IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 35441
STATE OF IDAHO, )
) 2010 Opinion No. 1
Plaintiff-Respondent, )
) Filed: January 7, 2010
v. )
) Stephen W. Kenyon, Clerk
ROBERT E. PETERSON, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Sixth Judicial District, State of Idaho,
Bannock County. Hon. Peter D. McDermott, Hon. Don L. Harding, District
Judges.
Order vacating sentences and setting case for resentencing, reversed; order
imposing new sentences, vacated, and original sentences reinstated; order denying
motion to withdraw guilty plea, affirmed.
Dennis A. Benjamin of Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for
appellant.
Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
Attorney General, Boise, for respondent.
________________________________________________
LANSING, Chief Judge
Robert E. Peterson pleaded guilty to four counts of possession of sexually exploitative
material for other than a commercial purpose. After his initial sentences were affirmed on
appeal, his subsequent Idaho Criminal Rule 35 motion to correct “illegal” sentences was granted
and a new judge was assigned to resentence Peterson. Peterson appeals from the sentences
imposed at his second sentencing, from the denial of his motion to disqualify the new judge, and
from the denial of his I.C.R. 33(c) motion to withdraw his guilty plea.
I.
BACKGROUND
Peterson was charged with ten counts of possession of sexually exploitative material.
Pursuant to a plea agreement, he pled guilty to four counts and the remaining charges were
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dismissed. On December 4, 2006, the district court imposed unified five-year sentences with
three years determinate on each count. The court ordered that the sentences for counts two and
five would be concurrent and that the sentences for counts six and nine would also be concurrent
with each other but consecutive to those for counts two and five. This yielded a cumulative
sentence of ten years with six years determinate. Peterson appealed, and this Court affirmed his
judgment of conviction and sentences. This Court‟s remittitur issued on February 12, 2008.
On November 19, 2007, Peterson filed a pro se Idaho Criminal Rule 35 “Motion for
Correction or Reduction of Sentence” in which he alleged ineffective assistance of counsel. In
his motion Peterson asserted that his defense attorney had not advised him of his Fifth
Amendment right not to participate in a psychosexual evaluation conducted for purposes of
sentencing. This, he argued, constituted ineffective assistance of counsel, citing Estrada v. State,
143 Idaho 558, 149 P.3d 833 (2006). In Estrada, the Idaho Supreme Court held that the
defendant was denied effective assistance of counsel because his attorney had not informed him
of his right to assert his privilege against self-incrimination when the court ordered a
psychosexual evaluation. Id. at 564, 149 P.3d at 839.
The district court granted Peterson‟s motion and set the matter for a new sentencing
hearing in front of another district judge. Recognizing that there was an issue concerning the
timeliness of Peterson‟s motion under I.C.R. 35, in its initial order the district court said that it
was treating the motion as a petition for post-conviction relief. Subsequently, upon Peterson‟s
request, the district court modified its order to treat Peterson‟s motion as an I.C.R. 35 motion to
correct an illegal sentence.
Peterson filed a motion to disqualify the new judge, which was denied. He also filed a
motion to withdraw his guilty plea on April 14, 2008. At a subsequent hearing, the new judge
denied the motion to withdraw the guilty plea and sentenced Peterson to a five-year term with
two years determinate on each of the four counts, all to be served consecutively. This resulted in
a cumulative sentence of twenty years with eight years determinate, which was significantly
longer than Peterson‟s original sentences. Peterson then filed an I.C.R. 35 motion to reduce the
new sentences, which the district court denied.
Peterson appeals. He claims error in the original district judge‟s disqualification of
himself from the resentencing proceedings, the denial of Peterson‟s motion to disqualify the
second district judge, and the order denying his motion for withdrawal of his guilty plea.
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Peterson also asserts that his right to due process under the state and federal constitutions was
violated by the second district judge‟s imposition of sentences that were more severe than those
that Peterson originally received.
II.
DISCUSSION
A. Jurisdiction to Grant Peterson’s Motion to Correct an Illegal Sentence
Because Peterson‟s arguments concerning his motion to disqualify the second judge and
challenging his new sentences are necessarily dependent upon the original judge having
jurisdiction to grant Peterson‟s Rule 35 motion in the first instance, we will first take up an
argument by the State that the district court had no jurisdiction to grant Peterson‟s Rule 35
motion because the motion was untimely. The State did not appeal from the order granting the
Rule 35 motion, nor cross-appeal in the present proceeding. Nevertheless, it may now tardily
raise the jurisdiction issue because a challenge to a court‟s subject matter jurisdiction may be
raised at any time during the course of the proceedings, even for the first time on appeal, and
may not be waived by the parties. State v. Armstrong, 146 Idaho 372, 374, 195 P.3d 731, 733
(Ct. App. 2008); State v. McCarthy, 133 Idaho 119, 122, 982 P.2d 954, 957 (Ct. App. 1999).
