               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 43958

STATE OF IDAHO,                                )    2017 Unpublished Opinion No. 335
                                               )
       Plaintiff-Respondent,                   )    Filed: January 26, 2017
                                               )
v.                                             )    Stephen W. Kenyon, Clerk
                                               )
DETRICK CURTIS CONERLY,                        )    THIS IS AN UNPUBLISHED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. Samuel A. Hoagland, District Judge.

       Judgment of conviction for two counts of misappropriation of personal identifying
       information, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Andrea W. Reynolds,
       Deputy Appellate Public Defender, Boise, for appellant.

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

GUTIERREZ, Judge
       Detrick Curtis Conerly appeals from his judgment of conviction for two counts of
misappropriation of personal identifying information. Conerly specifically argues the district
court violated Conerly’s procedural due process rights when the court refused to hear Conerly’s
oral motion to dismiss for lack of subject matter jurisdiction. Conerly requests that this Court
vacate the conviction and remand with instructions for the district court to address Conerly’s
motion to dismiss. For the reasons explained below, we affirm Conerly’s convictions.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Conerly pled guilty to two counts of misappropriation of personal identifying
information. During a hearing on a motion to withdraw his guilty plea, Conerly asked the district


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court to hear an oral motion to dismiss for lack of subject matter jurisdiction. Conerly’s counsel
noted he did not “understand [Conerly’s] argument. I told him that if he wanted to pursue that
motion, he’d have to ask leave of the court and ask to proceed pro se.” The district court
indicated, “I’m not going to hear it. I told you two months ago when we set this up, that we
would hear the motion to withdraw. I’ve heard the motion to withdraw. . . . Somebody wants to
file a motion later with briefs or whatnot, I suppose they’re free to do so.” The district court
further explained the case had been “dragging around for six or seven or eight months. We’ve
been ready for sentencing for more than two months.” The district court then denied Conerly’s
motion to withdraw his guilty plea.
       Conerly was still represented by counsel at the sentencing hearing. During Conerly’s
allocution, he expressed concern about the district court’s jurisdiction: “I find it very wrong that
jurisdiction was not allowed to be challenged in this courtroom.” Conerly filed a motion to
appeal his judgment of conviction in February 2016.
       At the restitution hearing in April 2016, Conerly again raised an oral motion to dismiss
for lack of subject matter jurisdiction. The district court denied the motion to dismiss, noting
that Conerly already filed his appeal, and Idaho Appellate Rule 13 precluded it from resolving a
jurisdictional challenge while the appeal was pending. On appeal, Conerly argues the district
court violated Conerly’s procedural due process rights when the court refused to hear Conerly’s
motion for lack of subject matter jurisdiction.
                                                  II.
                                           ANALYSIS
       Conerly contends the district court’s refusal to address the motion to dismiss for lack of
subject matter jurisdiction violates Conerly’s procedural due process rights. Where a defendant
claims that his or her right to due process was violated, we defer to the trial court’s findings of
fact, if supported by substantial evidence. State v. Smith, 135 Idaho 712, 720, 23 P.3d 786, 794
(Ct. App. 2001). However, we freely review the application of constitutional principles to those
facts found. Id. It is the defendant’s burden to demonstrate facts that constitute a due process
violation. See State v. Jacobson, 150 Idaho 131, 134, 244 P.3d 630, 633 (Ct. App. 2010).
Procedural due process is not a rigid concept but, rather, it “is flexible and calls for such
procedural protections as the particular situation demands.” State v. Blair, 149 Idaho 720, 722,



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239 P.3d 825, 827 (Ct. App. 2010) (quoting Aeschliman v. State, 132 Idaho 397, 402, 973 P.2d
749, 754 (Ct. App. 1999)).
       It is fundamental to our legal system that no state shall “deprive any person of life,
liberty, or property, without due process of law.” U.S. CONST. amend. XIV § 1. The right to
procedural due process guaranteed under both the Idaho and United States Constitutions requires
that a person involved in the judicial process be given meaningful notice and a meaningful
opportunity to be heard. Blair, 149 Idaho at 722, 239 P.3d at 827.
       Before he appealed, Conerly requested that the district court hear an oral motion to
dismiss for lack of subject matter jurisdiction. In response, the district court suggested Conerly
properly file a written motion and brief. Conerly elected to not file a written motion and brief as
recommended by the district court. Idaho Criminal Rules 12(d) and 47 specifically require
motions to be submitted in writing. Therefore, the district court did not err in requiring Conerly
to properly file his motion to dismiss.
       After Conerly appealed and during the restitution hearing, he again raised the issue of
subject matter jurisdiction through an oral motion to dismiss. The district court denied the
motion because Conerly’s appeal was pending. Idaho Appellate Rule 13(c) precludes a district
court from addressing and ruling upon a motion to dismiss while an appeal is pending. The
district court proceedings are stayed during the pendency of an appeal, subject to limited
exceptions under Rule 13(c). A motion to dismiss for lack of subject matter jurisdiction does not
fall within the list of limited exceptions. Accordingly, the district court did not err in denying
Conerly’s motion to dismiss. Thus, the district court did not violate Conerly’s procedural due
process rights.
       Moreover, even if the district court denied Conerly’s right to procedural due process,
such error is not reversible. Error is not reversible unless it is prejudicial. State v. Stoddard, 105
Idaho 169, 171, 667 P.2d 272, 274 (Ct. App. 1983). With limited exceptions, even constitutional
error is not necessarily prejudicial error. Id. Thus, we examine whether the alleged error
complained of in the present case was harmless. See State v. Lopez, 141 Idaho 575, 578, 114
P.3d 133, 136 (Ct. App. 2005). Jurisdictional challenges may be raised at any time, including for
the first time on appeal. See State v. Jones, 140 Idaho 755, 757, 101 P.3d 699, 701 (2004). But
Conerly does not raise a jurisdictional challenge on appeal. Accordingly, even if the district



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court erred, the error is harmless. In sum, Conerly has failed to show error, much less reversible
error.
                                               III.
                                        CONCLUSION
         The district court did not violate Conerly’s procedural due process rights by requiring
Conerly to file his motion in accordance with the Idaho Criminal Rules and by denying
Conerly’s motion during the pendency of his appeal. Moreover, even if the district court erred,
the error was harmless because Conerly did not raise a jurisdictional challenge on appeal. We
therefore affirm Conerly’s judgment of conviction for two counts of misappropriation of
personal identifying information.
         Chief Judge GRATTON and Judge MELANSON CONCUR.




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