               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 40477

STATE OF IDAHO,                                   )
                                                  )     2013 Opinion No. 59S
       Plaintiff-Respondent,                      )
                                                  )     Filed: January 10, 2014
v.                                                )
                                                  )     Stephen W. Kenyon, Clerk
TEDDY LYNN EDGHILL,                               )
                                                  )     SUBSTITUTE OPINION
       Defendant-Appellant.                       )     THE COURT’S PRIOR OPINION
                                                  )     DATED NOVEMBER 8, 2013,
                                                  )     IS HEREBY WITHDRAWN
                                                  )
                                                  )
                                                  )

       Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bear
       Lake County. Hon. Mitchell W. Brown, District Judge.

       Order     denying    I.C.R.   35       motion      for    correction   of   illegal
       sentence, reversed and remanded.

       S. Criss James, Soda Springs, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy
       Attorney General, Boise, for respondent. Daphne J. Huang argued.
                 ________________________________________________
WALTERS, Judge Pro Tem
       Teddy Lynn Edghill appeals from the district court’s order denying his I.C.R. 35 motion
for correction of an illegal sentence. For the reasons set forth below, we reverse and remand for
resentencing with respect to the suspension of Edghill’s driver’s license.
                                                 I.
                                  FACTS AND PROCEDURE
       In 1997, Edghill was driving a jeep with several children riding on the front bumper. At
one point, Edghill required that the children get inside the jeep and drove to a store. Upon
returning from the store, Edghill stopped the jeep and allowed the children to get out and again
ride on the front bumper. One of the children either jumped or fell off. Edghill ran over the
child with the jeep and the child died a short time later from the injuries sustained in the

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accident. Edghill was charged with vehicular manslaughter. I.C. § 18-4006(3)(a). He pled
guilty and was sentenced to a unified six-year term of incarceration, with a minimum period of
confinement of three years. The district court also suspended Edghill’s driver’s license for life.
The district court retained jurisdiction and, at the expiration of the retained jurisdiction period,
suspended execution of Edghill’s sentence and placed him on probation for four years.
However, the lifetime driver’s license suspension remained in effect.
       Edghill filed an I.C.R. 35 motion, contending that the lifetime suspension of his driver’s
license was illegal.    Edghill also requested leniency in his sentence, seeking a withheld
judgment. Following a hearing on Edghill’s motion, the district court entered an order denying
the request for a withheld judgment. However, the district court took Edghill’s motion, insofar
as it pertained to the legality of the lifetime suspension of his driver’s license, under advisement.
On December 22, 1998, the district court issued a separate order finding that the lifetime
suspension of Edghill’s driver’s license was not an illegal sentence. In this order, entitled “Order
Amending Judgment of Conviction,” the district court amended the judgment by specifically
adding a provision that it would consider a petition to allow Edghill to apply for a driver’s
license after the expiration of ten years from the date of the original judgment.
       Edghill appealed the district court’s order denying his I.C.R. 35 motion. This Court
affirmed, holding a lifetime driver’s license suspension pursuant to a violation of I.C. § 18-
4007(3)(d) was not an illegal sentence. State v. Edghill, 134 Idaho 218, 221, 999 P.2d 255, 258
(Ct. App. 2000). After a period of time, Edghill brought various motions seeking relief from his
lifetime license suspension consistent with the order amending judgment entered December 22,
1998. In response to one of these motions, the district court afforded Edghill a ninety-day
conditional driving permit, which allowed Edghill to drive an all-terrain vehicle (ATV) in a
limited capacity. When this conditional permit expired, Edghill again petitioned the district
court and was again granted a conditional driving permit to operate an ATV, this time for a
period of one year. When the one-year permit expired, Edghill again petitioned the district court
and was granted a two-year conditional permit to operate his ATV.