The issue may even be raised sua sponte by a trial or appellate court. State v. Kavajecz, 139
Idaho 482, 483, 80 P.3d 1083, 1084 (2003); Armstrong, 146 Idaho at 374, 195 P.3d at 733. An
order entered without subject matter jurisdiction is void. Troupis v. Summer, 148 Idaho 77, 79,
218 P.3d 1138, 1140 (2009); Andre v. Morrow, 106 Idaho 455, 459, 680 P.2d 1355, 1359 (1984);
Sierra Life Ins. Co. v. Granata, 99 Idaho 624, 626-27, 586 P.2d 1068, 1070-71 (1978);
Armstrong, 146 Idaho at 374, 378, 195 P.3d at 733, 737. Whether a court has jurisdiction is a
question of law, over which we exercise free review. Kavajecz, 139 Idaho at 483, 80 P.3d at
1084; State v. Savage, 145 Idaho 756, 758, 185 P.3d 268, 270 (Ct. App. 2008).
At the time in question, Idaho Criminal Rule 35 authorized the trial court to correct or
modify a sentence within specified time limits:
The court may correct an illegal sentence at any time and may correct a sentence
that has been imposed in an illegal manner within the time provided herein for the
reduction of sentence. The court may reduce a sentence within 120 days after the
filing of a judgment of conviction or within 120 days after the court releases
retained jurisdiction.
Under this rule, a motion to correct an illegal sentence could be entertained at any time, but a
motion to modify a sentence on any other grounds had to be filed within 120 days from the date
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of judgment or the date the court released retained jurisdiction. The 120-day limit is
jurisdictional, so if Peterson‟s motion was subject to this time limit, the district court lacked
jurisdiction to grant relief. Brandt v. State, 118 Idaho 350, 352, 796 P.2d 1023, 1025 (1990);
State v. Parvin, 137 Idaho 783, 785-86, 53 P.3d 834, 836-37 (Ct. App. 2002); State v. Sutton,
113 Idaho 832, 833, 748 P.2d 416, 417 (Ct. App. 1987).
The State contends that the alleged ineffective assistance in Peterson‟s original
sentencing proceedings did not make his sentence “illegal,” and therefore his motion was
untimely. Even assuming his claim of ineffective assistance may be presented under Rule 35,
the State argues, the motion had to be brought within 120 days from the date of Peterson‟s
judgment of conviction.
A sentence is “illegal” within the meaning of Rule 35 only if it is in excess of statutory
limits or otherwise contrary to applicable law. State v. Alsanea, 138 Idaho 733, 745, 69 P.3d
153, 165 (Ct. App. 2003); State v. Lee, 116 Idaho 515, 516, 777 P.2d 737, 738 (Ct. App. 1989).
Recently, the Idaho Supreme Court has interpreted the term narrowly as “a sentence that is
illegal on the face of the record, i.e., does not involve significant questions of fact or require an
evidentiary hearing.” State v. Clements, 148 Idaho 82, 86, 218 P.3d 1143, 1147 (2009). The
Court further stated that “Rule 35 is not a vehicle designed to reexamine the facts underlying the
case to determine whether a sentence is illegal . . . .” Id. Peterson does not contend that his
sentences exceed any statutory limit, and the claimed illegality is not discernable from the face of
the judgment or otherwise on the face of the record in the criminal case. Rather, his claim of
illegality is based upon his assertion of a fact not shown by the record--that his attorney did not
advise him of his Fifth Amendment right to decline participation in the psychosexual evaluation.
Hence, Peterson‟s motion was, at best, a claim that his sentence was imposed in an illegal
manner, and it was thus subject to the 120-day time limit under Rule 35.1
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We need not address whether a claim of ineffective assistance of counsel in sentencing
proceedings can ever be presented through a Rule 35 motion. We note, however, that such a
claim clearly could appropriately have been brought as an action for post-conviction relief
pursuant to I.C. § 19-4901, et seq. Unfortunately, the district court‟s determination that it
possessed authority to consider the claim under Rule 35 may have dissuaded Peterson from filing
an action for post-conviction relief.
