IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 36681
STATE OF IDAHO, )
) 2011 Opinion No. 6
Plaintiff-Respondent, )
) Filed: March 1, 2011
v. )
) Stephen W. Kenyon, Clerk
RAYMOND GENE CORBUS, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho,
Elmore County. Hon. Michael E. Wetherell, District Judge.
Judgment of conviction for felony eluding a peace officer and misdemeanor
reckless driving, affirmed.
Molly J. Huskey, State Appellate Public Defender; Eric D. Fredericksen, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
General, Boise, for respondent.
______________________________________________
MELANSON, Judge
Raymond Gene Corbus appeals from his judgment of conviction for felony eluding a
peace officer and misdemeanor reckless driving. Specifically, Corbus contends that the district
court erred in denying his motion to dismiss because the state violated the Double Jeopardy
Clause by subjecting him to multiple criminal prosecutions and multiple convictions and
punishments for the same offense. For the reasons set forth below, we affirm.
I.
FACTS AND PROCEDURE
Police officers observed Corbus’s vehicle travelling approximately 60 mph in a 35 mph
zone. Corbus was given a signal by the police officers to stop his vehicle, but he refused to do
so. The police pursued Corbus’s vehicle at speeds that exceeded 100 mph. During the chase,
Corbus passed other vehicles and turned off his headlights even though it was past sunset.
Eventually, Corbus’s vehicle hit a rock and came to a stop. Corbus was charged with felony
1
eluding a peace officer, I.C. § 49-1404, and misdemeanor reckless driving, I.C. § 49-1401. At
his arraignment, Corbus entered a guilty plea to reckless driving, but was not immediately
sentenced. Corbus subsequently filed a motion to dismiss the charge of eluding a police officer,
contending that reckless driving was a lesser included offense of eluding a police officer and
that, therefore, continuing his prosecution for eluding a police officer would violate the Double
Jeopardy Clause of the Fifth Amendment to the United States Constitution and Article 1,
Section 13 of the Idaho Constitution. The district court denied Corbus’s motion to dismiss.
Corbus then pled guilty to eluding a police officer but reserved the right to appeal the district
court’s denial of his motion to dismiss.
The district court sentenced Corbus to a unified term of five years, with a minimum
period of confinement of one and one-half years, for eluding a police officer and a concurrent
term of 120 days for reckless driving. The sentences were suspended, and Corbus was placed on
probation. Corbus appeals.
II.
ANALYSIS
Corbus argues that he was subjected to multiple prosecutions and multiple convictions
and punishments in violation of the Double Jeopardy Clause of the Fifth Amendment to the
United States Constitution and Article 1, Section 13 of the Idaho Constitution. Corbus asserts
that, because he first pled guilty to reckless driving, he could not subsequently be prosecuted or
convicted and punished for eluding a police officer because the two crimes constitute one offense
for double jeopardy purposes. The Double Jeopardy Clause of the United States and Idaho
Constitutions provide that no person shall be twice put in jeopardy for the same offense. The
Double Jeopardy Clause of the Idaho and United States Constitutions affords a defendant three
basic protections. It protects against a second prosecution for the same offense after acquittal, a
second prosecution for the same offense after conviction, and multiple criminal punishments for
the same offense. Schiro v. Farley, 510 U.S. 222, 229 (1994); State v. McKeeth, 136 Idaho 619,
624, 38 P.3d 1275, 1280 (Ct. App. 2001). Whether a defendant’s prosecution complies with the
constitutional protection against being placed twice in jeopardy is a question of law over which
we exercise free review. State v. Santana, 135 Idaho 58, 63, 14 P.3d 378, 383 (Ct. App. 2000).
