                IN TIIE COURT OF APPEALS OX'THE STATE OF IDAHO

                                          Docket No.44388

STATE OF IDArrO,                                       2017 Opinion No.39

        Plaintifi-Respondent,                          Filed: Jtly2l,20l7

Y.                                                     Karel A. Lehrman, Clerk

RUSSELL ALLEN PASSONS,

        Defendant-Appellant.


        Appeal from the Distict Court of the First Judicial District, State of Idatro, Kootenai
        County. Hon. Richard S. Christensen, District Judge.

        Denial ofRule 35 motion, affirmed.

        Eric D. Fredericksen, State Appellate Public Defender; Brian R. Dicksoq Deputy
        Appellate Public Defender, Boise, for appellant.

        Hon. Lawrence G. Wasden, Attomey General; Russell J. Spencer, Deputy Attomey
        General, Boise, for respondent.


GRATTON, Chief Judge
       Russell Allen Passons appeals from the distict court's denial of his Idatro Criminal
Rule 35 motion to correct an illegal sentence.
                                                  I.
                     X'ACTUAL AI\ID PROCEDURAL BACKGROTJI\ID
       Passons was convicted  of two counts of aggravated assault, Idatro Code $$ 18-901, 18-
905, and one count of bruglary, I.C. $ 18-1401. He was sentencedto concurrentterms of five
years determinate on the first count       of   aggravated assaulq twenty years    with ten years
determinate on the second count of aggravated assault, and ten years with five years determinate
for the burglary conviction. Passons appealed from his judgment of conviction, which this Court
affirmed. State v. Passons,l58 Idaho 286,346 P.3d 303 (Ct. App. 2015). Thereafter, he filed an
I.C.R. 35(a) motion asking the court to correct what he alleges is an illegal sentence. At issue is
the sentence for the second count of aggravated assault, which included a fifteen-year sentence
  enhancement under I.C.      $ 19-2520 for   use of a deadly weapon--in this case a      knife.   passons
       I.C. $ 19-2520 does not authorize a longer sentence in his case. The dishict court denied
  argues

 his motion. Passons timely appeals.

                                                       I.
                                               ANALYSIS
           On appeal,    Passons asserts tlrat   his    sentence    is illegal and should be vacated.
 Specifically, he challenges the sentence enhancement on his second count of aggravated assault.
 Pursuant to Rule 35, the district court may correct an illegal sentence at any time. In an
                                                                                            appeal
 from the denial of a motion under Rule 35 to correct an illegal sentence, the question of whether
 the sentence imposed is illegal is a question of law freely reviewable by the appellate court.
 State v. Josephson, l24Idaho 286,287,858 P.2d 825,826 (Ct. App. 1993); State v. Rodriguez,
 119 Idaho 895, 897, 8l I P.2d 505, 507 (Ct. App. l99l).

           The State counters with several argurnents, both on procedural and substantive grounds.
 First, it asserts the district cotut lacked jurisdiction to hear Passons' challenge to his underlying
 conviction, noting that while I.C.R. 35 allows a court to correct an illegal sentence at any time,
                                                                                                        it
 is not a mechanism to challenge an underlying judgment of conviction. The State argues passons
 is essentially   challenging his judgment       of   conviction on the use       of a deadly weapon
enhancement not his sentence, and such a challenge would be untimely. The State also argues
that because this Court has previously decided whether his conviction was lawful on direct
appeal, his claim is barred under the doctrine of res judicata. However, these arguments
                                                                                         fail. In
Statev' Burnight, 132 Idatro 654, 978 P.2d 214 (lgg9), the State asserted that a sentence
enhancement issue was improperly raised through a Rule 35 motion; however, the Idaho
Supreme Court disagreed, holding "the issue was properly raised in a Rule 35 motion
                                                                                         because
enhancements are not considered to be a new offense for which there is a sepamte
                                                                                        sentence.
Rather, the enhancement is an additional term and is part of a single sentence for the
                                                                                       underlying
crime." Burnight, 132 Idaho at 658-659,       978 P.2d      at 218-219. Similarly, because this issue is
properly raised under Rule 35 and is not an appeal of his conviction, the State's argument
                                                                                           that
the conviction has been appealed and therefore the issue of the sentence enhancement
                                                                                      is           barred
by res judicata also fails.
      The United States Supreme Court has addressed how to analyze where there may
                                                                                               be
cumulative punishments under two statutes. Initially, courts should apply the test as
                                                                                      set forth in
Bloclrburger v. United States,284 U.S. 299 (1932), which provides: "The applicable rule is that
where the same act or tansaction constitutes a violation of two distinct statutory provisions, the

