               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 43791

STATE OF IDAHO,                                )    2016 Unpublished Opinion No. 823
                                               )
       Plaintiff-Respondent,                   )    Filed: December 27, 2016
                                               )
v.                                             )    Stephen W. Kenyon, Clerk
                                               )
CLAYTON ROBERT ADAMS,                          )    THIS IS AN UNPUBLISHED
                                               )    OPINION AND SHALL NOT
       Defendant-Appellant.                    )    BE CITED AS AUTHORITY
                                               )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Renae J. Hoff, District Judge.

       Order denying I.C.R. 35 motion for credit for time served, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Sally J. Cooley, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

MELANSON, Chief Judge
       Clayton Robert Adams appeals from the district court’s order denying Adams’s I.C.R. 35
motion for credit for time served. Adams contends that, although his sentences were originally
ordered to run consecutively, they became concurrent after the district court afforded Adams a
resentencing hearing on one of his convictions. For the reasons set forth below, we affirm.
       A jury found Adams guilty of second degree murder, I.C. §§ 18-4001 and 18-4003(g),
and aggravated battery, I.C. § 18-907. In 2007, the district court sentenced Adams to a unified
life term, with a minimum period of confinement of twenty-five years, for second degree murder
and a unified term of ten years, with a minimum period of confinement of three years, for
aggravated battery, “with said sentences to run consecutively.” Adams filed an I.C.R. 35 motion
for reduction of his sentences, which the district court denied. On direct appeal, this Court



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affirmed Adams’s judgment of conviction and sentences. State v. Adams, 147 Idaho 857, 216
P.3d 146 (Ct. App. 2009). Adams filed a pro se petition for post-conviction relief and filed an
amended petition raising numerous claims of relief. The district court partially granted Adams’s
petition, concluding trial counsel had failed to challenge the district court’s misinterpretation of
the sentencing standards in I.C. § 18-8004, and afforded Adams a resentencing hearing for
second degree murder.1 At the resentencing hearing in 2014, the district court again imposed a
unified life term, with a minimum period of confinement of twenty-five years, for second degree
murder. The district court entered an amended judgment of conviction in which the district court
also noted that the previously imposed aggravated battery sentence would remain as reflected in
the original judgment of conviction. Adams appealed, asserting that his second degree murder
sentence was excessive. In an unpublished opinion, this Court affirmed. State v. Adams, Docket
No. 42667 (Ct. App. Aug. 11, 2015).
       Adams subsequently filed a motion for credit for time served under I.C.R. 35 relating to
the consecutive aggravated battery sentence, arguing that he was entitled to have the sentence
run concurrent to the second degree murder sentence because the district court did not reimpose
the consecutive nature of Adams’s sentences at the resentencing hearing. The district court
denied Adams’s motion. Adams appeals.
       The awarding of credit for time served is governed by I.C. § 18-309. The language of
I.C. § 18-309 is mandatory and requires that, in sentencing a criminal defendant or when hearing
an I.C.R. 35(c) motion for credit for time served, the court give the appropriate credit for
prejudgment incarceration. State v. Moore, 156 Idaho 17, 20-21, 319 P.3d 501, 504-05 (Ct. App.
2014). This means that the defendant is entitled to credit for all time spent incarcerated before
judgment. Id., 156 Idaho at 21, 319 P.3d at 505. The converse is also true--that the defendant is
not entitled to credit under I.C. § 18-309 for any time not actually spent incarcerated before
judgment. Id.; see also State v. Hernandez, 120 Idaho 785, 792, 820 P.2d 380, 387 (Ct. App.
1991) (holding that I.C. § 18-309 does not allow the defendant to receive credit for more time
than he or she has actually been in confinement). Accordingly, a district court may only give


1
        The district summarily dismissed Adams’s remaining post-conviction claims and Adams
appealed. This Court recently affirmed the district court’s order summarily dismissing Adams’s
petition. Adams v. State, Docket No. 42920 (Ct. App. Nov. 4, 2016) (rev. pending).

