IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 39914
STATE OF IDAHO, ) 2012 Unpublished Opinion No. 764
)
Plaintiff-Respondent, ) Filed: December 19, 2012
)
v. ) Stephen W. Kenyon, Clerk
)
ALBERT RAY MOORE, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Michael R. McLaughlin, District Judge.
Order denying motion to correct illegal sentence, affirmed.
Albert Ray Moore, pro se appellant, Boise.
Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
General, Boise, for respondent.
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LANSING, Judge
Albert Ray Moore appeals from the district court’s order denying his motion to correct
his sentence for felony driving under the influence, Idaho Code § 18-8005(5), which Moore
contends is illegal. We affirm.
This is Moore’s third appeal in this case. In State v. Moore, 152 Idaho 203, 203-04, 268
P.3d 471, 471-72 (Ct. App. 2011), this Court described the prior proceedings in this case and a
companion DUI case as follows:
In two cases filed in 2006 and 2007, Moore was charged with driving
under the influence (DUI). In each case, the charge was enhanced to a felony
pursuant to Idaho Code § 18-8005(5) on grounds that Moore had twice previously
been convicted of DUI within the preceding ten years, including a conviction in
North Dakota. In both Idaho DUI cases, Moore challenged the State’s reliance on
the North Dakota conviction on the contentions that it did not qualify as a
“substantially conforming foreign criminal conviction” under Idaho Code § 18-
8005(5), and that the conviction was constitutionally defective. After the district
court denied Moore’s motion to dismiss the present case on either basis, Moore
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entered a conditional guilty plea. His plea reserved the right to appeal several of
the district court’s rulings, including the court’s rejection of Moore’s challenge to
the State’s use of the North Dakota conviction. The district court entered a
judgment of conviction imposing a unified sentence of six years, with one year
fixed.
In Moore’s other DUI case, he pleaded not guilty and went to trial. In that
trial, the district court admitted evidence of the North Dakota DUI conviction
over Moore’s objection that it was not a substantially conforming foreign criminal
conviction, that the Wyoming conviction was constitutionally defective, and that
the documentary evidence of that conviction was not properly authenticated.
Moore appealed in both cases.
The two appeals were consolidated and addressed by this Court in State v.
Moore, 148 Idaho 887, 231 P.3d 532 (Ct. App. 2010). We affirmed the district
court’s determination that the North Dakota DUI conviction was “substantially
conforming” and that Moore had not shown that conviction to be constitutionally
defective. These rulings rejected the challenges to use of the North Dakota
conviction that Moore had made before the district court in this case. However,
we also vacated the judgment of conviction in his other DUI case because the
documentary evidence of the North Dakota conviction was not properly
authenticated and therefore had been wrongly admitted at trial. Id. at 892-99, 231
P.3d at 537-44.
In that appeal, Moore contended that he and the district court had “agreed”
at the change of plea hearing in the present case that his guilty plea could be set
aside if he obtained any appellate relief in the other case regarding the North
Dakota conviction. He argued that because this Court had determined that
documentary evidence of the North Dakota conviction was wrongly admitted at
trial in the other case due to lack of proper authentication, the present case should
be remanded for “further proceedings as intended by the district court.” Id. at
903-04, 231 P.3d at 548-49. Because ambiguous statements made at Moore’s
change of plea hearing concerning the scope of the reserved issue left open this
possibility, we remanded this case “for proceedings consistent with our opinion
and the Rule 11 plea agreement.” Id. at 904, 231 P.3d at 549.
On remand, the district court determined that the reservations in Moore’s
conditional guilty plea were not as broad as Moore contended in that he did not
reserve a right to relief from his guilty plea if the Court of Appeals found
evidentiary trial error in the other case. The district court therefore effectively
denied Moore’s motion to withdraw his guilty plea. Perhaps so that Moore would
have a written document from which to appeal, the district court stated its intent
to enter an amended judgment which would “impose the sentence as earlier set
out in the Court’s judgment.” Later in the same hearing, the district court said
that it would “impose the sentence of one year fixed, four years indeterminate for
five years,” which was not an accurate statement of the original sentence. On
June 11, 2010, the amended judgment of conviction was entered, stating a unified
sentence of five years, with one year fixed. Moore did not appeal, and neither did
the State.
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On September 10, 2010, the State filed a motion to amend the judgment of
conviction a second time to “correct an apparent clerical mistake.” The State
pointed out that the original judgment of conviction imposed a unified sentence of
six years, with one year fixed and that because at the hearing on remand the
district court had stated its intent to “impose” that sentence again, its amended
judgment of conviction stating a unified sentence of five years, with one year
fixed, was a mistake. Over Moore’s protestations, the district court agreed that it
had made a clerical mistake correctable under Idaho Criminal Rule 36, and
entered a second amended judgment of conviction expressing a unified sentence
of six years, with one year fixed. Moore appeals.