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       In January 2012, Edghill filed another motion to reinstate his driving privileges. 1 The
district court denied Edghill’s motion and did not grant him any type of conditional driving
permit. The district court also ruled the provision of the sentence allowing Edghill to continually
petition for driving privileges after ten years was illegal and struck that portion of his sentence. 2
The district court left in place the portion of the sentence suspending Edghill’s license for life. 3
Edghill then filed another I.C.R. 35 motion, claiming the driver’s license suspension was illegal.
The district court denied the motion and further explained its previous ruling--that a portion of
the sentence allowing reinstatement of driving privileges in the district court’s discretion after
ten years was illegal and needed to be stricken. Edghill appeals from the denial of his I.C.R. 35
motion.
                                                 II.
                                            ANALYSIS
       Edghill argues that the modification of his sentence, deleting the opportunity to apply for
driving privileges after ten years, is illegal because it constitutes a harsher sentence than the one
originally imposed. He also argues that he should be resentenced by the district court with
regard to the driver’s license suspension. 4 The state contends Edghill’s argument is barred by
invited error and res judicata.
A.     Invited Error
       The state argues Edghill is estopped from arguing the district court abused its discretion
in striking the illegal portion of his sentence because the alleged error was induced by Edghill’s


1
       At this point in time, the original district judge who sentenced Edghill had retired and a
new judge had taken the bench.
2
        Edghill concedes this provision of his sentence was illegal. This concession is correct in
light of State v. Petersen, 149 Idaho 808, 811, 241 P.3d 981, 984 (Ct. App. 2010) (typically, a
court’s jurisdiction ends once the court orders a defendant into the custody of the Board of
Correction).
3
        The district court made these rulings at an April 5, 2012, hearing. The transcript from
this hearing is not part of the record on appeal. The facts set forth as to that hearing are gathered
from the district court’s memorandum decision on the subsequent I.C.R. 35 motion.
4
        Edghill also argues he received a vindictive sentence and that the district court abused its
discretion in excising only the illegal provision. Given our disposition below, we need not
address these arguments.

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own conduct. The doctrine of invited error applies to estop a party from asserting an error when
his or her own conduct induces the commission of the error. State v. Atkinson, 124 Idaho 816,
819, 864 P.2d 654, 657 (Ct. App. 1993). One may not complain of errors one has consented to
or acquiesced in. State v. Caudill, 109 Idaho 222, 226, 706 P.2d 456, 460 (1985); State v. Lee,
131 Idaho 600, 605, 961 P.2d 1203, 1208 (Ct. App. 1998). In short, invited errors are not
reversible. State v. Gittins, 129 Idaho 54, 58, 921 P.2d 754, 758 (Ct. App. 1996). This doctrine
applies to sentencing decisions as well as rulings made during trial. State v. Griffith, 110 Idaho
613, 614, 716 P.2d 1385, 1386 (Ct. App. 1986).
       Here, the specific relief Edghill sought is not what was granted by the district court. The
procedural history of this case indicates the district court sua sponte decided the provision of
Edghill’s sentence allowing him to reapply for a driver’s license was illegal. The district court
made this determination after a hearing on a motion for another conditional driving permit.
Thus, the doctrine of invited error does not apply in this case.
B.     Res Judicata
       The state also argues that the doctrine of res judicata applies to preclude Edghill from
arguing that his lifetime license suspension is illegal.       The doctrine of res judicata bars
relitigation of issues that have been previously decided in an action between the same litigants.
See State v. Rhoades, 134 Idaho 862, 863, 11 P.3d 481, 482 (2000); State v. Beam, 115 Idaho
208, 210-11, 766 P.2d 678, 680-81 (1988). The issue of whether an action is barred by res
judicata is a question of law over which we exercise free review. Rhoades, 134 Idaho at 863, 11
P.3d at 482. In Edghill’s direct appeal, he argued that the sentencing provision suspending his
driver’s license for life was illegal. This Court determined that such suspension was permitted
under the applicable statute. To the extent Edghill raises this same argument on appeal from the
denial of his I.C.R. 35 motion, it is barred by res judicata. However, the question whether the
2012 modification of the license suspension is illegal was not before this Court in Edghill’s
earlier appeal, and that issue is not foreclosed.
C.     Resentencing
       Edghill argues that, after the district court determined that part of Edghill’s sentence was
illegal, he should have been resentenced regarding the license suspension instead of the district
court excising the portion that provided an opportunity for reinstatement after ten years. In State
v. Money, 109 Idaho 757, 710 P.2d 667 (Ct. App. 1985), this Court faced a scenario in which the