test to be applied to deterrrine whether there are two offenses or only one, is whether each
provision requires proof of a fact which the other does not." Id. at 304. However, this is not
always conclusive because as the Court noted, "The assumption underlying the rule is that
Congress ordinarily does not intend to punish the sarne offense under two different statutes.
Accordingly, where two statutory provisions proscribe the 'same offense,' they are construed not
to authorize cumulative punishments in the absence of a clear indication of contrary legislative
intent." Missouri v. Hunter,459 U.S. 359,366 (1983) (quoting Whalen v. United States,445
U.S. 684, 691-692 (1980)). Therefore, cumulative sentences are not permitted where the
offenses are the same "unless elsewhere specially authorized by Congress." Id. at367 (quoting
Whalen, 445 U.S. at 693).

       ln Whalen,   the petitioner was convicted of rape and killing in perpetation of rape and
sentenced   to consecutive terms of imprisonment. Whalen,445 U.S. at 685. The United States
Supreme Court held that the cumulative sentences      in ttrat case were not permitted under the
Blockburger test since a conviction for killing in perpetration of rape cannot occur without
proving all the elements of the offense of rape. Whalen,445 U.S. at 693-694. The Court
reversed and remanded the lower court's judgrnent because there was no specific authorization

by the legislature to hold otherwise. Id. at 695. Conversely, in Albernaz v. United States, 450
U.S 333 (1981), the United States Supreme Court held that cumulative sentences for importing
marijuana and conspiracy to distribute marijuana were pemrissible since they were not the same
offense nnder Blockburger and since each crime required proof       of a fact the other did   not.
Albernaz,450 U.S. at 339. Subsequently, in Hunter the United States Supreme Court held that
the petitioner's sentences for both robbery in the first degree and armed criminal action were
specifically authorized by the legislature, and therefore cumulative sentences were permitted.
Hunter,459 U.S. at 368. The Court provided the following explanation:
       Our analysis and rcasening rn Wlalen and Albernaz lead inescapably to the
       conclusion that simply because two criminal stattrtes may be constnred to
       proscribe the same conduct under the Blockburger test does not mean that the
       Double Jeopardy Clause precludes the imposition, in a singls trial, of cumulative
       punishments pursuant to those statutes. The rule of statutory construction noted
       in Whalen is not a constitutional rule requiring courts to negate clearly expressed
       legislative intent. Thus far, we have utilized that rule only to limit a federal
       court's power to impose convictions and punishments when the will of Congress
       is not clear. Here, the Missouri Legislature has made its intent crystal Cler..
       Legislatures, not courts, prescribe the scope of punishments
Hunter,459 U.S. at 368. Therefore, whether a sentence may be had under each statute is a
question of legislative intent. As noted in Hunter, *With respect to cumulative sentences
imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing

court from prescribing gteater punishment than the legislature intended." Id. at 366.
       In this case the use of a deadly weapon is the basis for the underlying crime of aggravated
assault,   I.C. $   18-905, and the sentence enhancemen!       I.C. $ 19-2520. The       sentence
enhancement statute provides that certain increases     to the marimum potential penalty for
particular crimes can be imposed when the crimes are committed using a firearm or other deadly
weapon:

