                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 44669

STATE OF IDAHO,                                )    2018 Unpublished Opinion No. 316
                                               )
       Plaintiff-Respondent,                   )    Filed: January 9, 2018
                                               )
v.                                             )    Karel A. Lehrman, Clerk
                                               )
ANTHONY REED DAILEY-SCHMIDT,                   )    THIS IS AN UNPUBLISHED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. Michael Reardon, District Judge.

       Judgment of conviction and sentence for aggravated battery, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Justin M. Curtis, Deputy
       Appellate Public Defender, Boise, for appellant.

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

GRATTON, Chief Judge
       Anthony Reed Dailey-Schmidt appeals from his judgment of conviction for aggravated
battery, a deadly weapon enhancement, and a persistent violator enhancement.
                                               I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       A jury found Dailey-Schmidt guilty of aggravated battery, Idaho Code §§ 18-903(a), 18-
907(a)(b), and use of a deadly weapon in the commission of a crime, I.C. § 19-2520. Thereafter,
Dailey-Schmidt pled guilty to a persistent violator enhancement, I.C. § 19-2514. The district
court’s oral pronouncement of sentence “impose[d] an aggregate term of 35 years in custody
with the Department of Correction, the first 20 years will be fixed, the final 15 years will be
indeterminate.”    The district court issued a written judgment of conviction and order of
commitment which provided as follows:


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       COUNT I: For a minimum fixed and determinate period of confinement of
       twenty (20) years; with the fixed minimum period followed by an indeterminate
       period of custody of up to fifteen (15) years, for a total term not to exceed thirty-
       five (35) years, as enhanced by the Information Part II, to run concurrently with
       Count II.
       COUNT II: For a minimum fixed and determinate period of confinement of
       twenty (20) years; with the fixed minimum period followed by an indeterminate
       period of custody of up to fifteen (15) years, for a total term not to exceed thirty-
       five (35) years, as enhanced by the Information Part II, to run concurrently with
       Count I.
       Dailey-Schmidt timely appeals, arguing that the district court abused its discretion by
imposing a separate sentence for the enhancement and that his sentence is excessive.
                                                II.
                                           ANALYSIS
A.     Sentencing Enhancement
       Dailey-Schmidt argues that the district court erred by imposing a separate sentence for
his conviction for the use of a deadly weapon during the commission of a crime. The State
counters that Dailey-Schmidt has failed to support his argument with any relevant legal citation.
The State also argues that Dailey-Schmidt must challenge the judgment in the district court prior
to raising the claim of error on appeal.        In addition, the State contends that the oral
pronouncement of sentence controls, and the court orally imposed only a single sentence. 1
Consequently, the written judgment should be treated as a clerical error in the district court, not
on appeal. Finally, where there are concurrent sentences for the underlying crime and the
enhancement, the remedy is to modify the judgment to reflect one sentence, again, in the district
court, not on appeal.
       Sentencing enhancements are not considered to be a new offense for which there is a
separate sentence; rather, the enhancement is an additional term and is part of a single sentence
for the underlying crime and as such, there is no requirement for an independent finding of
probable cause. State v. Schall, 157 Idaho 488, 492, 337 P.3d 647, 651 (2014); see also Olsen v.
State, 156 Idaho 922, 926, 332 P.3d 834, 838 (Ct. App. 2014) (persistent violator enhancement in
I.C. § 19-2514 does not create a new crime, but permits the trial court to impose a greater
sentence for the conviction at issue). The State concedes that it is error to impose a sentence on
an enhancement separate from the underlying felony.

1
       However, the State acknowledges that the phrase “aggregate term” is ambiguous.
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       However, this issue is not properly raised in the first instance on appeal. Dailey-Schmidt
argued that an abuse of discretion standard is applicable. On the other hand, the State correctly
points out that Dailey-Schmidt’s claim is actually an attack on the legality of his sentence, which
must first be brought under Idaho Criminal Rule 35, or a clerical error which also must first be
brought in the district court under I.C.R. 36. See State v. Burnight, 132 Idaho 654, 658-59, 978
P.2d 214, 218-19 (1999) (whether a court has legally applied a sentence enhancement is an
attack on the legality of the sentence); State v. Wallace, 116 Idaho 930, 932, 782 P.2d 53, 55 (Ct.
App. 1989) (if the written order of commitment differs from the oral pronouncement, it is proper
to correct the error pursuant to Rule 36); State v. Blevins, 108 Idaho 239, 244, 697 P.2d 1253,
1258 (Ct. App. 1985) (if concurrent sentences are ordered for the underlying crime and the
enhancement, the remedy is for the district court to modify the judgment). Dailey-Schmidt
concedes that if the abuse of discretion standard is inapplicable, the matter must be first
addressed to the district court. Therefore, we affirm the judgment of the district court without
prejudice to the claim being raised before the district court by appropriate motion.
B.     Sentencing for Aggravated Battery
       Dailey-Schmidt argues the district court abused its discretion when it imposed an
excessive sentence for the aggravated battery conviction without giving proper consideration or
weight to the mitigating factors present in this case. Those factors include Dailey-Schmidt’s
familial support and his recognition of mistakes he has made throughout his life.
       An appellate review of a sentence is based on an abuse of discretion standard. State v.
Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal,
the appellant has the burden to show that it is unreasonable and, thus, a clear abuse of discretion.
State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such
an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice,
103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it
appears at the time of sentencing that confinement is necessary to accomplish the primary
objective of protecting society and to achieve any or all of the related goals of deterrence,
rehabilitation, or retribution applicable to a given case. State v. Toohill, 103 Idaho 565, 568, 650
P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed
an excessively harsh sentence, we conduct an independent review of the record, having regard
for the nature of the offense, the character of the offender, and the protection of the public

                                                 3
interest.   State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). When
reviewing the length of a sentence, we consider the defendant’s entire sentence. State v. Oliver,
144 Idaho 722, 726, 170 P.3d 387, 391 (2007).
        Applying these standards and having reviewed the record in this case, we cannot say that
the district court abused its discretion. The district court emphasized its concern with Dailey-
Schmidt’s extensive criminal history and his continued affiliation as a gang member. The
district court also expressed concern that in the current case, Dailey-Schmidt executed “a
malicious, premeditated, vicious, and nearly lethal attack on [the victim’s] life.” The district
court further observed that Dailey-Schmidt is “someone that society has a right to be afraid of”
and that the sentence “addresses that fear.” The court’s sentence clearly demonstrates its focus
on the primary objectives of deterrence and protecting society and is not an abuse of discretion.
Accordingly, Dailey-Schmidt’s sentence for the aggravated battery conviction is affirmed.
                                                III.
                                         CONCLUSION
        Dailey-Schmidt failed to raise the legality of his sentence in the district court. Dailey-
Schmidt’s judgment of conviction and sentence for aggravated battery is affirmed without
prejudice to the claim being raised in the district court by appropriate motion.
        Judge HUSKEY and Judge LORELLO CONCUR.




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