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credit for the correct amount of time actually served by the defendant prior to imposition of
judgment in the case and does not have discretion to award credit for time served that is more or
less than that. Moore, 156 Idaho at 21, 319 P.3d at 505. Thus, the defendant is entitled to credit
for time actually served prior to entry of judgment in the case. Id.
         The question of whether a sentencing court has properly awarded credit for time served is
a question of law, which is subject to free review by this Court. State v. Vasquez, 142 Idaho 67,
68, 122 P.3d 1167, 1168 (Ct. App. 2005). We defer to the district court’s findings of facts,
unless those findings are unsupported by substantial and competent evidence in the record and
are therefore clearly erroneous. State v. Covert, 143 Idaho 169, 170, 139 P.3d 771, 772 (Ct. App.
2006).
         On appeal, Adams argues that he is entitled to credit for time served on his aggravated
battery sentence because it is now concurrent with his sentence for second degree murder.
Specifically, Adams contends that, when the district court granted post-conviction relief and
afforded Adams a resentencing hearing on his second degree murder sentence, his original
second degree murder sentence was vacated and left no contemporaneous sentence with which
his aggravated battery sentence could run consecutive. Adams also asserts that the district court
made no oral pronouncement at the resentencing hearing that his sentences were to run
consecutively and, therefore, his sentences became concurrent. Consequently, Adams concludes
that he is entitled to credit for time served on his aggravated battery sentence from the date his
aggravated battery sentence was originally imposed in 2007. Conversely, the State argues that
there was no indication in the record that the district court vacated Adams’s sentence for second
degree murder when it granted post-conviction relief and resentencing and that the aggravated
battery sentence was, at all times, consecutive to the second degree murder sentence. In reply,
Adams contends that, although the district court never used the word “vacated,” the effect of the
district court ordering resentencing was the same whether the district court used the word
“vacated” or not.
         Initially, we note that the transcript of the district court’s ruling in Adams’s
post-conviction case and the judgment disposing of Adams’s post-conviction case are not




                                                 3
included in the record in this appeal.2 The amended judgment of conviction, however, indicates
that the district court granted partial relief of Adams’s post-conviction claims relating to trial
counsel’s failure to challenge the sentencing court’s misinterpretation of I.C. § 18-4004 when it
originally imposed Adam’s sentence for second degree murder. The district court therefore
afforded Adams a resentencing hearing for second degree murder.3 Adams’s claim for time
served is premised on the proposition that the district court’s grant of post-conviction relief
affording Adams a resentencing hearing effectively vacated his original sentence for second
degree murder. We begin our analysis addressing the threshold issue of whether the district
court vacated Adams’s second degree murder sentence in granting partial post-conviction relief.
       An action for post-conviction relief is civil, and not criminal, in nature. State v. Law, 131
Idaho 90, 93, 952 P.2d 905, 908 (Ct. App. 1997). It is a new action, distinct from the underlying
criminal case in which the petitioner was convicted. Id. The purpose of post-conviction relief
action is to remedy certain types of errors that may have occurred in a petitioner’s criminal case.
Id.; see also I.C. § 19-4901. In Law, this Court explained that, when a petitioner has established
a right to relief, the remedy is selected and ordered by the court in the post-conviction action.
The post-conviction action is concluded when such a directive for a remedy has been issued in a
final order or judgment. The remedy afforded in the post-conviction action generally must be
carried out by the court in the criminal case. Law, 131 Idaho at 93, 952 P.2d at 908. That is, the
post-conviction court will order that some action be taken in the criminal case to remedy the
violation of the petitioner’s rights. Such remedy may include, for example, an order for a new


2
       Although Adams asserts in his brief that he augmented the appellate record in this matter
with the record from his post-conviction case, no related motion or order was filed. Thus,
contrary to Adams’s assertion, the record in this case does not include the record from his post-
conviction case. It is the responsibility of the appellant to provide a sufficient record to
substantiate his or her claims on appeal. State v. Murinko, 108 Idaho 872, 873, 702 P.2d 910,
911 (Ct. App. 1985). In the absence of an adequate record on appeal to support the appellant’s
claims, we will not presume error. State v. Beason, 119 Idaho 103, 105, 803 P.2d 1009, 1011
(Ct. App. 1991).
3
        Although the record does not include a transcript of the district court’s ruling or the final
judgment disposing of Adam’s post-conviction case, we can infer from the record and the
parties’ arguments that the district court’s grant of post-conviction relief did not disturb Adams’s
sentence for aggravated battery.