               Any person convicted of a violation of sections 18-905 (aggrwated assault
        deJined), 18-907 (aggravated battery defined), 18-909 (assauli with intent to
        commit a serious felony defined), 18-91I (battery with intent to commit a serious
        felony defined), 18-1401 (burglary defined), l8-150s(3), lg-150g(4), lg-150g(5),
        18-1508(6) (lewd conduct with minor or child under sixteen), 18-2501
                                                                                 lrescuing
       prisoners), 18-2505 (escape by one charged with or convicted of a felony), 18-
       2506 (escape by one charged with or convicted of a misdemeanor), 184003
        (degrees of murder), 18-4006 (manslaughter), 18-4015 (assault with intent to
       murder), 18-4501 (kidnapping defined), 18-5001 (mayhem defined), lg-6101
       (rape defined), 18-6501 (robbery defined), 37-2732(a) (delivery, manufacture or
       possession of a conholled substance with intent to deliver) or 37-27328
       (hafficking), Idaho Code, who displryed, used, threatened, or attempted to use a
      fireartn or other deadly weapon white committing or attempting to commit the
       crime, shall be sentenced to an extended term of imprisonment. The extended
       term of imprisonment authorized in this section shatl be computed by increasing
       the maximum sentence authorized for the crime for which the-person was
       convicted by/ifieen (15) years.
                For the purposes of this section, ..fir€arrn" means any deadly weapon
      capable of ejecting or propelling one (l) or more projectiles by the action of any
      explosive or combustible propellant, and includes unloaded firearms and fireamrs
      which are inoperable but which can readily be rendered operable.
               The additional terms provided in this section shall not be imposed unless
      the fact of displaying, using, threatening, or affempting to use a firearm or other
      deadly weapon while committing the crime is separately charged in the
      information or indictment and admitted by the accused or found to be true by the
      trier of fact at the trial of the substantive crime.
               This section shall apply even in those cases where the use of a
                                                                               Jirearm is
      an element of the offense.



                                              4
I.C. $ 19-2520 (emphasis added). The underlying offense of aggravated assault is defined as
follows:
        An aggravated assault is an assault:
        (a) With a deadly weapon or instrument without intent to kill; or
        O) BV any means or force likely to produce great bodily hann.[; or]
        (c) With any vihiol, conosive aci4 or a caustic chemical of any kind.
        (d) "Deadly weapon or instrument" as used in this chapter is defined to include
        any fiiearm, though unloaded or so defective that it can not be fired.
I.C. $ l8-905 (emphasis added).
        In ruling against Passons' Rule 35 motion" the district court indicated that it was bound
by State v. Hernandez, 120 Idaho 653, 818 P.2d 768 (Ct. App. 1991), in which the district court
had imposed a sentence enhancement for use of a deadly weapon, also by use of a knife, during
an agglavated battery. Id. at 659,818 P.2dat774. Inthat case, the petitionermade a similar
argument that the enhancement violated state and federal prohibitions against double jeopardy.
This Court stated the following:
       Hemandez argues that the sentence enhancement imposed for use of a deadly
       weapon during an aggravated battery violated state and federal prohibitions
       against double jeopardy. This Court has ruled that a sentence imposed for
       conviction of a crime, then enhanced for the use of a fuearm during the crime,
       does not violate a defendant's right to be free from double jeopardy. State v.
       Galaviz,l04 Idaho 328, 658 P.2d999 (Ct. App. 1983), citing Missouri v. Hunter,
       459 U.S. 359, 103 S. Ct. 673,74L.H.2d 535 (1983). See also State v. Cootz,ll0
       Idaho 807, 718 P.2d 1245 (Ct. App. 1986). The enhancement is equally valid if a
       deadly weapon other than a firearm was used.
Hernandez, l20Idatro at659,818 P.2d at774.
       Stare decisis dictates that we follow contolling precedent rmless it is manifestly wrong,
has proven over time to be unjust or unwise, or unless overturning         it is necessary to vindicate
platn, obvious principles of law and remedy continued injustice. State v. Bradshan,, 155 Idatro
437, 439,313 P.3d 765, 767 (Ct. App. 2013). Passons argues the plain language of I.C. g 19-
2520 demonstates that the holding of Hernandez is manifestly wrong, asserting             it is direcfly
contrary   to the plain   language   of the   statute; thus, the   distict court's reliance upon it   is
misplaced.
       Passons argues that where the use       of a deadly weapon is an element of the offense, I.C.
$ 18-905, which it is, and the basis for additional punishment under a separate statute, I.C. $ 19-
2520, which it is, double jeopardy prevents the additional punishment. This is so unless, as
stated in Hunter, the legislature intended to provide for the additional punishment, even where
use   of a deadly weapon is an element of the offense.    Passons points to the last sentence   of I.C.
5 19-2520 which states: "This section shall apply even in those cases where the use of a firearm
is an element of the offense." He asserts that since the definition in the statute of "firearm" does
not include a knife and the legislature did not include "deadly weapon" in the expression of
intent in the last sentence, that clearly the legislature did not intend to provide for the additional
penalty when use of a deadly weapon is both an element of the offense and the basis for the
enhanced punishment.
       Bv virtue of the last sentence of I.C. S !9-2520, it is quite cles that the legrslature
intended to provide for additional punishment when use of a firearm is also an element of the
underlying    crime. As    described below, the legislature added "deadly weapon"            by   later
amendment to the statute and specifically identified by code section the applicable crimes. Since
the legislature did not amend the last sentence of I.C. S 19-2520 to add "deadly weapon" to
"firearm," the question is whether that necessarily means Hernandez is manifestly wrong.
Although we did not expressly address legislative intent in Herrandez, we did cite to Hunter.
The statute in Hunter, in which the United States Supreme Court held specifically authorized
cumulative sentences, didnot include the specific language, like the last sentence of I.C. $ 19-
2520, regarding the use of a firearm or deadly weapon also being an element of the underlying
offense. Hunter,459 U.S. at 368. The relevant portion of the amred criminal activity statute in
that case provided, *[t]he punishment imposed pursuant to this subsection shall be in addition to
any punishment provided by law for the crime committed by, with, or through the                   use,