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district court initially imposed an illegal sentence. Money was convicted of second degree
murder and received an indeterminate twelve-year term, together with a consecutive
indeterminate two-year period for the use of a firearm. However, the pertinent statute required a
minimum enhancement of three years. Upon its own motion, the district court corrected the
sentence by increasing the enhancement period from two years to three years. On appeal, Money
argued that he was denied due process when the district court corrected his sentence outside of
his presence and that the corrected sentence was invalid.         This Court then explained the
applicable standard when correcting an illegal sentence:
               A trial court may correct an illegal sentence at any time. See I.C.R. 35;
       State v. Mendenhall, 106 Idaho 388, 679 P.2d 665 (Ct. App. 1984). Further, when
       correcting an illegal sentence a trial court is not bound by the terms of the original
       sentence. Rather, a trial court may resentence to any punishment permitted for
       the offense under the provisions of the applicable statutes. State v. Lindquist, 99
       Idaho 766, 589 P.2d 101 (1979); State v. Hoisington, 105 Idaho 660, 671 P.2d
       1362 (Ct. App. 1983). If the original sentence imposed is determined to be void,
       a defendant’s sentence may be enhanced to comply with the requirements of the
       law. State v. Aguilar, 98 N.M. 510, 650 P.2d 32 (Ct. App. 1982).

Money, 109 Idaho at 759, 710 P.2d at 669. The Court stated that Money’s original sentence was
invalid and, therefore, sentence was not imposed until the district court corrected the judgment.
Thus, the Court held Money was denied due process, as a defendant must be personally present
when sentence is pronounced for a felony. I.C. § 19-2503; I.C.R. 43(a). The Court further stated
that, when a district court corrects a sentence, it should consider the whole sentence, not merely
one segment of the whole. Money, 109 Idaho at 760, 710 P.2d at 670. The district court’s order
in this case demonstrates it failed to consider Edghill’s whole sentence (as it pertained to the
license suspension) because it incorrectly concluded it lacked the authority to do so.
       Likewise, in Lopez v. State, 108 Idaho 394, 700 P.2d 16 (1985), the district court
corrected an illegal sentence ex parte. On appeal, the Idaho Supreme Court held that this denied
Lopez due process of law, citing to I.C. § 19-2503 and I.C.R. 43(a). 5 The Court stated that the


5
        Idaho Criminal Rule 43(a) provides, “The defendant shall be present at the arraignment,
at the time of the plea, at every stage of the trial including the impaneling of the jury and the
return of the verdict, and at the imposition of sentence, except as otherwise provided by this
rule.” Further, I.C.R. 43(c)(4) provides that the defendant need not be present at an I.C.R. 35
motion for reduction of sentence. The inclusion of this, and exclusion of an I.C.R. 35 motion for
correction of an illegal sentence, further indicates the defendant’s presence is required in such

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statute and rule establish that a defendant’s presence at the time of sentencing is mandatory, not
discretionary, and when the original sentence was invalid, sentence was not imposed until the
district court corrected the judgment. Lopez, 108 Idaho at 396, 700 P.2d at 18. Money and
Lopez demonstrate that resentencing with Edghill present was the proper procedure for the
district court to take in this case.
        However, as noted in the district court’s order, there is no Idaho case law directly on
point with respect to striking an illegal portion of a defendant’s sentence under I.C.R. 35. The
district court turned to the Ninth Circuit case United States v. Jordan, 895 F.2d 512 (9th Cir.
1990). In Jordan, the district court imposed sentences of imprisonment in a case involving
multiple counts of mail fraud.         Jordan filed a motion under Federal Rule of Criminal
Procedure 35 to correct his sentences, arguing that they were illegal. The district court agreed
that the original sentences imposed were illegal. However, the district court proceeded to
restructure the new sentence in such a way as to effectuate the intent of the original sentences
regarding the overall term of imprisonment. On appeal, the Ninth Circuit held that, in correcting
illegal sentences, the district court could only reduce the excess; it did not have the authority to
order the corrected sentences to run consecutively in an attempt to effectuate the underlying
intent of the original sentences. Id. at 514.
        Nevertheless, Idaho jurisprudence runs contrary to Jordan and there is sufficient Idaho
authority to resolve the issue in this case without resort to other jurisdictions. Money indicates
that, in correcting a sentence of incarceration, the district court is free to impose any sentence
that is permitted for the offense under the applicable statute (although Money does predicate that
upon the underlying sentence being determined void or invalid). 6 When correcting an illegal
sentence in such a scenario, the district court resentences the defendant and the defendant’s
presence is required. I.C. § 19-2503; I.C.R. 43(a); Money, 109 Idaho at 759, 710 P.2d at 669.