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trial in the criminal case or an order that the petitioner be allowed to withdraw a guilty plea. This
Court held that such remedies are carried out by reopening the criminal case and conducting
further proceedings in that case. Id.
       In this case, the district court’s ruling and judgment in Adams’s post-conviction case
constituted a directive that the afforded remedy--resentencing hearing on Adams’s second degree
murder conviction--be carried out in Adams’s criminal case. Neither the district court’s ruling
nor its written judgment in Adams’s post-conviction case could have vacated his second degree
murder sentence. Therefore, Adams’s argument that his original sentence for second degree
murder was effectively vacated when the district court granted post-conviction relief is untenable
in light of Law. Moreover, once Adams’s criminal case was reopened, there was no order or
judgment entered that vacated, either in full or in part, the original judgment of conviction.
Although the district court entered an order for resentencing in the criminal case, the effect of
that order was limited to establishing the parameters for the presentation of evidence at the
resentencing hearing.4 The order did not address the status of or vacate Adams’s original
sentence for second degree murder, and we will not infer otherwise. The only order or judgment
entered in Adams’s criminal case that reflected the remedy afforded in Adams’s post-conviction
case and affected the original judgment of conviction was the amended judgment of conviction
entered following Adams’s resentencing hearing. Thus, Adams’s aggravated battery sentence
was, at all times, contemporaneous to the second degree murder sentence.         Therefore, Adams
has not shown that the original second degree murder sentence was vacated by the district court’s
post-conviction summary dismissal and resentencing orders. Consequently, Adams’s argument
that there was no contemporaneous sentence for the aggravated battery sentence to run
consecutive to when the district court granted post-conviction relief necessarily fails.
       Adams also argues that the only way his sentences could run consecutively following his
resentencing in 2014 was for the district court to declare such in its oral pronouncement at the
resentencing hearing. Adams contends that, because the district court failed to make an oral

4
        The district court entered the order in response to the parties’ arguments relating to the
State’s motion for a limited resentencing hearing. Specifically, the district court’s order set out
that it would consider information from the original sentencing and would allow only specified
and nonduplicative evidence at the resentencing hearing.



                                                 5
pronouncement concerning the consecutive nature of Adams’s sentences at the resentencing
hearing, the district court’s attempt to incorporate the aggravated battery sentence into the 2014
written amended judgment of conviction was ineffective because the oral pronouncement
controls. Indeed, when there is a disparity between the sentence imposed in open court and that
expressed in the written judgment of conviction, it is the orally pronounced sentence that is
effective. State v. Dreier, 139 Idaho 246, 254, 76 P.3d 990, 998 (Ct. App. 2003).
       Here, the district court’s jurisdiction at the resentencing hearing was limited because
post-conviction relief was granted only to remedy the district court’s misinterpretation of the
minimum sentencing requirements in I.C. § 18-4004 relevant to Adams’s second degree murder
conviction. Thus, the district court only had jurisdiction to resentence Adams for second degree
murder under the proper interpretation of the relevant sentencing standard. Adams’s aggravated
battery sentence and its consecutive nature, which had previously been upheld on appeal, were
not at issue at Adams’s resentencing hearing. See State v. Justice, 152 Idaho 48, 54-55, 266 P.3d
1153, 1159-60 (Ct. App. 2011) (reviewing and modifying a sentence for two convictions did not
alter the defendant’s consecutive sentences). As Adams correctly indicates, the district court
noted in Adams’s amended judgment of conviction that his aggravated battery sentence would
remain as pronounced in the original judgment of conviction. However, this notation was not an
attempt by the district court to modify or alter Adams’s consecutive aggravated battery
sentence--it was just the opposite. Thus, the district court was not required to address the
aggravated battery sentence at the resentencing hearing. The amended judgment of conviction
detailing Adams’s sentence for second degree murder was consistent with the district court’s oral
pronouncement. Thus, Adams has failed to show that the district court was required to make an
oral pronouncement at the resentencing hearing that his sentences would be served
consecutively.
       Adams has not shown that his consecutive sentence became concurrent following the
district court’s judgment in Adams’s post-conviction case. Consequently, Adams has failed to
show the district court erred in denying Adams’s motion for credit for time served with regard to
his sentence for aggravated battery. Accordingly, the district court’s order denying Adams’s
I.C.R. 35 motion for credit for time served is affirmed.
       Judge GUTIERREZ and Judge GRATTON, CONCUR.


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