                  IN THE SUPREME COURT OF THE STATE OF IDAHO
                                 Docket No. 46094

STATE OF IDAHO,                                      )
                                                     )        Boise, November 2019 Term
     Plaintiff-Respondent,                           )
                                                     )        Opinion Filed: May 14, 2020
v.                                                   )
                                                     )        Karel A. Lehrman, Clerk
BRITIAN LEE BARR,                                    )
                                                     )
     Defendant-Appellant.                            )
                                                     )


        Appeal from the District Court of the Fourth Judicial District of the
        State of Idaho, Ada County. Samuel A. Hoagland, District Judge.

        The decision of the district court is affirmed.

        Eric D. Fredericksen, Idaho State Appellate Public Defender, Boise,
        attorney for Appellant. Kimberly A. Coster argued.

        Lawrence G. Wasden, Idaho Attorney General, Boise, attorney for
        Respondent. Kale D. Gans argued.



BEVAN, Justice
                                      I. NATURE OF THE CASE
        This case is about whether a district court has any sentencing discretion under Idaho
Code section 19-2520G, a statute which provides for a mandatory minimum sentence of fifteen
years for repeat violations of certain sex offenses. Britain Lee Barr pleaded guilty to five counts
of sexual exploitation of a child and to being a repeat sex offender. The district court sentenced
Barr to five, fifteen-year fixed sentences, to run consecutively to each other, for an aggregate
determinate term of seventy-five years, reasoning that section 19-2520G left it no discretion to
sentence Barr to anything less severe. On appeal Barr argues that the district court abused its
discretion when it failed to perceive that it had discretion to: (1) designate indeterminate and
determinate portions of the mandatory fifteen-year sentences; and (2) run the sentences
concurrently with one another rather than consecutively. Barr also claims that if the legislature
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intended section 19-2520G to deprive the court of its traditional power to decide whether to run
sentences consecutively or concurrently, the statute is unconstitutional.
       Even so, Barr never took a position below on whether the district court had discretion to
impose a lesser sentence, nor did he raise an issue over section 19-2520G’s constitutionality;
thus, Barr’s arguments were not properly preserved for appeal. We therefore affirm.

                           II. FACTUAL AND PROCEDURAL BACKGROUND
       In March 2017, detectives found hundreds of photos and videos of child pornography on
Barr’s laptop, cell phones, and computer storage devices. Barr admitted to officers he had been
downloading child pornography. Based on the recovered videos, Barr was charged by
Information with five felony counts of sexual exploitation of a child. The State also filed an
Information Part II alleging that Barr had been convicted of possessing child pornography, he
was a repeat sex offender, and thus was subject to the mandatory minimum sentence provisions
in Idaho Code section 19-2520G. The State later filed a second case charging Barr with more
counts of possession of child pornography, and the two cases were consolidated for trial.
       At a pretrial hearing the parties proffered a proposed Rule 11 plea agreement to the
district court. Both parties agreed, in exchange for Barr’s guilty plea to the initial five counts
filed against him, the State would dismiss the remaining charges in the latter case. The parties
also agreed to a unified sentence of fifty years, with twenty years fixed. The district court raised
concerns about the plea agreement, mainly regarding whether the submitted sentence was illegal
because it called for the sentences to run concurrently, rather than consecutively, as required
under section 19-2520G. The parties both agreed there was some case law that referred to how
the sentences for each count needed to run consecutively, but even so, they believed that their
proposed sentence was not an illegal one. The district court declined to make any findings or
determinations at that point, but continued the hearing for three weeks to explore whether the
parties were proposing an illegal sentence as it had been described.
       Barr eventually rejected the twenty-year fixed sentence in the proposed Rule 11 plea
agreement and the case went to trial. On the second day of trial Barr changed his mind and his
counsel informed the court that Barr wanted to plead guilty to five counts of sexual exploitation
of a child and the repeat sex offender enhancement, which required “a minimum mandatory 15
years for a total of 75 years minimum for all five counts.” In exchange the State agreed to
dismiss the second case.
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         After hearing the terms of the plea bargain the district court emphasized that if Barr chose
to proceed and plead guilty, each count required a mandatory minimum sentence of fifteen years,
to be served consecutively, for a total sentence of seventy-five years fixed. The judge explained
that he “virtually would have no discretion in the final sentence because of the Information Part
Two” and he lacked the ability to “reduce the sentence or make it run concurrently or anything
like that.” Barr stated that he understood.
         With the consent of both parties, the district court dispensed with ordering an updated
presentence investigation report, a psychosexual evaluation, mental health evaluation, or any
other evaluation, again stating its belief that it had no sentencing discretion here, and proceeded
directly to sentencing. The State requested the seventy-five years spelled out by Idaho Code
section 19-2520G. Defense counsel did not object and recognized Barr was “going to prison for
essentially the rest of his life” but expressed how remorseful Barr was, stating “not having the
ability to argue for less or anything like that, I think he just wanted that out in the open.”
         Ultimately, the district court sentenced Barr to five fifteen-year fixed sentences to be
served consecutively, leading to a final sentence of seventy-five years fixed imprisonment. The
district court stated:
                  The sentence in this case – I do not think it would be possible for me to
         fashion a sentence that was not as severe if I had the discretion to do so, but I
         don’t have that discretion and I can only assume by virtue that the law that we
         have is based upon a fundamental finding that Mr. Barr and other defendants in
         similar circumstance are a danger to the community and must be imprisoned for
         the safety of the community and/or to serve the objectives of punishment or
         retribution. And finally to whatever effect it might have to that general deterrence;
         that is, sending a message to others that this is what could happen.
Barr signed a guilty plea advisory form acknowledging that he was subject to a fifteen-year
mandatory minimum sentence on each count for seventy-five years determinate, and the district
court entered a judgment of conviction to that effect. Barr timely appealed.