(footnotes omitted).
On appeal from the second amended judgment, Moore asserted that the district court’s
oral pronouncement of a five-year unified sentence controlled, and that the court lacked
jurisdiction to enter the second amended judgment of conviction. Moore, 152 Idaho at 204-05,
268 P.3d at 472-73. However, this Court affirmed the second amended judgment. We held that
because the district court had not intended to make a substantive change to the sentence
previously in place, I.C.R. 36 authorized the court to correct its error. Id. at 204-06, 268 P.3d at
472-74.
Several months later, Moore filed a pro se I.C.R. 35(a) motion to correct an illegal
sentence in his 2006 DUI case. In this motion, it appears Moore alleged: (1) the district court’s
second amended judgment and its correction of his prior erroneous oral pronouncement
constituted a violation of the Ex Post Facto Clause and was precluded by the doctrine of
collateral estoppel; (2) his conviction was the result of vindictive prosecution and a biased trial
judge; and (3) that his speedy trial rights were violated. Rather than request that his sentence be
“corrected,” Moore asked the district court to vacate his conviction. The district court denied the
motion without comment, and Moore appeals.
On appeal, Moore lists his issues as: “illegal sentence, preclusion, ex post facto, and use
of improperly authenticated judgment by appellate court ruling used by district court.” In the
argument portion of his appellant’s brief, he also appears to argue that he was a victim of
vindictive prosecution and a biased judge.
We conclude that all of Moore’s claims of error are barred by the doctrine of “law of the
case” or the doctrine of res judicata. These doctrines exist to preclude repetitive efforts to
relitigate the same issues that were previously fully resolved by a court. The doctrine of law of
the case provides that when an appellate court, in deciding a case, states in its opinion a principle
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or rule of law necessary to the decision, that pronouncement becomes the law of the case, and
must be adhered to throughout the case’s subsequent progress, both in the trial court and upon
any subsequent appeal. State v. Creech, 132 Idaho 1, 9 n.1, 966 P.2d 1, 9 n.1 (1998). Therefore,
an appellate court’s pronouncement on issues of law set forth in one appeal will not be addressed
again in a successive appeal in the same case. Id. Under the law of the case doctrine, an issue
that could have been, but was not, presented in a previous appeal, is waived and will not be
considered by an appellate court upon a second appeal in the same action. Dopp v. Idaho
Comm’n of Pardons & Parole, 144 Idaho 402, 407 n.3, 162 P.3d 781, 786 n.3 (Ct. App. 2007).
Thus, “If there has been an appeal from the judgment of conviction and [the] same has been
affirmed, then all alleged errors occurring before the judgment and which errors were or could
have been litigated upon the appeal from the original judgment will not be considered by an
appellate court upon a second appeal in the same action.” State v. Searcy, 120 Idaho 882, 883,
820 P.2d 1239, 1240 (Ct. App. 1991) (quoting State v. Van Vlack, 58 Idaho 248, 253, 71 P.2d
1076, 1078 (1937)). Similarly, the doctrine of res judicata precludes relitigation of the issues
that have previously been decided in a final judgment in an action between the same litigants.
State v. Rhoades, 134 Idaho 862, 863, 11 P.3d 481, 482 (2000).
All of the claims of error that Moore now attempts to raise either were addressed or could
have been raised and addressed in one of his two previous appeals in this case. In Moore’s first
appeal, this Court specifically addressed the propriety of use of a North Dakota DUI conviction
to enhance his current offense to a felony. If Moore had possessed a claim of violation of the Ex
Post Facto Clause, it could have been raised in that appeal but was not. In Moore’s second
appeal, we addressed his argument, which he pursues again at length in this appeal, that the
corrected sentence specified in the second amended judgment of conviction was illegal. Any
claims that Moore was the subject of a vindictive prosecution or that the district judge should
have recused himself for bias could have been raised in either of the prior two appeals. Thus, all
of the challenges to his sentence or conviction that Moore presented to the district court through
his motion for correction of an illegal sentence, and additional issues that he attempts to raise on
this appeal, are barred by the doctrines of the law of the case and res judicata. The motion
therefore was properly denied by the district court. The order of the district court denying
Moore’s motion to correct an illegal sentence is affirmed.
Chief Judge GRATTON and Judge GUTIERREZ CONCUR.
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