2
A. Multiple Prosecutions
Corbus argues that, because reckless driving is a lesser included offense of eluding a
police officer and because he pled guilty to reckless driving before he pled guilty to eluding, he
was subjected to multiple prosecutions for the same offense in violation of the Double Jeopardy
Clause. The state, however, is not prohibited by the Double Jeopardy Clause from charging a
defendant with greater and lesser included offenses and prosecuting those offenses together in a
single prosecution. Ohio v. Johnson, 467 U.S. 493, 500 (1984). A determination of guilt on one
count of a multi-count indictment does not immediately raise a double jeopardy bar to continued
prosecution on any remaining greater or lesser count. Id. at 501. Here, Corbus was charged, in
the same information, with both reckless driving and eluding a police officer and was prosecuted
simultaneously for both offenses. Acceptance of Corbus’s guilty plea to reckless driving did not
preclude the state from continuing its prosecution on the greater offense of eluding a police
officer. Therefore, the district court did not err in denying Corbus’s motion to dismiss made on
the ground that he could not be subjected to multiple prosecutions in violation of the Double
Jeopardy Clause of the United States and Idaho Constitutions.
B. Multiple Convictions and Punishments
Corbus also argues that he was subjected to multiple convictions and punishments for the
same offense in violation of the Double Jeopardy Clause because he was convicted and
sentenced for both reckless driving and eluding a police officer. Corbus did not, however, raise
the issue of multiple convictions and punishments in the court below--only a claim of multiple
prosecutions. Idaho decisional law has long-allowed appellate courts to consider a claim of error
to which no objection was made below if the issue presented rises to the level of fundamental
error. See State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007); State v. Haggard, 94
Idaho 249, 251, 486 P.2d 260, 262 (1971). Recently, in State v. Perry, ___ Idaho ___, 245 P.3d
961 (2010), the Idaho Supreme Court restated the definitions it had previously utilized to
describe what may constitute fundamental error. The Perry Court held that an appellate court
should reverse for an unobjected-to error when the defendant persuades the court that the alleged
error: (1) violates one or more of the defendant’s unwaived constitutional rights; (2) the error is
clear or obvious without the need for reference to any additional information not contained in the
appellate record; and (3) the error affected the outcome of the trial proceedings. Id. at ___, 245
3
P.3d at 978. In applying Perry, we initially note that Corbus brings his double jeopardy claim
under both the United States and Idaho Constitutions.
1. Claim under the United States Constitution
Under the first prong of Perry, we must determine whether Corbus has shown that his
unwaived constitutional right against multiple convictions and punishments under the United
States Constitution has been violated. The United States Supreme Court applies a statutory
theory to determine whether a defendant’s prosecution or conviction and punishment for two
offenses violates the Double Jeopardy Clause of the United States Constitution. See Blockburger
v. United States, 284 U.S. 299, 304 (1932). The Blockburger test provides that, where the same
act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied
to determine whether there have been two offenses or only one for double jeopardy purposes is
whether each statutory provision requires proof of an additional fact which the other does not.
Id. at 304. In consecutive prosecutions, if two offenses have been determined to be one offense
under the Blockburger test, then convicting and punishing a defendant for both offenses is a
violation of the Double Jeopardy Clause. Brown v. Ohio, 432 U.S. 161, 168-69 (1977).
Applying the Blockburger test in this case, we conclude that there has been no violation
of Corbus’s double jeopardy rights under the United States Constitution. Reckless driving and
felony eluding constitute two separate offenses because each crime requires proof of at least one
element that the other does not. Reckless driving requires, among other elements, that a person
drive “upon a highway, or upon public or private property open to public use.” I.C. § 49-
1401(1). 1 Felony eluding a police officer does not contain this element. See I.C. § 49-1404. 2
1
Idaho Code Section 49-1401(1) provides:
Any person who drives . . . any vehicle upon a highway, or upon public or
private property open to public use, carelessly and heedlessly or without due
caution and circumspection, and at a speed or in a manner as to endanger or be
likely to endanger any person or property, or who passes when there is a line in
his lane indicating a sight distance restriction, shall be guilty of reckless
driving . . .
2
Idaho Code Section 49-1404 provides, in pertinent part:
(1) Any driver of a motor vehicle who willfully flees or attempts to
elude a pursuing police vehicle when given a visual or audible signal to bring the
vehicle to a stop is guilty of a misdemeanor. . . .
4
Felony eluding a police officer requires, among other elements, that a person “willfully flees or
attempts to elude a pursuing police vehicle when given a visual or audible signal to bring the
vehicle to a stop.” I.C. § 49-1404(1). Reckless driving does not contain this element. See I.C.
