               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 39037

STATE OF IDAHO,                                  )
                                                 )      2012 Opinion No. 53
       Plaintiff-Respondent,                     )
                                                 )      Filed: October 25, 2012
v.                                               )
                                                 )      Stephen W. Kenyon, Clerk
JACK CAHILL STEELSMITH, JR.,                     )
                                                 )
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Patrick H. Owen, District Judge.

       Order altering sentence at conclusion of retained jurisdiction, affirmed in part
       and vacated in part. Orders relinquishing jurisdiction and denying motion to
       reduce sentence, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Jack Cahill Steelsmith, Jr. appeals from his conviction for driving under the influence of
alcohol and from certain post-judgment orders. Steelsmith asserts that the district court did not
have authority at the end of a period of retained jurisdiction to add to his sentence by imposing a
fine and court costs and suspending his driver’s license. Steelsmith also asserts that the district
court abused its discretion by relinquishing jurisdiction and by denying his Idaho Criminal
Rule 35 motion to reduce his sentence. We affirm in part and reverse in part.
                                                I.
                                        BACKGROUND
       Steelsmith pleaded guilty to felony driving under the influence of alcohol, Idaho Code
§§ 18-8004, 18-8005(6). The district court sentenced him to a unified term of imprisonment of



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ten years with two years fixed, ordered restitution in the amount of $310 to reimburse the State
for the costs of a blood draw and lab fees, retained jurisdiction for 365 days pursuant to I.C.
§ 19-2601(4), and entered a judgment to that effect. At the sentencing hearing, the district court
indicated that it would “defer imposition of costs, fines and other assessments,” and “defer
deciding on a driver’s license suspension” until a review hearing to be held at the end of the
period of retained jurisdiction.   During the period of retained jurisdiction, Steelsmith was
enrolled in programming to address his alcohol abuse, but was discharged because of poor
performance. At the jurisdictional review hearing, the district court declined to place Steelsmith
on probation, but did reduce his sentence sua sponte to a unified term of seven years with two
years fixed. The district court also suspended Steelsmith’s driving privileges for a period of
three years pursuant to I.C. § 18-8005(6)(d); imposed a fine of $3,000 pursuant to I.C. § 18-
8005(6); and ordered Steelsmith to pay fines, costs, and fees totaling $520.50 pursuant to
I.C. §§ 18-8010, 19-854(c), 31-3201(3), (5), 31-3201A(2), 31-3201B, 31-3201H(1), 32-1410,
72-1025, and 72-1105. The court then relinquished jurisdiction. Steelsmith subsequently filed a
motion to reduce his sentence, which the district court denied. Steelsmith appeals, asserting that
the district court lacked jurisdiction to impose fines, costs, and a driver’s license suspension at
the jurisdictional review hearing. He also challenges the district court’s decision to relinquish
jurisdiction and the denial of his Rule 35 motion.
                                                II.
                                           ANALYSIS
A.     Sentence Modification
       The first question presented is whether the district court could lawfully impose a fine,
court costs, and suspension of Steelsmith’s driving privileges at the end of the retained
jurisdiction period, and thereby increase his sentence, months after his sentence of imprisonment
had been imposed and a judgment of conviction entered.
       We begin by noting that Idaho statutes and rules contemplate that a defendant’s sentence
will be encompassed within the initial judgment of conviction. For example, I.C. § 19-2513
provides that “[w]henever any person is convicted of having committed a felony,” the court shall
impose a sentence, whether that be a sentence of imprisonment or a suspended or commuted
sentence or probation, unless the court withholds judgment as it is authorized to do under I.C.




