               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 39868

STATE OF IDAHO,                                   )     2013 Unpublished Opinion No. 393
                                                  )
       Plaintiff-Respondent,                      )     Filed: March 8, 2013
                                                  )
v.                                                )     Stephen W. Kenyon, Clerk
                                                  )
ROBERTO CUEVAS-HERNANDEZ,                         )     THIS IS AN UNPUBLISHED
                                                  )     OPINION AND SHALL NOT
       Defendant-Appellant.                       )     BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. G. Richard Bevan, District Judge.

       Order denying Rule 35 motion, affirmed.

       Roberto Cuevas-Hernandez, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Roberto Cuevas-Hernandez appeals from the district court’s denial of his motion to
correct an illegal sentence. For the reasons set forth below, we affirm.
                                                 I.
                                        BACKGROUND
       In January 2003, following a jury trial, Cuevas-Hernandez was convicted of two counts
of trafficking in cocaine, Idaho Code § 37-2732B(a)(2), and two counts of trafficking in
methamphetamine, I.C. § 37-2732B(a)(4).        The district court imposed consecutive unified
sentences of fifteen years with three-year determinate terms for the counts of trafficking in
cocaine, and consecutive unified sentences of fifteen years with five-year determinate terms for
the counts of trafficking in methamphetamine, resulting in an aggregate sentence of sixty years
with a sixteen-year determinate term. This Court affirmed the judgment of conviction in State v.
Cuevas-Hernandez, 140 Idaho 373, 93 P.3d 704 (Ct. App. 2004). In 2012, Cuevas-Hernandez



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filed a motion for relief from an illegal sentence under Rule 35(a). The district court denied the
motion without a hearing, and Cuevas-Hernandez appeals.
                                                 II.
                                           ANALYSIS
       Cuevas-Hernandez first asserts that the district court erred by denying his motion without
a hearing. Idaho Criminal Rule 35(a) provides, “The court may correct a sentence that is illegal
from the face of the record at any time.” 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.
Peterson, 148 Idaho 610, 613, 226 P.3d 552, 555 (Ct. App. 2010); State v. Lee, 116 Idaho 515,
516, 777 P.2d 737, 738 (Ct. App. 1989). The Idaho Supreme Court has narrowly interpreted the
term “illegal sentence” under Rule 35 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). Because a claim that a sentence is
illegal does not involve significant questions of fact or require an evidentiary hearing, the court
did not err in this case by deciding the motion without a hearing.
       Next, Cuevas-Hernandez appears to assert that one of his sentences was illegal because
the district court was without jurisdiction to enter a conviction on that count. Generally, a
motion under Rule 35 subjects only the sentence, and not the underlying conviction, to re-
examination, and Rule 35 is not a mechanism to collaterally attack an underlying conviction.
State v. Self, 139 Idaho 718, 725, 85 P.3d 1117, 1124 (Ct. App. 2003); State v. Warren, 135
Idaho 836, 841-42, 25 P.3d 859, 864-65 (Ct. App. 2001); Housley v. State, 119 Idaho 885, 889,
811 P.2d 495, 499 (Ct. App. 1991). Other remedies, such as appeal or a petition for post-
conviction relief, are available to set aside a wrongful conviction. State v. McDonald, 130 Idaho
963, 965, 950 P.2d 1302, 1304 (Ct. App. 1997); Housley, 119 Idaho at 889, 811 P.2d at 499.
Nevertheless, in State v. Lute, 150 Idaho 837, 839-40, 252 P.3d 1255, 1257-58 (2011), the Idaho
Supreme Court held that a question of the trial court’s subject matter jurisdiction must be
considered on a Rule 35 motion challenging the legality of the sentence, and therefore we
consider Cuevas-Hernandez’s jurisdictional challenge.
       Cuevas-Hernandez asserts that the original complaint charged only three counts of
trafficking, that the complaint was improperly amended to allege four counts, and that the court
therefore lacked jurisdiction to convict him of four counts. The premise of Cuevas-Hernandez’s


                                                 2
argument is simply false. The record in this case shows that the original complaint, filed on
April 10, 2002, plainly alleged two counts of trafficking in methamphetamine and two counts of
trafficking in cocaine, for a total of four counts, all alleged to have occurred on April 9, 2002.
The amended complaint filed on May 3, 2002, likewise alleged two counts of trafficking in
methamphetamine and two counts of trafficking in cocaine, all alleged to have occurred on
April 9, 2002. Cuevas-Hernandez has not shown that the amended complaint alleged new or
different offenses. Subject matter jurisdiction is conferred upon a court by the filing of an
information, indictment, or complaint alleging that an offense was committed within the state of
Idaho. State v. Severson, 147 Idaho 694, 708, 215 P.3d 414, 428 (2009); State v. Rogers, 140
Idaho 223, 228, 91 P.3d 1127, 1132 (2004). The original complaint conferred jurisdiction on the
trial court to adjudicate four charges of trafficking. Therefore, Cuevas-Hernandez’s argument
that the district court lacked jurisdiction to enter a conviction on four counts is without merit.
       Finally, Cuevas-Hernandez asserts that his sentences are illegal because the court
misapplied his credit for time served. Cuevas-Hernandez apparently received a credit for time
served of 272 days, and now asserts that the credit should have been applied to each of his four
consecutive sentences or, in other words, that his credit should be multiplied for an aggregate
credit of 1,088 days. The Supreme Court rejected an identical claim in State v. Hoch, 102 Idaho
351, 352, 630 P.2d 143, 144 (1981). There the Court stated:
       We hold that the purpose of I.C. § 18-309[ 1] is clearly to give a person convicted
       of a crime credit for such time as he may have served prior to the actual
       sentencing upon conviction. We find no intent of the legislature that a person so
       convicted should have that credit pyramided simply because he was sentenced to
       consecutive terms for separate crimes.

Id.


       1
               Idaho Code section 18-309 provides:
               In computing the term of imprisonment, the person against whom the
       judgment was entered, shall receive credit in the judgment for any period of
       incarceration prior to entry of judgment, if such incarceration was for the offense
       or an included offense for which the judgment was entered. The remainder of the
       term commences upon the pronouncement of sentence and if thereafter, during
       such term, the defendant by any legal means is temporarily released from such
       imprisonment and subsequently returned thereto, the time during which he was at
       large must not be computed as part of such term.


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       Cuevas-Hernandez has not demonstrated that his sentence is illegal. Accordingly, the
district court’s order denying Cuevas-Hernandez’s motion to correct an illegal sentence is
affirmed.
       Chief Judge GUTIERREZ and Judge MELANSON CONCUR.




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