                                     III. STANDARD OF REVIEW
         Sentencing decisions are reviewed under the abuse of discretion standard. State v.
McIntosh, 160 Idaho 1, 8, 368 P.3d 621, 628 (2016). When this Court reviews an alleged abuse
of discretion, the inquiry requires consideration of four essentials to determine whether the trial
court:


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       (1) correctly perceived the issue as one of discretion; (2) acted within the outer
       boundaries of its discretion; (3) acted consistently with the legal standards
       applicable to the specific choices available to it; and (4) reached its decision by
       the exercise of reason.
State v. Le Veque, 164 Idaho 110, 113, 426 P.3d 461, 464 (2018) (quoting Lunneborg v. My Fun
Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)). When a district court does “not recognize
the scope of its discretion,” Idaho’s appellate courts have “remand[ed] to allow the district court
to reconsider the motion to correct the illegal sentences with knowledge of the full scope of its
discretion. State v. Villavicencio, 159 Idaho 430, 437, 362 P.3d 1, 8 (Ct. App. 2015).
       This Court exercises free review over statutory interpretation because it is a question of
law. State v. Lantis, 165 Idaho 427, 429, 447 P.3d 875, 877 (2019) (citing State v. Dunlap, 155
Idaho 345, 361, 313 P.3d 1, 17 (2013)).
                                           IV. ANALYSIS
                     Barr Failed To Preserve His Arguments For Appeal.
       On appeal, Barr argues that the district court misinterpreted Idaho Code section 19-
2520G and abused its discretion by failing to perceive that it had discretion to: (1) order
indeterminate and determinate portions of Barr’s five fifteen-year sentences, and (2) run his
sentences concurrently with one another. Barr also asserts that if the legislature intended section
19-2520G(3) to deprive the court of its traditional power to determine whether to run a sentence
consecutively, then the statute is unconstitutional.
       The State counters that if any error occurred below, Barr invited it by inducing and
acquiescing in the district court’s conclusion that the five fifteen-year sentences had to be
consecutive and fixed. As a result, the State argues that Barr’s claims on appeal are estopped by
the invited error doctrine. “The invited error doctrine precludes a criminal defendant from
‘consciously’ inviting district court action and then successfully claiming those actions are
erroneous on appeal.” State v. Hall, 163 Idaho 744, 771, 419 P.3d 1042, 1069 (2018) (quoting
State v. Abdullah, 158 Idaho 386, 420, 348 P.3d 1, 35 (2015)).
       The State’s position is in the right vicinity, but ultimately misses the mark. The purpose
of the invited error doctrine is to prevent a party who caused or played an important role in
prompting a trial court to take action, from later challenging that decision on appeal. See State v.
Blake, 133 Idaho 237, 240, 985 P.2d 117, 120 (1999) (“the invited error doctrine is to prevent a
party who caused or played an important role in prompting a trial court to give or not give an