                                                2
§ 19-2601(3). 1 Likewise, Idaho Criminal Rule 33(b) provides that “[t]he judgment of conviction
shall set forth the plea, the verdict or findings, and the adjudication and sentence.”
       Idaho appellate courts have long held that once a valid sentence has been put into
execution, the trial court lacks jurisdiction to thereafter amend or modify the sentence unless a
rule or statute authorizes such action. 2 State v. McGonigal, 122 Idaho 939, 940, 842 P.2d 275,
276 (1992); State v. Johnson, 101 Idaho 581, 585, 618 P.2d 759, 763 (1980); McFarland v. Hunt,
79 Idaho 262, 266, 313 P.2d 1076, 1078 (1957); State v. Williams, 126 Idaho 39, 43, 878 P.2d
213, 217 (Ct. App. 1994). A sentence is executed when the defendant is transferred to the
custody of the Board of Correction. McGonigal, 122 Idaho at 940, 842 P.2d at 276; Johnson,
101 Idaho at 585, 618 P.2d at 763; Williams, 126 Idaho at 43, 878 P.2d at 217.
       The State asserts, however, that Steelsmith’s sentence was not executed until the district
court relinquished jurisdiction, months after the sentencing hearing, and therefore the court
continued to possess jurisdiction to enhance the sentence throughout the retained jurisdiction
term. The statute authorizing a trial court to retain jurisdiction after sentencing, I.C. § 19-
2601(4), provides that following a conviction the district court may:
               Suspend the execution of the judgment at any time during the first three
       hundred sixty-five (365) days of a sentence to the custody of the state board of
       correction. The court shall retain jurisdiction over the prisoner for a period of up
       to the first three hundred sixty-five (365) days . . . . The prisoner will remain
       committed to the board of correction if not affirmatively placed on probation by
       the court.



1
       Idaho Code § 19-2513 states in part:
               Whenever any person is convicted of having committed a felony, the court
       shall, unless it shall commute the sentence, suspend or withhold judgment and
       sentence or grant probation, as provided in chapter 26, title 19, Idaho Code, or
       unless it shall impose the death sentence as provided by law, sentence such
       offender to the custody of the state board of correction.
2
        We have previously explained that a precise use of the term “jurisdiction” refers only to
either personal jurisdiction over the parties or subject matter jurisdiction, but that the term is
often used more loosely to refer simply to a court’s authority to take a certain action or grant a
certain type of relief. State v. Armstrong, 146 Idaho 372, 375, 195 P.3d 731, 734 (Ct. App.
2008). For purposes of this appeal, it does not matter whether the district court’s ability to
modify a sentence is a true issue of jurisdiction or a matter of authority. In either case, once a
valid sentence has been executed, a district court may not modify it unless a rule or statute so
authorizes.

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In interpreting this statute, we exercise free review. State v. Reyes, 139 Idaho 502, 505, 80 P.3d
1103, 1106 (Ct. App. 2003). Where the language of a statute is plain and unambiguous, this
Court must give effect to the statute as written, without engaging in statutory construction. State
v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v. Escobar, 134 Idaho 387,
389, 3 P.3d 65, 67 (Ct. App. 2000). The language of the statute is to be given its plain, obvious,
and rational meaning. Burnight, 132 Idaho at 659, 978 P.2d at 219. If the language is clear and
unambiguous, there is no occasion for the court to resort to legislative history or rules of
statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d at 67. When this Court must engage
in statutory construction because an ambiguity exists, it has the duty to ascertain the legislative
intent and give effect to that intent. State v. Beard, 135 Idaho 641, 646, 22 P.3d 116, 121 (Ct.
App. 2001). To ascertain such intent, not only must the literal words of the statute be examined,
but also the context of those words, the public policy behind the statute, and its legislative
history.
       Contrary to the State’s argument, by its plain language, I.C. § 19-2601(4) does not
provide that execution of a sentence is postponed until the conclusion of the retained jurisdiction
period. Rather, it allows the court to suspend the execution of the judgment after that execution
has begun, at any point “during the first three hundred sixty-five (365) days of a sentence to the
custody of the state board of correction.” That is, a sentence is in execution while a defendant is
serving the sentence in the custody of the Board of Correction during the period of retained
jurisdiction. The sentence remains in execution unless during the retained jurisdiction period,
the court takes affirmative steps to suspend the sentence and place the defendant on probation.
See Williams, 126 Idaho at 44, 878 P.2d at 218 (stating that a court may “suspend further
execution of the judgment pursuant to Section 19-2601(4)” (emphasis added)).
       The State relies upon language in State v. Ditmars, 98 Idaho 472, 473, 567 P.2d 17, 18
(1977), and State v. Salsgiver, 112 Idaho 933, 934, 736 P.2d 1387, 1388 (Ct. App. 1987), that
implies that execution of a sentence is postponed until a court relinquishes jurisdiction under I.C.
§ 19-2601(4). However, the language upon which the State relies is dicta. The issues addressed
in Ditmars and Salsgiver concerned whether a sentence is imposed when it is initially
pronounced or when the court relinquishes jurisdiction, not whether the sentence is executed at
that time. As noted above, in McGonigal and Williams, which were decided after Ditmars and
Salsgiver, Idaho appellate courts held that a sentence is executed when the defendant has been


