               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 45171

STATE OF IDAHO,                                 )
                                                )    Filed: June 20, 2018
       Plaintiff-Respondent,                    )
                                                )    Karel A. Lehrman, Clerk
v.                                              )
                                                )    THIS IS AN UNPUBLISHED
MICHAEL WILSON,                                 )    OPINION AND SHALL NOT
                                                )    BE CITED AS AUTHORITY
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Second Judicial District, State of Idaho,
       Nez Perce County. Hon. Jeff M. Brudie, District Judge.

       Order denying I.C.R. 35 motion to correct an illegal sentence, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Maya P. Waldron, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

LORELLO, Judge
       Michael Wilson appeals from the district court’s order denying his I.C.R. 35 motion to
correct an illegal sentence. Wilson argues that his motion was timely and his sentence for
aggravated assault and a weapon enhancement violates the Double Jeopardy Clause of the Idaho
Constitution. For the reasons set forth below, we affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       A jury found Wilson guilty of aggravated assault, I.C. § 18-905, and burglary,
I.C. § 18-1401. The jury also found that Wilson used a firearm when he committed both crimes.
The district court sentenced Wilson to a unified term of twelve years, with a minimum period of
confinement of four years, for aggravated assault and use of a deadly weapon, I.C. § 19-2520,



                                                1
and a unified term of three years, with a minimum period of confinement of one year, for
burglary. The district court ordered the two sentences to run consecutively. Wilson appealed,
arguing that his sentences are excessive.      In an unpublished opinion, this Court affirmed
Wilson’s judgment of conviction and sentences. State v. Wilson, Docket 41883 (Ct. App.
Apr. 15, 2015). Wilson filed a pro se Rule 35 motion arguing the weapon enhancement applied
to his aggravated assault sentence is illegal because it constitutes double jeopardy under the
Idaho and United States Constitutions. 1 The district court denied Wilson’s motion, finding that it
was untimely 2 and that the double jeopardy argument was without merit. Wilson appeals.
                                                II.
                                  STANDARD OF REVIEW
       In an appeal from the denial of a Rule 35 motion to correct an illegal sentence, the
question of whether the sentence imposed is illegal is a question of law freely reviewed. State v.
Josephson, 124 Idaho 286, 287, 858 P.2d 825, 826 (Ct. App. 1993); State v. Rodriguez, 119
Idaho 895, 897, 811 P.2d 505, 507 (Ct. App. 1991).
                                               III.
                                           ANALYSIS
       Wilson argues that the district court erred by denying his Rule 35 motion to correct an
illegal sentence because the weapon enhancement applied to Wilson’s aggravated assault
sentence violated the Double Jeopardy Clause of the Idaho Constitution. Specifically, Wilson
contends the enhancement resulted in multiple punishments for the same offense. We affirm.
       Idaho Code Section 19-2520 authorizes a sentencing enhancement for use of a weapon
for certain enumerated offenses, including the two substantive offenses the jury found Wilson
guilty of--aggravated assault and burglary. 3 Section 19-2520 reads, in part:


1
       Wilson did not challenge his burglary sentence in his Rule 35 motion.
2
       Because the State concedes on appeal that Wilson’s motion was timely to the extent it
challenged the legality of his sentence, we need not address the district court’s conclusion that
the motion was untimely.
3
       As noted, Wilson did not challenge the sentencing enhancement as applied to the
burglary conviction.



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               Any person convicted of a violation of sections 18-905 (aggravated assault
       defined) . . . [and] 18-1401 (burglary defined) . . . who displayed, used,
       threatened, or attempted to use a firearm or other deadly weapon while
       committing or attempting to commit the crime, shall be sentenced to an extended
       term of imprisonment. The extended term of imprisonment authorized in this
       section shall be computed by increasing the maximum sentence authorized for the
       crime for which the person was convicted by fifteen (15) years.
               ....
               This section shall apply even in those cases where the use of a firearm is
       an element of the offense.
I.C. § 19-2520.
       The constitutional prohibition against double jeopardy provides basic protections against:
(1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the
same offense after conviction; and (3) multiple criminal punishments for the same offense.
Schiro v. Farley, 510 U.S. 222, 229 (1994); State v. McKeeth, 136 Idaho 619, 622, 38 P.3d 1275,
1278 (Ct. App. 2001). The Idaho Supreme Court has held that the sentencing enhancement
provided in I.C. § 19-2520 does not prescribe a separate offense, but only provides for the
imposition of additional punishment for the use of a firearm in the commission of certain
enumerated offenses. State v. Smith, 103 Idaho 135, 137, 654 P.2d 369, 371 (1982). As such,
I.C. § 19-2520 does not implicate double jeopardy. Smith, 103 Idaho at 137, 654 P.2d at 371.
The Idaho Supreme Court recently reaffirmed this conclusion in State v. Passons, ___ Idaho ___,
417 P.3d 240 (2018).
       Notwithstanding Smith, 4 Wilson asks this Court to afford greater double jeopardy
protections in relation to sentencing enhancements under the Idaho Constitution like the Montana
Supreme Court did in State v. Guillaume, 975 P.2d 312 (Mont. 1999). We decline to do so. The
Idaho Supreme Court has rejected arguments that the I.C. § 19-2520 sentencing enhancement
violates double jeopardy. See, e.g., Passons, ___ Idaho at 246, 417 P.3d at ___; Smith, 103
Idaho at 137, 654 P.2d at 371; Metzgar, 109 Idaho at 734-35, 710 P.2d at 644-45. When there is
controlling precedent on questions of Idaho law, the rule of stare decisis dictates that we follow it
absent a showing that the law is manifestly wrong, unjust, or unwise, or unless overruling it is
necessary to vindicate plain, obvious principles of law and to remedy continued injustice. State

4
        The Idaho Supreme Court’s opinion in Passons was not issued when Wilson filed his
brief in this case.

                                                 3
v. Grant, 154 Idaho 281, 287, 297 P.d 244, 250 (2013). We are not persuaded that the Montana
Supreme Court’s recognition of greater protections under the Montana Constitution is a reason
for this Court to disregard Idaho precedent. We hold that the district court did not err when it
denied Wilson’s Rule 35 motion.
                                                IV.
                                         CONCLUSION
       The I.C. § 19-2520 weapon enhancement applied to Wilson’s aggravated assault sentence
does not violate double jeopardy. Therefore, the district court’s order denying Wilson’s Rule 35
motion for correction of an illegal sentence is affirmed.
       Judge GUTIERREZ and Judge HUSKEY, CONCUR.




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