§ 49-1401(1). Thus, the crimes of reckless driving and felony eluding a police officer constitute
two separate offenses under the Blockburger test because each contains an element that the other
does not. Corbus has not shown that his right under the Double Jeopardy Clause of the United
States Constitution against being subjected to multiple convictions and punishments has been
violated because there is no prohibition against conviction and punishment for two separate
offenses. Therefore, Corbus has failed, under the first prong of the Perry test, to show
fundamental error with regard to his double jeopardy claim which arises under the United States
Constitution. Consequently, we will not further address this argument on appeal.
2. Claim under the Idaho Constitution
We must also determine whether Corbus has shown fundamental error with regard to his
double jeopardy claim which arises under the Idaho Constitution. We conclude that Corbus’s
argument that he was subjected to multiple convictions and punishments under the Idaho
Constitution does not demonstrate fundamental error because the second prong, requiring that
the error “plainly exists,” was not met.
We consult federal case law in elucidating the second prong of the Perry test because our
Supreme Court drew heavily upon the federal plain error doctrine in arriving at the Perry
definition of fundamental error. According to the United States Supreme Court’s decision in
United States v. Olano, 507 U.S. 725 (1993), “plain” is synonymous with “‘clear’ or,
equivalently, ‘obvious.’” Id. at 734. Thus, the inquiry is whether “the error is clear under
(2) An operator who violates the provisions of subsection (1) and
while so doing:
(a) Travels in excess of thirty (30) miles per hour above the
posted speed limit;
(b) Causes damage to the property of another or bodily injury
to another;
(c) Drives his vehicle in a manner as to endanger or likely to
endanger the property of another; or
(d) Leaves the state;
is guilty of a felony.
5
current law,” id., or, as articulated by the Ninth Circuit Court of Appeals, whether the “available
authorities provide a clear answer to the question.” United States v. Thompson, 82 F.3d 849, 855
(9th Cir. 1996). In Thompson, the court held that an issue raised for the first time on appeal was
not “plain error” because there was at least some room for doubt about the outcome of this issue
since there was no controlling United States Supreme Court precedent and the other circuits were
split. Id. at 855-56. Accord United States v. Salinas, 480 F.3d 750, 759 (5th Cir. 2007) (holding
there was not plain error where the circuit’s law was unsettled on the issue and other circuits had
reached divergent conclusions); United States v. Humphrey, 164 F.3d 585, 588 (11th Cir. 1999)
(holding where no precedent clearly resolved the defendant’s claim of error, the error was not
“obvious” and thus could not be reviewed under the plain error doctrine); United States v. Alli-
Balogun, 72 F.3d 9, 12 (2d Cir. 1995) (holding that a claimed error could not be plain error when
the Supreme Court and the Second Circuit had not spoken on the subject and the authority in the
other circuits was split). We therefore conclude that the second element of the Perry test for
fundamental error, requiring that the error “plainly exists,” necessitates that the appellant show
that existing authorities have unequivocally resolved the issue in the appellant’s favor.
a. Idaho Supreme Court precedent
The Idaho Supreme Court has analyzed potential violations of the Double Jeopardy
Clause of the Idaho Constitution using a different set of criteria than violations of the Double
Jeopardy Clause of the United States Constitution. See State v. Thompson, 101 Idaho 430, 434-
35, 614 P.2d 970, 974-75 (1980). In Thompson, the defendant was charged, in a single
prosecution, with assault with a deadly weapon and attempted robbery. Thompson pled guilty to
both charges. The district court dismissed the assault with a deadly weapon charge, finding that
punishing Thompson cumulatively for both charges would be in violation of the Double
Jeopardy Clause because attempted robbery was a lesser included offense of assault with a
deadly weapon. Thompson appealed arguing that his conviction and punishment for both
charges violated the Double Jeopardy Clause of both the United States and Idaho Constitutions.