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instruction from later challenging that decision on appeal.”). A review of the record reveals that
Barr never took a position one way or the other on whether the district court had discretion to
impose a lesser sentence or run the sentences concurrently; thus, he did not urge the court to take
action, nor did he play an important role in prompting the court to give the sentence it did.
Simply acquiescing in the district court’s stated conclusion regarding the statute is not enough to
preclude Barr from asserting his challenge to the sentence based on invited error.
       That said, both before and during sentencing the district court made several comments
that it believed it lacked discretion to impose a lesser sentence, providing Barr with several
opportunities to raise any issues related to the district court’s conclusion. But, Barr never made,
nor did the district court rule on, any motion or objection about its sentencing discretion—or lack
thereof—under section 19-2520G. To have properly preserved the issue for appeal, Barr had to
take a position with respect to whether the district court had discretion to impose a lesser
sentence. To state an arguable claim on appeal, “both the issue and the party’s position on the
issue must be raised before the trial court for it to be properly preserved . . . .” State v. Gonzalez,
165 Idaho 95, 99, 439 P.3d 1267, 1271 (2019). “[A]n appellant may polish an argument made at
the district court as long as he is putting forth the same legal issue and same position on the
issue. State v. Bodenbach, 165 Idaho 577, 584, 448 P.3d 1005, 1012 (2019). Barr had an
obligation to take a legal position in order to preserve this issue for appeal. He failed to do so.
We thus hold that Barr is precluded from now arguing the district court had discretion to impose
a lesser sentence.
       Barr also argues on appeal that the judiciary has inherent, exclusive discretion to
determine whether a sentence will run consecutively or concurrently; as such, if the legislature
intended section 19-2520G(3) to deprive the court of these traditional powers by requiring
sentences be served consecutively, then this Court should conclude that the statute exceeds the
legislature’s limited constitutional authority. However, once again, Barr did not argue that
section 19-2520G is unconstitutional before the district court. In general, constitutional issues
will not be considered if raised for the first time on appeal. Roell v. Boise City, 134 Idaho 214,
216, 999 P.2d 251, 253 (2000) (citing State v. Fox, 130 Idaho 385, 387, 941 P.2d 357, 359
(1997)). “Failure to properly raise such an issue below is a waiver of the right to raise the issue
on appeal.” Id. However, “[o]n occasion we have allowed an issue that was not formally raised
below to be considered on appeal when the issue was implicitly before the lower tribunal, and
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was considered and passed on by that tribunal.” Northcutt v. Sun Valley Co., 117 Idaho 351, 357,
787 P.2d 1159, 1165 (1990) (quoting Manookian v. Blaine County, 112 Idaho 697, 700, 735 P.2d
1008, 1011 (1987)); see also State v. DuValt, 131 Idaho 550, 553, 961 P.2d 641, 644 (1998)
(citing Northcutt for the proposition that this Court has recognized that an exception to the
waiver rule exists when the issue has been ruled on by the trial court, even if not expressly raised
by the parties).
        Barr claims that his constitutional separation of powers argument is properly before us
because the issue was raised and decided by the district court during sentencing based on the
following statements the court made about mandatory minimum sentencing laws:

        Those laws are passed by the legislature to essentially usurp the court’s ability to
        impose a sentence that fits both the crime and the criminal. The legislature with a
        sweeping statute has decided that everybody convicted of the same offenses
        should be given the same punishment without allowing the judges to weigh the
        pros and cons, the benefits and detriments, the costs in all regards and in all
        respects. I personally I [sic] think that’s a violation of constitutional power of
        judges and the judicial branch of government, but I think those issues have been
        litigated and the judiciary at higher levels have concluded that mandatory
        minimum sentencing laws are not a violation of the power – separation of powers
        doctrine within our constitutions.
        While the district judge expressed his personal opinions and frustrations with mandatory
minimum sentencing laws, the issue was not before the district court; it never heard arguments
from the parties or issued a ruling on whether section 19-2520G was unconstitutional 1. Even if
these comments constituted a ruling, Barr did not raise the issue or take the position that section
19-2520G was unconstitutional. Therefore, the exception does not apply. As discussed above,
“both the issue and the party’s position on the issue must be raised before the trial court for it to
be properly preserved for appeal.” Gonzalez, 165 Idaho at 99, 439 P.3d at 1271. Thus, we will
not consider Barr’s constitutional argument on appeal.
                                               V. CONCLUSION
        Given the foregoing, the decision of the district court is affirmed.

        Chief Justice BURDICK, Justices BRODY, STEGNER and MOELLER, CONCUR.




1
  Nothing in this opinion should be construed to limit Barr’s right to challenge the legality of his sentence under
I.C.R. 35(a).
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