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Peterson contends that the State‟s jurisdictional argument is without merit “because it
confuses the question of jurisdiction, i.e., whether the court has the power to decide the motion,
with the question of whether the motion was meritorious.” Peterson reasons as follows:
Putting aside the question of whether the district court was correct in granting the
motion, it is beyond peradventure that it had the authority to decide the motion.
„The court may correct an illegal sentence at any time[.]‟ I.C.R. 35. Therefore,
the filing of a motion for the correction of an illegal sentence in a criminal case
confers jurisdiction to decide the motion upon the district court.
From this Peterson argues that the State cannot assert error in the district court‟s order granting
the Rule 35 motion because the State did not file an appeal or cross-appeal from that decision.
Peterson‟s argument is without merit. By his line of reasoning, parties could confer
subject matter jurisdiction on a court by the label placed on their motions. By titling a motion as
one to correct an illegal sentence, no matter how far removed the substance of the motion might
actually be from that label, the party would confer upon the court jurisdiction to grant the
requested relief! It is fair to say, of course, that a court has jurisdiction to determine whether it
possesses jurisdiction. United States v. Ruiz, 536 U.S. 622, 628 (2002); Cedano-Viera v.
Ashcroft, 324 F.3d 1062, 1064 (9th Cir. 2003). That does not mean, however, that the court then
must possess jurisdiction to reach the merits of the motion. If a motion is filed for which a court
lacks subject matter jurisdiction, the court‟s only authority is to deny the motion for lack of
subject matter jurisdiction. Cf. Idaho Rule of Civil Procedure 12(g)(4) (“Whenever it appears by
suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the
court shall dismiss the action.”)
Here, Peterson‟s motion was not one for correction of an illegal sentence. Therefore,
even if I.C.R. 35 was a proper vehicle for presentation of Peterson‟s claim of ineffective
assistance of counsel in sentencing proceedings, the motion was untimely under that rule, and the
district court had no jurisdiction to grant the motion.
Accordingly, the district court‟s order setting aside Peterson‟s original sentences is void
for lack of subject matter jurisdiction, as are the new sentences that were thereafter imposed by
the second judge. The new sentences imposed by the second judge must be set aside and the
original sentences reinstated.2
2
Somewhat ironically, although Peterson opposed the State‟s jurisdictional argument, he
benefits from it because his original sentences, which are now reinstated, were shorter than the
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B. Motion to Withdraw Guilty Plea
We next consider Peterson‟s challenge to the order denying his motion to withdraw his
guilty plea. We conclude that this motion, like Peterson‟s Rule 35 motion, was untimely and
hence, the court lacked subject matter jurisdiction to address the merits.
Motions to withdraw guilty pleas are authorized by I.C.R. 33(c). Once a judgment
becomes final, however, a trial court does not have jurisdiction to amend or set aside the
judgment absent a statute or a rule extending jurisdiction. State v. Rogers, 140 Idaho 223, 228,
91 P.3d 1127, 1132 (2004); State v. Jakoski, 139 Idaho 352, 355, 79 P.3d 711, 714 (2003);
Armstrong, 146 Idaho at 377-78, 195 P.3d at 736-37. A judgment becomes final at the
expiration of time for appeal or affirmance of the judgment on appeal, and a motion to withdraw
a guilty plea may not be granted thereafter. Jakoski, 139 Idaho at 355, 79 P.3d at 714;
Armstrong, 146 Idaho at 377-78, 195 P.3d at 736-37.
The trial court here lacked subject matter jurisdiction to entertain Peterson‟s motion to
withdraw his guilty plea because the judgment of conviction had become final upon this Court‟s
issuance of a remittitur some two months before Peterson filed his motion. Accordingly,
Peterson has shown no error in the denial of his motion for withdrawal of the guilty plea. We
affirm the denial order, albeit on a ground different from that upon which the district court relied.
C. Other Issues Are Moot
Because we have concluded that the district court lacked subject matter jurisdiction to
entertain Peterson‟s Rule 35 motion to modify his sentence and also lacked jurisdiction on
Peterson‟s motion to withdraw his guilty plea, the remaining issues asserted by Peterson on
appeal, including his claim that his motion to disqualify the second district judge was
erroneously denied, are moot. We therefore do not address them.
III.
CONCLUSION
The district court‟s order granting Peterson‟s I.C.R. 35 motion to set aside his original
sentences is reversed, the district court‟s subsequent order imposing new sentences is vacated,
new sentences imposed by the second district judge in proceedings for which there was no
subject matter jurisdiction.
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and the original sentences are reinstated. The district court‟s order denying Peterson‟s motion to
withdraw his guilty plea is affirmed.
Judge GUTIERREZ and Judge MELANSON CONCUR.
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