situations. See State v. Schoger, 148 Idaho 622, 629, 226 P.3d 1269, 1276 (2010) (stating the
inclusion of one thing is the exclusion of another under the statutory construction principle of
inclusio unius est alterius).
6
       Of course, constitutional prohibitions against vindictive sentencing would be applicable.
See Wasman v. United States, 468 U.S. 559, 564-69 (1984); Chaffin v. Stynchcombe, 412 U.S.
17, 24-25 (1973); State v. Robbins, 123 Idaho 527, 530-31, 850 P.2d 176, 179-80 (1993).

                                                 6
Finally, Money is closer to the situation here, as opposed to Jordan, because Money was dealing
with only one sentence (as is the case here), rather than the multiple sentences involved in
Jordan. When dealing with one sentence, Money requires that the district court consider the
whole sentence of incarceration and not just a segment of the whole. In this case, that means
considering both provisions of the license suspension, including its length.
       Last, Lopez also provides guidance on whether the sentence is invalid in full or if only a
portion is invalid. There, Lopez pled guilty to second degree kidnapping and admitted to being a
persistent violator. The district court initially imposed an indeterminate term of fifteen years for
kidnapping and a separate life term for being a persistent violator. The district court then
realized a persistent violator allegation does not constitute a second offense for sentencing
purposes, but merely allows for enhancement. Therefore, the district court entered an ex parte
order of commitment that provided an indeterminate fifteen-year sentence for kidnapping,
enhanced by an indeterminate fifteen-year term on the persistent violator allegation. Lopez
brought a petition for post-conviction relief, which the district court denied. On appeal, Lopez
contended that the district court’s original sentence needed to be divided into two parts, resulting
in a determination that the sentence for the underlying felony was lawful and that the sentence
for the persistent violator charge was unlawful. Lopez further contended that, even though the
district court could decrease or vacate the unlawful provision, it could not increase the lawful
provision because the unlawful provision does not render the entire sentence unlawful and
subject to correction. Lopez, 108 Idaho at 395-96, 700 P.2d at 17-18.
       The Idaho Supreme Court disagreed and held that, because the two provisions were
interdependent, the entire sentence was invalid ab initio. The Court further explained:
               Hence, even where separate counts may be deemed interdependent to the
       extent they comprise but one criminal transaction, the sentence for each count
       remains a separate sentence and where an unlawful sentence on one such count is
       vacated, the court may not increase the sentence already imposed on a remaining
       lawful count.
               However, the same result does not obtain where two purported sentences
       are not separate but comprise one general sentence.

Id. at 396 n.3, 700 P.2d at 18 n.3. Here, while the situation differs from that in Lopez, it would
seem that the two provisions of Edghill’s license suspension are not separate, but comprise one
general sentence. The district court afforded Edghill the opportunity to petition for reinstatement



                                                 7
of his license after a certain number of years and subsequently did grant driving privileges to
Edghill. Given these circumstances, it does not appear the district court intended a true lifetime
suspension, but a lifetime suspension subject to modification (the illegal provision). Therefore,
upon resentencing Edghill, the district court is required to consider all parameters of the license
suspension, including its length, rather than just excising the provision deemed to be illegal, and
the district court should then impose an appropriate sentence for the driver’s license suspension.
                                                III.
                                         CONCLUSION
       The district court erred in severing the illegal provision of Edghill’s sentence. The
district court should have held a resentencing hearing with Edghill present and should have
considered both provisions of the driver’s license suspension. Accordingly, we reverse the order
of the district court denying the I.C.R. 35 motion for correction of an illegal sentence and remand
for resentencing as to the driver’s license suspension.
       Chief Judge GUTIERREZ and Judge LANSING, CONCUR.




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