assistance,   or aid of a dangerous or deadly weapon."       Id.   Therefore, language specifically
referencing the use   of a firearm or deadly weapon also being an element of the underlying
offense is not required for cumulative sentences to be permitted so long as we can otherwise
determine legislative intent.
        The sentence enhancement statute was initially enacted       n   1979. At that time it    was
titled, "Sentence For Use of A Firearm." The statute only referenced sentence enhancements for
use of a firearm and included the final sentence that is still presently in the statute providing,
"[t]his section shall apply even in those cases where the use of a firearm is an element of the
offense." In 1980, a review of the Idalro session laws shows that several amendments were made
to the statute including changing the title to "Sentence For Use of Firearm Or Deadly Weapons."
(Emphasis added.) Several of the felonies subject to additional penalties were also updated,
including the underlying crime here of aggravated assault, and the section was changed to
provide that "any person convicted of a violation of section[] 18-905 (aggravated assault
defined) . . . . who displayed, used, threatened, or attempted to use a firearm or other deadly
weapon while committing or attempting to commit the crime, shall be sentenced to an extended
term of imprisonment." I.C. $ 19-2520 (emphasis added). The session laws show that the
changes were made pursuant to House      Bill No. 659. The statement of purpose for the House Bill
indicates that   it "replaces the older felony crimes with the new ones in the statutory delineation
of what felony crimes are to be subject to additional criminal penalties when committed with the
use   of a firearm or deadly weapon." The statement of purpose firther notes it is a combination
of House Bills 433 and 588, and the statement of purpose for House Bill 588 states: "This
proposed legislation would include firearms as well as other deadly weapons." Additionally, the

house committee minutes indicate the section would strike certain offenses and add others for
which the enhancement would apply when committed with "a fireann or deadly weapon." The
above-referenced changes      to the statute indicate there was legislative intent to include    the
enhancement for the use of a deadly weapon.

         Certainly, had the legislatue, at the time of adding "deadly weapon" to the statute, also
added "deadly weapon" to the last sentence, its intent would be beyond doubt. However, Hunter

did not require such explicit expression of intent. As noted, the statute in Hunter was much more
general than I.C. $ 19-2520, which specifically identifies the crimes, by code section, to which     it
intends the enhancement to apply. Hernandez was decided after the arnendment, under the same
Hunter analysis, and in the context of double jeopardy claims. It is apparent that, despite not
specifically amending the last sentence of I.C. S 19-2520, the legislature intended it to apply to
the conviction under I.C. $ 18-905, even where that conviction requires proof of use of a deadly
weapon as an element       of the crime. We     cannot say that Hernandez is manifestly wrong.
Therefore, the I.C. S 19-2520 enhancement is equally valid for double jeopardy purposes         if   a

deadly weapon other than a firearm is used.
                                              Itr.
                                        CONCLUSION
       Idaho Code $ 19-2520 arlhorizes    I scnt€nse eobanoement for use of a deadly weapon
other than a firearm when the use of the deadly u/capon is also an element of the und€rlying
offense. DeNdal by the distict court of Passons' Rule 35 motion is   affrmd.
        Judee GUTIERREZ and Judge HUSKEY          CONCIIR