                                                 4
placed in the custody of the Board of Correction. Therefore, notwithstanding any dicta in
Ditmars or Salsgiver, we hold that when the district court retains jurisdiction under Section 19-
2601(4), the sentence is executed upon the transfer of the defendant to the Board of Correction,
even though that custody is subject to possible subsequent suspension of the balance of the
sentence. It follows that the district court was without power to increase Steelsmith’s sentence
after his transfer of custody to the Board of Correction unless a statute or rule authorized the
court to do so.
       The district court here was plainly of the view that Section 19-2601(4) itself authorized
the court to increase Steelsmith’s sentence at the jurisdictional review hearing. Thus, we are
presented with the question whether this statute broadly extends a court’s jurisdiction for all
purposes, or whether it authorizes the sentencing court only to suspend the defendant’s sentence
and to place the defendant on probation during the period in which jurisdiction is retained.
       The primary purpose of the statute is to enable the trial court to obtain additional
information regarding the defendant’s rehabilitative potential and suitability for probation. State
v. Petersen, 149 Idaho 808, 812, 241 P.3d 981, 985 (Ct. App. 2010); State v. Lee, 117 Idaho 203,
205, 786 P.2d 594, 596 (Ct. App. 1990); State v. Toohill, 103 Idaho 565, 567, 650 P.2d 707, 709
(Ct. App. 1982). The only action that the statute authorizes the court to take during the period of
retained jurisdiction is to “suspend the execution of the judgment and place the defendant on
probation.” We therefore conclude that when a court retains jurisdiction under I.C. § 19-
2601(4), the extension of “jurisdiction” is limited to jurisdiction for the court to suspend the
sentence of imprisonment and impose terms of probation. The statute did not authorize the court
here to add fines, costs, and a driver’s license suspension to Steelsmith’s judgment of conviction
after the judgment was entered and executed.
       We must also consider, however, the effect of Idaho Criminal Rule 35(a), which
authorizes a sentencing court to “correct a sentence that is illegal from the face of the record at
any time.” 3 If any of the additions to Steelsmith’s sentence made by the district court at the end
of the retained jurisdiction period were necessary to correct a sentence that was illegal, those



3
        Idaho Criminal Rule 35 also permits the trial court to reduce a sentence within 120 days
after the filing of the judgment of conviction or within 120 days after the court releases retained
jurisdiction. That provision of the rule has no application here because the modifications made
by the court to Steelsmith’s sentence did not reduce it but, rather, enhanced it.

                                                 5
alterations were within the court’s authority under I.C.R. 35(a). We conclude that the mandatory
portion of the license suspension and the mandatory portion of the fines added by the district
court fall within this Rule 35(a) authority because their prior absence from Steelsmith’s sentence
made the sentence illegal.
        For persons who, like Steelsmith, have been convicted of driving under the influence
pursuant to I.C. §§ 18-8004 and 18-8005(6), the latter subsection describes the applicable
punishment. Section 18-8005(6)(d) specifies that the convicted person:
                Shall have his driving privileges suspended by the court for a mandatory
        minimum period of one (1) year after release from imprisonment, and may have
        his driving privileges suspended by the court for not to exceed five (5) years after
        release from imprisonment, during which time he shall have absolutely no driving
        privileges of any kind.

