               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 42185

STATE OF IDAHO,                                 )     2014 Unpublished Opinion No. 842
                                                )
       Plaintiff-Respondent,                    )     Filed: December 3, 2014
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
DUB D. TUNSTALL,                                )     THIS IS AN UNPUBLISHED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. Randy J. Stoker, District Judge.

       Order denying I.C.R. 35 motion for correction of an illegal sentence, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

                         Before LANSING, Judge; GRATTON, Judge;
                                  and MELANSON, Judge


PER CURIAM

       In 2004, Dub D. Tunstall entered an Alford 1 plea of guilty to the charge of rape, and the
district court imposed a unified sentence of twenty-five years with eighteen years determinate.
Tunstall timely appealed and timely filed an Idaho Criminal Rule 35 motion for reduction of
sentence, which the district court denied. This Court affirmed his sentence and the denial of his
Rule 35 motion in State v. Tunstall, Docket No. 31271 (Ct. App. Oct. 26, 2005) (unpublished).
In 2014, Tunstall filed a Rule 35 motion for correction of an illegal sentence, which was denied


1
       See North Carolina v. Alford, 400 U.S. 25 (1970).



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by the district court. “Mindful of the plain language of the applicable statutes,” Tunstall asserts
that the determinate portion of his sentence is illegal because Idaho Code §§ 18-6104 and 19-
2513 do not afford the district court the discretion to impose a determinate sentence for rape
which exceeds one year.
       Tunstall’s argument is without merit. Idaho Code §§ 18-107 and 19-2513 grant trial
courts discretion in imposing the fixed and indeterminate portions of a sentence. Section 18-107
specifies:
               Whenever, in this code, the punishment for a crime is left undetermined
       between certain limits, the punishment to be inflicted in a particular case, must be
       determined by the court authorized to pass sentence within such limits as may be
       prescribed by this code.

Section 19-2513 states in part:
       The court shall specify a minimum period of confinement and may specify a
       subsequent indeterminate period of custody. The court shall set forth in its
       judgment and sentence the minimum period of confinement and the subsequent
       indeterminate period, if any, provided, that the aggregate sentence shall not
       exceed the maximum provided by law. During a minimum term of confinement,
       the offender shall not be eligible for parole or discharge or credit or reduction of
       sentence for good conduct except for meritorious service except as provided in
       section 20-223(7), Idaho Code. The offender may be considered for parole or
       discharge at any time during the indeterminate period of the sentence and as
       provided in section 20-223(7), Idaho Code.

       The sentence limits for rape are set by I.C. § 18-6104, which states that “rape is
punishable by imprisonment in the state prison not less than one (1) year, and the imprisonment
may be extended to life . . . .” Thus, Section 18-6104 set the outer limits of the permissible
sentence for rape (one year to life), Section 18-107 gave the court authority to impose a sentence
anywhere within those outer limits, and Section 19-2513 conferred discretion to determine what
portion (or all) of the sentence would be determinate or indeterminate. Consistent with that
discretion, the district court may impose a determinate sentence of eighteen years, as it is within
the limits provided. Accordingly, a determinate term of eighteen years for rape is not illegal.
       Tunstall argues that Idaho Code § 19-2513 limits the discretion of the sentencing court
when a crime carries a mandatory minimum sentence. The relevant portion of I.C. § 19-2513(2)
states that: “If the offense carries a mandatory minimum penalty as provided by statute, the
court shall specify a minimum period of confinement consistent with such statute.” Tunstall



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argues that we should interpret this language to mean that the court may impose any
indeterminate sentence otherwise authorized, but the fixed portion of the sentence may not
exceed the minimum sentence stated in the statute. Because I.C. § 18-6104 authorizes a sentence
of “imprisonment in the state prison not less than one (1) year . . . to life,” Tunstall contends that
his fixed term may not be more than one year.
       Tunstall’s argument distorts the meaning of the statute. In substance, he contends that the
one-year minimum sentence authorized by the statute is instead a one-year maximum fixed term.
The statute actually authorizes a sentence for rape of any duration between one year and life, and
I.C. § 19-2513 authorizes the court to distribute that sentence between a determinate (fixed) term
and an indeterminate term within the court’s discretion. Therefore, Tunstall’s sentence for rape
is consistent with the relevant sentencing statutes, as required by I.C. § 19-2513.
       Accordingly, the district court’s order denying Tunstall’s Rule 35 motion to correct an
illegal sentence is affirmed.




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