On appeal, the Thompson Court applied a pleading theory of a lesser included offense to
determine whether the district court erred in finding a violation of the Double Jeopardy Clause
had occurred. Id. at 433-35, 614 P.2d 973-75. Under the pleading theory, as laid out in
Thompson, a court must consider whether the terms of the charging document allege that both
offenses arose from the same factual circumstances such that one offense was the means by
6
which the other was committed. See Thompson, 101 Idaho at 435, 614 P.3d at 975; State v.
McCormick, 100 Idaho 111, 115, 594 P.2d 149, 153 (1979); State v. Hall, 88 Idaho 117, 123, 397
P.2d 261, 263-64 (1964); State v. Anderson, 82 Idaho 293, 301, 352 P.2d 972, 976 (1960).
Because the pleading theory relies on an examination of the charging information, it generally
provides a broader definition of greater and lesser included offenses than a statutory theory
approach as in Blockburger. Thompson, 101 Idaho at 433-34, 614 P.2d at 973-74.
The Idaho Supreme Court next addressed a claim of double jeopardy in Sivak v. State,
112 Idaho 197, 731 P.2d 192 (1986). In Sivak, the defendant was found guilty by a jury of both
robbery and felony murder. Sivak appealed, arguing that his conviction for both offenses
violated the Double Jeopardy Clause of the United States Constitution because the robbery was
the felony that formed the basis for the felony murder conviction. 3 Id. at 211, 731 P.2d at 206.
The Idaho Supreme Court said it would follow Thompson and apply the pleading theory to
determine whether there was a violation of the Double Jeopardy Clause. Sivak, 112 Idaho at
211-12, 731 P.2d at 206-07. The Sivak Court, however, articulated a different pleading theory
test than the one used in Thompson. Sivak, 112 Idaho at 211, 731 P.2d at 206; see also
McCormick, 100 Idaho at 114, 594 P.2d at 152. Instead of focusing on the facts alleged in the
charging documents, the Sivak Court focused on whether the elements of robbery were necessary
to sustain a conviction for felony murder. Sivak, 112 Idaho at 211, 731 P.2d at 206. The Court
held that, under the facts of the case, robbery was a lesser included offense of felony murder
because “all the elements required to sustain a conviction of robbery were also within the
elements needed to sustain a conviction of felony murder.” Id. The Court noted that this
3
It is somewhat unclear from the Sivak opinion whether Sivak was bringing his double
jeopardy claim under the Idaho and United States Constitutions or only under the United States
Constitution. At the beginning of the opinion the Court states: “Sivak now appeals and raises
the following arguments based on both the United States and the Idaho Constitutions. We will
address additional facts as they arise in the context of each issue below.” Sivak, 112 Idaho at
199, 731 P.2d at 194. Under subsection V, which deals directly with the double jeopardy
argument, however, the Court states that Sivak further alleges a violation of his right under the
Fifth and Fourteenth Amendments to the United States Constitution not to be twice put in
jeopardy for the same offense. Sivak, 112 Idaho at 211, 731 P.2d at 206. By analyzing only the
United States Constitution claim, it was unclear whether both constitutional claims were at issue
or whether the Court was implying that the Idaho constitutional claim involved the same analysis
as the United States constitutional claim.
7
elements theory is “in essence” the same as the Blockburger test. Sivak, 112 Idaho at 211 n.8,
731 P.2d at 206 n.8. The Court also noted that, under the facts of the case, it would reach the
same conclusion whether it applied the Blockburger test or the broader pleading theory. Id.
The Idaho Supreme Court next addressed a claim of double jeopardy in State v. Pizzuto,
119 Idaho 742, 810 P.2d 680 (1991), overruled on other grounds by State v. Card, 121 Idaho
425, 825 P.2d 1081 (1991). As in Sivak, Pizzuto was found guilty by a jury of both robbery and
felony murder. Pizzuto, 119 Idaho at 756, 810 P.2d at 694. Pizzuto argued that his conviction
and punishment for both offenses violated the Double Jeopardy Clause of both the Idaho and
United States Constitutions because robbery was a lesser included offense of felony murder. Id.
at 757, 810 P.2d at 695. Relying extensively on Sivak, the Court held that Pizzuto’s conviction
and punishment for both felony murder and robbery was in violation of the Double Jeopardy
Clause of both constitutions because “all the elements required to sustain a conviction of robbery
were also within the elements needed to sustain a conviction of felony murder.” Pizzuto, 119
Idaho at 758, 810 P.2d at 696. The Court also cited to Whalen v. United States, 445 U.S. 684
(1980) in support of this proposition, implying it would reach the same conclusion whether it
applied the pleading theory or the Blockburger test. Pizzuto, 119 Idaho at 758, 810 P.2d at 696.