I.C. § 18-8005(6)(d). A suspension of driving privileges under this section is mandatory, and
therefore Steelsmith’s original sentence was illegal to the extent that it did not include a license
suspension. However, only a one-year suspension is made mandatory by Section 18-8005(6)(d);
any suspension of driving privileges beyond the one-year minimum is discretionary. Because
Rule 35(a) permits a court to increase a sentence only insofar as necessary to correct an
illegality, see State v Mendenhall, 106 Idaho 388, 394, 679 P.2d 665, 671 (Ct. App. 1984), it did
not authorize a suspension of Steelsmith’s license beyond the one-year mandatory minimum
term.
        Likewise, a part of the fines imposed at the review hearing were not mandatory and,
therefore, could not properly be added after Steelsmith’s original sentence was imposed and
executed. Section 18-8005(6)(b) permits, but does not require, a fine of up to $5,000. Because
this fine is not a mandatory component of the sentence under that section, the district court was
not authorized to add the $3,000 fine to Steelsmith’s sentence under Rule 35(a), and that fine
must be vacated. However, fines were mandatory under three other sections. Idaho Code § 18-
8010 provides, “Every person who is convicted, found guilty, pleads guilty or receives a
withheld judgment for violating the provisions of this chapter shall be required to pay an
additional fifteen dollars ($15.00) in addition to any other fine, penalty or costs the court may
assess.” Similarly, Idaho Code § 72-1025(1) specifies that in addition to any other fine which
may be imposed upon each person found guilty of criminal activity, the court shall impose “a
fine or reimbursement of not less than seventy-five dollars ($75.00) per felony count,” and I.C.


                                                 6
§ 72-1105(2) requires “a fine in the amount of three dollars ($3.00) for each conviction or
finding of guilt of each felony or misdemeanor count.” 4 Steelsmith’s original sentence was
illegal to the extent that it did not include these three mandatory fines totaling ninety-three
dollars. Consequently, the post-judgment addition of these fines was within the district court’s
authority under I.C.R. 35(a).
       The district court also added certain costs and fees to Steelsmith’s judgment at the review
hearing. These were not authorized by I.C.R. 35(a) because, although some of these sums are
mandatory unless waived due to indigency, e.g., I.C. § 31-3201B, costs and fees are not a part of
the defendant’s sentence, for they do not constitute punishment for the offense. They are more in
the nature of fees used to finance the courts and other state and local government operations.
Because costs and fees are not part of a defendant’s sentence, the district court was not
authorized to add them by I.C.R. 35(a), and we have not been directed to any other statute or rule
that authorizes the post-judgment addition of costs and fees in a criminal case. Therefore, the
costs and fees that were imposed pursuant to I.C. §§ 19-854(c), 31-3201(3), (5), 31-3201A(2),
31-3201B, 31-3201H(1), and 32-1410 must be vacated.
B.     Double Jeopardy
       Steelsmith also asserts that the modifications of his sentence violated constitutional
prohibitions against double jeopardy. Therefore, we must consider whether the correction of
Steelsmith’s original sentence to include a one-year driver’s license suspension would subject
him to double jeopardy. This issue does not detain us long, for it is “well established that a
defendant’s constitutional protection against double jeopardy is not infringed by a corrected
sentence which carries a heavier penalty than a previously imposed, illegal sentence.”
Mendenhall, 106 Idaho at 395, 679 P.2d at 672. See also Bozza v. United States, 330 U.S. 160
(1947) (holding that the imposition of a mandatory fine that had been inadvertently omitted from
the original sentence “did not twice put petitioner in jeopardy for the same offense”).
Accordingly, because the additions of a license suspension and mandatory fines were necessary
to correct an illegality in Steelsmith’s sentence, those additions did not violate a constitutional
prohibition against double jeopardy.


4
       The fines mandated by two of these subsections may be waived when the defendant is
indigent at the time of sentencing and shows good cause for inability to pay. I.C. §§ 72-1025(1),
72-1105(2). Steelsmith has not asserted that he is indigent.

