                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                        Docket No. 43140

STATE OF IDAHO,                         )
                                        )
                                                               Boise, January 2016 Term
     Plaintiff-Respondent,              )
                                        )
                                                               2016 Opinion No. 15
v.                                      )
                                        )
                                                               Filed: February 26, 2016
ARTHUR GENE SCHMIERER,                  )
                                        )
                                                               Stephen W. Kenyon, Clerk
     Defendant-Appellant.               )
_______________________________________ )

       Appeal from the District Court of the Third Judicial District of the State of Idaho, Canyon
       County. Hon. George A. Southworth, District Judge.

       The district court’s order denying the Rule 35 motion is affirmed.

       Sara B. Thomas, State Appellate Public Defender, Boise, for appellant. Sally J. Cooley
       argued.

       Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. John C.
       McKinney argued.

                                    _____________________
J. JONES, Chief Justice
       Appellant, Arthur Schmierer, filed a motion under Idaho Criminal Rule 35 to correct an
illegal sentence. In the underlying action, Schmierer had pled guilty to an amended superseding
indictment that charged him with two counts of enticing children over the internet. Schmierer
contends that the prosecutor improperly amended the indictment without resubmitting the matter
to the grand jury, thereby depriving the district court of subject matter jurisdiction to convict him
on the second enticement count. The district court denied Schmierer’s motion, concluding that
Schmierer had waived any deficiencies in the charging document when he pled guilty. Schmierer
appealed. The Idaho Court of Appeals reversed the district court’s order and vacated Schmierer’s
conviction on the second enticement count. This Court granted the State’s petition for review.
                                         I.
                          FACTUAL AND PROCEDURAL HISTORY
       In January 2009, over the course of three days, Schmierer engaged in sexually explicit


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conversations online with an individual who he believed was a thirteen-year-old girl, but was
actually a detective. Schmierer made plans to meet with the individual to engage in sexual
contact and was arrested when he arrived at the designated meeting place. The above facts were
presented to a grand jury, which issued a Superseding Indictment on January 21, 2009.1 The
Superseding Indictment charged Schmierer with one count of enticing children over the internet
under Idaho Code section 18-1509A (Count I) and one count of attempted lewd conduct with a
minor under the age of sixteen under Idaho Code sections 18-306 and 18-1508 (Count II).
           Based on plea negotiations with Schmierer, the State filed an Amended Superseding
Indictment on May 8, 2009. This indictment charged Schmierer with the same enticement charge
in Count I, but changed Count II from attempted lewd conduct to a second enticement charge.
The new enticement charge was based on sexually explicit conversations Schmierer had online
between November 2008 and January 2009 with another individual Schmierer believed to be a
thirteen-year-old girl but who was actually a detective based in Utah. The State did not resubmit
the matter to the grand jury to amend the indictment, and the amended indictment was signed by
the prosecutor rather than the foreman of the grand jury.
           The same day the Amended Superseding Indictment was filed, Schmierer pled guilty to
both enticement counts. Schmierer agreed to waive any possible deficiencies in the charging
document. As part of the agreement, the United States Attorney’s Office agreed to refrain from
bringing federal charges against Schmierer for his actions. The parties agreed to recommend that
the appropriate sentence on each count be five years fixed, with open recommendations on the
indeterminate sentence, and for the sentences for each count to run consecutively. The district
court accepted the plea agreement and, on May 18, 2009, sentenced Schmierer to five years fixed
and five years indeterminate on each count, to be served consecutively. Schmierer is currently
incarcerated, serving time for these convictions.
           In June 2012, Schmierer filed a motion under Idaho Criminal Rule 35 to correct an illegal
sentence. Schmierer contended that his conviction on Count II of the Amended Superseding
Indictment should be overturned because the prosecutor improperly amended the indictment
without resubmitting the matter to the grand jury and, therefore, the district court lacked
jurisdiction to convict him on that count. The district court denied Schmierer’s motion,
concluding that Schmierer had waived any defects in the charging document and, therefore,

1
    The indictment superseded a criminal complaint filed on January 12, 2009.


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cannot now claim that his sentence on the Amended Superseding Indictment was illegal.
Schmierer appealed. The Idaho Court of Appeals reversed the district court’s order and vacated
the conviction and sentence on Count II. The State filed a petition for review, which this Court
granted.
                                            II.
                                      ISSUE ON APPEAL
       Whether the district court erred in denying Schmierer’s motion to correct an illegal
sentence.
                                         III.
                                   STANDARD OF REVIEW
               When reviewing a case on petition for review from the Court of Appeals
       this Court gives due consideration to the decision reached by the Court of
       Appeals, but directly reviews the decision of the trial court. Idaho Criminal Rule
       35 allows a trial court to correct an illegal sentence at any time. As a general
       matter, it is a question of law as to whether a sentence is illegal or was imposed in
       an illegal fashion, and this Court exercises free review over questions of law.
       Jurisdiction is likewise a question of law and is reviewed de novo.
State v. Lute, 150 Idaho 837, 839, 252 P.3d 1255, 1257 (2011) (citations omitted).
                                              IV.
                                           ANALYSIS
       “Article I, section 8 of the Idaho Constitution states that ‘[n]o person shall be held to
answer for any felony or criminal offense of any grade, unless on presentment or indictment of a
grand jury or on information of the public prosecutor[.]’” State v. Jones, 140 Idaho 755, 757, 101
P.3d 699, 701 (2004). “Since the indictment or information provides subject matter jurisdiction
to the court, the court’s jurisdictional power depends on the charging document being legally
sufficient to survive challenge.” Id at 758, 101 P.3d at 702. “To be legally sufficient, a charging
document must meet two requirements: it must impart jurisdiction and satisfy due process.” State
v. Severson, 147 Idaho 694, 708, 215 P.3d 414, 428 (2008).
       “The court may permit a complaint, an information or indictment to be amended at any
time before the prosecution rests if no additional or different offense is charged and if substantial
rights of the defendant are not prejudiced.” I.C.R. 7(e); see also I.C. § 19-1420. However, “[a]n
information or indictment cannot be amended so as to charge an offense other than that for which
the defendant has been held to answer.” I.C. § 19-1420. This Court has previously held that an
indictment can be amended “to allege a lesser offense that is included in the offense charged.”
State v. Flegel, 151 Idaho 525, 527, 261 P.3d 519, 521 (2011). Contrastingly, an indictment may