The Idaho Supreme Court most recently addressed a double jeopardy claim in State v.
Stewart, 149 Idaho 383, 234 P.3d 707 (2010). Having previously been convicted of
misdemeanor stalking, Stewart was charged with felony stalking. In a motion to dismiss,
Stewart contended that the prosecution intended to use the incidents on which the misdemeanor
conviction was based as the course of conduct needed to establish the felony charge. Id. at 389,
234 P.3d at 713. The district court denied Stewart’s motion to dismiss. Stewart appealed,
arguing that his right against double jeopardy under both the Idaho and United States
Constitutions had been violated. 4 Id. The Idaho Supreme Court analyzed Stewart’s double
jeopardy claims using the Blockburger test. Id. After applying the Blockburger test, the Court
went on to cite to the same portion of McCormick as was used by the Court in Sivak and Pizzuto.
4
The opinion does not expressly state that Stewart brought his double jeopardy claim
under both the Idaho and United States Constitutions. The Court noted, however, that the
“double jeopardy clauses in the Idaho and federal constitutions prohibit putting one in jeopardy
twice for the same crime.” Stewart, 149 Idaho at 389, 234 P.3d at 713.
8
Stewart, 149 Idaho at 389 n.4, 234 P.3d at 713 n.4. Citing to both Blockburger and McCormick
implies that the Stewart Court would reach the same conclusion under either test.
b. Blockburger and the pleading theory
Our review of Idaho Supreme Court precedent demonstrates that the Court has not been
entirely consistent in its application of either the Blockburger test or the pleading theory in
double jeopardy cases. In Thompson, the defendant brought his claim under both the United
States and Idaho Constitutions. The Court held that the pleading theory applied to Thompson’s
claims. In coming to this conclusion, the Thompson Court acknowledged that the United States
Supreme Court applies the Blockburger test but it noted, in dicta, that Blockburger sets forth
only the minimum standards required to avoid a violation of the Double Jeopardy Clause.
Thompson, 101 Idaho at 435 n.5, 614 P.2d at 975 n.5. The Court also noted that it did not apply
the Blockburger test because it was not argued to the court by either of the parties. Thompson,
101 Idaho at 435 n.5, 614 P.2d at 975 n.5. Because the Idaho Supreme Court may not overrule
Blockburger, we must assume the Thompson Court meant for the pleading theory test to apply
only to double jeopardy claims arising under the Idaho Constitution. Therefore, we conclude
that, when a defendant brings a double jeopardy claim under both the Idaho and United States
Constitutions, Thompson would require that we apply the pleading theory 5 to determine whether
there has been a violation of the Double Jeopardy Clause under the Idaho Constitution and the
Blockburger test to determine whether there has been a violation under the United States
Constitution.
This conclusion is called into question, however, by subsequent Idaho Supreme Court
precedent. The Court has generally applied the Blockburger test in cases arising under only the
Double Jeopardy Clause of the United States Constitution. See State v. Osweiler, 140 Idaho 824,
103 P.3d 437 (2004); State v. Lewis, 123 Idaho 336, 848 P.2d 394 (1993). In Thompson, the
Court applied a broader pleading theory to an Idaho constitutional claim. However, Stewart,
Pizzuto, and Sivak seem to apply an elements theory more akin to Blockburger than Thompson in
Idaho constitutional claims. Idaho Supreme Court precedent does not, therefore, unequivocally
resolve the issue of whether this Court should apply the Blockburger test, the pleading theory , or
5
As noted above, it is unclear whether the Idaho Supreme Court has moved away from the
pleading theory of Thompson to an “elements theory” which, when applied in this case, results in
the same conclusion as the Blockburger test.
