandates an increase to the maximum
penalty allowed for the enumerated crime by fifteen years. It is important to note
that the jury found these predicate elements beyond a reasonable doubt, subjecting
Peregrina to the mandatory sentence increase.
Section 19-2520E acts as a limitation to this mandatory sentence increase.
Johns, 112 Idaho at 882, 736 P.2d at 1336. Johns stated that § 19-2520E “by its
wording, limits the otherwise mandatory duty of the district court to enhance
‘multiple’ sentences under I.C. § 19-2520.” Id. Because I.C. § 19-2520E
operates to limit the otherwise mandatory nature of the increase, finding
divisibility or indivisibility is not a fact that increases the penalty for the crime.
Rather finding of indivisibility, I.C. § 19-2520E is a mitigating factor that acts to
reduce the penalty for the crime. As such, it is not subject to Apprendi and is a
fact that can be found by the court.
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Here, the jury found that McGiboney committed aggravated battery and burglary while
using a firearm. Therefore, the statutory maximum for each crime after adding the firearm
enhancement, I.C. § 19-2520, would be thirty years for aggravated battery and twenty-five years
for burglary. Idaho Code Section 19-2520E would decrease the statutory maximum penalty as to
one of McGiboney’s convictions if both of his crimes “arose out of the same divisible course of
conduct.” Thus, as was the case in Peregrina, I.C. § 19-2520E would operate to reduce
McGiboney’s maximum sentence for one of his convictions, not increase it. As a result, it was
well within the inherent authority of the district court to make a finding regarding the
indivisibility of McGiboney’s crimes. However, there was no such finding made.
The state argues that Peregrina only controls the issue of whether the crimes arose from
an indivisible course of conduct is a question for the judge or jury. Thus, the state, citing State v.
Perry, 150 Idaho 209, 245 P.3d 961 (2010), argues that McGiboney made no objection to the
lack of a finding on the question of an indivisible course of conduct in the district court and that
this Court may only review his claim of error made for the first time on appeal if he can
demonstrate fundamental error. Perry holds, so far as relevant here, that an appellate court will
only address an error raised for the first time on appeal if the appellant demonstrates fundamental
error, and that to demonstrate such error the appellant must show that the alleged error:
(1) violates one or more of the appellant’s constitutional rights; (2) plainly exists; and (3) was not
harmless. Perry, 150 Idaho at 228, 245 P.3d at 980. Peregrina was decided after Perry by our
Supreme Court. The majority in Peregrina recognized that one of the issues on appeal was the
question of whether the alleged error (not submitting the question of indivisibility to the jury)
was fundamental error. The majority concluded that, because a finding of indivisibility is not
subject to Apprendi v. New Jersey, 530 U.S. 466 (2000), a jury is not required to make the
finding and no such finding had been made. The case was remanded so that the district court
could make a finding on that question. As to the fundamental error issue the majority concluded
that, because a finding of indivisibility is not subject to Apprendi, the Court did not need to
address the fundamental error issue raised on appeal. Peregrina, 151 Idaho at 540, 261 P.3d at
818. Justice Warren Jones dissented, stating that failure to submit the question to a jury was
fundamental error under Perry. Peregrina, 151 Idaho at 546-47, 261 P.3d at 823-24.
We perceive that Peregrina was not remanded based upon a misperception that the issue
had been raised below or a determination that failure of the trial court to address I.C. § 19-2520E
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was fundamental error under Perry. We believe that the Court remanded because no decision
had been made at all and there was, therefore, no decision from which to appeal. We, therefore,
disagree with the state’s assertion that the district court’s failure to address the question of
whether McGiboney’s crimes arose from an indivisible course of conduct is barred from
consideration on appeal under Perry. As was the case in Peregrina, the district court did not
address the I.C. § 19-2520E issue. Therefore, the matter must be remanded to the district court
for a finding on the issue of whether the crimes of aggravated battery and burglary arose from an
indivisible course of conduct pursuant to I.C. § 19-2520E.
B. Sentence Review
McGiboney argues that the district court abused its discretion by imposing excessive
sentences. However, because we vacate and remand this case as to McGiboney’s enhanced
sentences for aggravated battery and burglary, we will only review McGiboney’s claim that his
sentence for robbery is excessive.
An appellate review of a sentence is based on an abuse of discretion standard. State v.
Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal,
the appellant has the burden to show that it is unreasonable and, thus, a clear abuse of discretion.
State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such
an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice,
103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it
appears at the time of sentencing that confinement is necessary “to accomplish the primary
objective of protecting society and to achieve any or all of the related goals of deterrence,
rehabilitation or retribution applicable to a given case.” State v. Toohill, 103 Idaho 565, 568, 650
P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed
an excessively harsh sentence, we conduct an independent review of the record, having regard
for the nature of the offense, the character of the offender, and the protection of the public
interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982).
When reviewing the length of a sentence, we consider the defendant’s entire sentence.
State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007). In order to prevail on a claim that
a sentence represents an abuse of discretion, the defendant must show in light of the criteria, that
the sentence was excessive under any reasonable view of the facts. State v. Charboneau, 124
Idaho 497, 499, 861 P.2d 67, 69 (1993); State v. Small, 107 Idaho 504, 505, 690 P.2d 1336, 1337
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(1984). Where reasonable minds might differ, the discretion vested in the trial court will be
respected, and this court will not supplant the views of the trial court with its own. Small, 107
Idaho at 505, 690 P.2d at 1337. In order to prevail, the appellant must establish that, under any
reasonable view of the facts, the sentence was excessive considering the objectives of criminal
punishment: (1) protection of society; (2) deterrence of the individual and the public generally;
(3) the possibility of rehabilitation; and (4) punishment or retribution for wrongdoing. State v.
Stover, 140 Idaho 927, 933, 104 P.3d 969, 975 (2005).
The district court sentenced McGiboney to a unified life term, with a minimum period of
confinement of fifteen years for robbery. The record demonstrates that McGiboney had
previously been convicted of at least one felony and several misdemeanors. At the time
McGiboney committed the crimes in this case, he was on probation for felony aggravated
assault, misdemeanor battery, and misdemeanor battery on a law enforcement officer. Moreover,
McGiboney had not taken any responsibility for his actions, continuing to take a victim’s stance
and claiming he was innocent of the crimes he was found guilty of. McGiboney has failed to
show, under any view of the facts, that his sentence for robbery was an abuse of discretion.
III.
CONCLUSION
We vacate McGiboney’s enhanced sentences for aggravated battery and burglary and
remand to the district court for a finding of divisibility or indivisibility of McGiboney’s conduct
and resentencing if necessary. We affirm McGiboney’s judgment of conviction for aggravated
battery and burglary, as well as his judgment of conviction and sentence for robbery.
Chief Judge GRATTON and Judge LANSING, CONCUR.
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