                                                7
C.     Relinquishment of Jurisdiction
       Steelsmith next asserts that the district court abused its discretion when it relinquished
jurisdiction instead of placing him on probation. The purpose of retaining jurisdiction after
imposing a sentence is to afford the trial court additional time for evaluation of the defendant’s
rehabilitation potential and suitability for probation. E.g., Toohill, 103 Idaho at 567, 650 P.2d at
709.   The decision to place a defendant on probation or whether, instead, to relinquish
jurisdiction over the defendant and order execution of the remainder of the sentence is a matter
within the sound discretion of the district court and will not be overturned on appeal absent an
abuse of that discretion. State v. Hood, 102 Idaho 711, 712, 639 P.2d 9, 10 (1981); Lee, 117
Idaho at 205-06, 786 P.2d at 596-97.
       Steelsmith asserts that probation was appropriate because he expressed remorse and
accepted responsibility for his acts, and because he was “an eager participant” in his classes
during the period of retained jurisdiction. However, Steelsmith did not complete the alcohol-
abuse treatment program during that time, and both the presentence investigation report (PSI)
and an addendum (APSI) prepared at the conclusion of the retained jurisdiction period
recommended incarceration due to Steelsmith’s failure to adequately take responsibility. The
PSI reported that Steelsmith “minimized his alcohol use and is in denial about how extensive his
alcoholism is.” According to the APSI, Steelsmith remained a high risk for reoffending because
he would not take responsibility for his behavior or the steps necessary to correct it. Steelsmith
also asserts that probation was appropriate because this was his first felony conviction, and that
he should therefore be given a more lenient punishment than a habitual offender. However, the
record indicates that Steelsmith has a lengthy record of misdemeanor convictions including at
least six prior DUI convictions. Neither Steelsmith’s participation level in his treatment program
nor his prior criminal record weigh in favor of probation.
       The district court was justifiably concerned with the need to protect society. Results of a
blood draw taken following Steelsmith’s arrest show his blood alcohol concentration was nearly
three times the legal limit. Steelsmith has a long history of driving under the influence and
appeared unwilling address his alcohol abuse. Therefore, the court’s decision to relinquish
jurisdiction was not an abuse of discretion.




                                                 8
D.     Rule 35 Sentence Reduction
       Finally, Steelsmith asserts that the district court abused its discretion by denying his
motion to reduce his sentence. A motion for reduction of sentence under I.C.R. 35 is essentially
a plea for leniency, addressed to the sound discretion of the court. State v. Knighton, 143 Idaho
318, 319, 144 P.3d 23, 24 (2006); State v. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App.
1989). In presenting a Rule 35 motion, the defendant must show that the sentence is excessive in
light of new or additional information subsequently provided to the district court in support of
the motion. State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007). In conducting our
review of the grant or denial of a Rule 35 motion, we consider the entire record and apply the
same criteria used for determining the reasonableness of the original sentence. State v. Forde,
113 Idaho 21, 22, 740 P.2d 63, 64 (Ct. App. 1987); State v. Lopez, 106 Idaho 447, 449-51, 680
P.2d 869, 871-73 (Ct. App. 1984).
       Steelsmith was originally sentenced to a unified term of imprisonment of ten years with
two years fixed.     Following a period of retained jurisdiction, the district court reduced
Steelsmith’s sentence sua sponte to a unified term of seven years with two years fixed.
Steelsmith subsequently filed a motion to further reduce his sentence pursuant to I.C.R. 35. In
support of the motion, Steelsmith provided letters of support from family members and various
documents indicating that he was making progress while incarcerated.             The district court
determined that this information did not warrant a reduction of sentence. After review of the
record, we conclude that Steelsmith’s sentence is reasonable and the district court did not abuse
its discretion in denying his Rule 35 motion.
                                                III.
                                         CONCLUSION
       The fines imposed on Steelsmith pursuant to I.C. §§ 18-8010, 72-1025(1), and 72-
1105(2), totaling ninety-three dollars, are affirmed. We vacate all other fines, costs, fees, and the
three-year suspension of Steelsmith’s driver’s license, and remand with instructions to the
district court to amend Steelsmith’s judgment of conviction to suspend his driving privileges for
one year from his release from imprisonment.            The district court’s orders relinquishing
jurisdiction and denying Steelsmith’s motion for a second reduction of his sentence are affirmed.
       Chief Judge GRATTON and Judge GUTIERREZ CONCUR.




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