9
the elements theory to Corbus’s double jeopardy claims under the Idaho Constitution. Therefore
our review of Idaho Supreme Court precedent does not unequivocally resolve the issue in
Corbus’s favor.
If we applied the pleading theory as described Thompson, we would conclude that Corbus
was subjected to double jeopardy. In applying Thompson we must examine the information with
which Corbus was charged to determine whether reckless driving is a lesser included offense of
eluding a police officer. The information charging Corbus with eluding a police officer stated:
[Corbus] willfully attempted to elude a pursuing police vehicle after being given a
visual signal to stop, and in so doing . . . traveled . . . in excess of 100 m.p.h.
[or] . . . drove his vehicle in a manner as to endanger or be likely to endanger the
property of another or the person of another, to-wit: the Defendant drove in a
reckless manner including speeding in excess of 100 m.p.h., passing other
vehicles, and turning off his headlights after sunset . . . .
The information charging Corbus with reckless driving stated:
[Corbus drove] carelessly and heedlessly; without due caution and circumspection
and/or at a speed or in a manner to be likely to endanger persons or property; by
driving in excess of 100 m.p.h. with his headlights turned off after 9:18 p.m., with
other vehicles on the roadway . . . .
The language of the information reveals that reckless driving was charged as the means
of committing the crime of eluding a police officer. The eluding charge states that Corbus
“drove in a reckless manner” in his attempt to elude police. The language used in both counts
lays out the same factual circumstances as the basis for each offense. The means by which
Corbus eluded the police--driving in excess of 100 mph, passing other vehicles, turning off his
headlights after sunset, and endangering the person or property of another--are the same means
by which Corbus drove recklessly. The state also conceded in its briefing that reckless driving is
a lesser included offense of eluding a police officer, and this Court has previously recognized
that reckless driving can be a lesser included offense of eluding a police officer. See State v.
Miller, 131 Idaho 288, 294, 955 P.2d 603, 609 (Ct. App. 1997). Under the Thompson
formulation and the information with which Corbus was charged, therefore, reckless driving is a
lesser included offense of eluding a police officer and Corbus’s conviction and punishment for
both offenses was in violation of the Double Jeopardy Clause of the Idaho Constitution.
If we applied the pleading theory as described Stewart, Pizzuto, and Sivak, we would
conclude that Corbus was not subjected to double jeopardy because not all the elements of
10
reckless driving are contained within the elements of eluding. Reckless driving requires that a
person drive “heedlessly and recklessly,” and “on a highway, or upon public or private property
open to public use.” I.C. § 49-1401(1). Felony eluding a police officer, however, does not
contain these elements. See I.C. § 49-1404. Under Stewart, Pizzuto, and Sivak, therefore,
reckless driving is not a lesser included offense of eluding a police officer and Corbus’s
conviction and punishment for both offenses was not in violation of the Double Jeopardy Clause
of the Idaho Constitution.
Our review of the Idaho Supreme Court cases including Stewart, Pizzuto, Sivak, and
Thompson demonstrates that the available authority does not provide a clear answer to the
question of which analytical theory should be applied in double jeopardy cases which allege a
violation of the Double Jeopardy Clause of the Idaho Constitution. It is not clear from existing
precedent whether the Blockburger test, the pleading theory used in Thompson, or the pleading
theory used in Stewart, Pizzuto, and Sivak should properly be applied in this case. In addition,
application of each of these theories would result in contradictory conclusions. Therefore,
Corbus has failed, under the second prong of the Perry test, to show fundamental error with
regard to his double jeopardy claim which arises under the Idaho Constitution. Consequently,
we will not further consider this argument on appeal.
III.
CONCLUSION
The district court did not err in denying Corbus’s motion to dismiss because Corbus was
not subjected to multiple prosecutions in violation of the Double Jeopardy Clause. In addition,
Corbus failed to demonstrate that his unobjected-to error concerning multiple convictions and
punishments under the United States and Idaho Constitutions rose to the level of fundamental
error. Therefore, Corbus’s judgment of conviction for felony eluding a peace officer and
misdemeanor reckless driving are affirmed.
Chief Judge GRATTON and Judge LANSING, CONCUR.
11