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not be amended to allege a different and distinct offense. State v. O’Neill, 118 Idaho 244, 249,
796 P.2d 121, 126 (1990).
       Schmierer contends that the Amended Superseding Indictment did not impart jurisdiction
over the second enticement charge because it was a distinct crime from the attempted lewd
conduct charge in Count II of the Superseding Indictment and the prosecutor did not resubmit the
matter to the grand jury to issue a new indictment. It is no surprise that Schmierer couches his
argument as a jurisdictional challenge, as this argument was not raised until Schmierer’s Rule 35
motion. This Court has previously found that an objection that an indictment did not confer
jurisdiction may be raised for the first time in a motion to correct an illegal sentence. Lute, 150
Idaho at 840, 252 P.3d at 1258. Additionally, “[i]t is well settled that a valid plea of guilty,
voluntarily and understandingly given, waives all non-jurisdictional defects and defenses.” State
v. Fowler, 105 Idaho 642, 643, 671 P.2d 1105, 1106 (Ct. App. 1983) (emphasis added).
Schmierer, therefore, also contends that the fact that he pled guilty to the Amended Superseding
Indictment should not affect the Court’s analysis because subject matter jurisdiction can never be
waived.
       The parties agree that the prosecutor amended the Superseding Indictment to change the
lewd conduct charge in Count II to a second enticement charge without resubmitting the matter
to the grand jury and that the Amended Superseding Indictment was signed by the prosecutor,
not the foreman of the grand jury. It is undisputed that the enticement charge in Count II was a
different and distinct crime from the lewd conduct charge in the Superseding Indictment. It is
also undisputed that Schmierer pled guilty to the two enticement charges in the Amended
Superseding Indictment and, in exchange, was not subjected to federal charges for his actions.
       While not raised by either party, we find it necessary to observe that the prosecutor could
have charged Schmierer with enticement by either indictment or information. Idaho Criminal
Rule 7(a) provides that “[a]ll felony offenses shall be prosecuted by indictment or information.”
In Idaho, an information is required to describe the crime charged with the same fullness as an
indictment. I.C. § 19-1303. Additionally, the provisions of the Idaho Code governing indictments
apply equally to informations. I.C. § 19-1304. However, “[a]n indictment cannot be found
without the concurrence of at least twelve (12) grand jurors. When so found it must be endorsed,
a true bill, and the endorsement must be signed by the foreman of the grand jury.” I.C. § 19-
1401. Contrastingly, an information must be endorsed by the prosecutor and cannot be filed



                                                4
“against any person for any offense until such person shall have had a preliminary examination
. . . unless such person shall waive his right to such examination.” I.C. §§ 19-1302, 19-1308
(emphasis added).
       Schmierer argues that the charging document in this case was a jurisdictionally defective
indictment because it was not issued by the grand jury or endorsed by the foreman of the grand
jury. However, after examining the circumstances of this case, the Court is left with the abiding
belief that the charging document issued was in substance an information mislabeled as an
indictment.
       Had the “Amended Superseding Indictment” been labeled “Information,” there would be
no question that it conferred jurisdiction over the second enticement charge. The charging
document was signed by the prosecutor. Although the charging document was issued without a
preliminary examination, a defendant waives his right to a preliminary examination by pleading
guilty without objection. Brown v. State, 159 Idaho 496, 497 n.2, 363 P.3d 337, 338 n.2 (2015)
(“By pleading guilty without making an objection to the lack of a commitment by a magistrate
regarding the offense alleged in the information, Mr. Brown would have waived his right to a
preliminary examination.”). Here, Schmierer pled guilty to both enticement charges without
objection.
       The fact that the charging document was entitled “true bill” rather than “information” is
best categorized as a defect in form. Idaho Code section 19-1419 provides that “[n]o indictment
is insufficient, nor can the trial, judgment, or other proceeding thereon, be affected, by reason of
any defect or imperfection in matter of form, which does not tend to the prejudice of a substantial
right of the defendant upon its merits.” This provision applies equally to informations. See I.C. §
19-1304; State v. McKeehan, 91 Idaho 808, 818, 430 P.2d 886, 896 (1967). There is no evidence
on the record supporting a finding that Schmierer was prejudiced by the mislabeling of the
charging document. Schmierer does not allege that the description of the enticement charge was
inadequate or that Schmierer was unaware of the factual basis that formed the basis of the
charge. Schmierer knowingly and voluntarily pled guilty to both enticement charges, and in
return no federal charges were brought against him.
       Where the charging document meets the substantive requirements for an information, but
is labeled an indictment, we hold that it may be treated as an information. Here, the prosecutor
could have charged Schmierer with enticement by either information or indictment. The labeling



                                                 5
of the document as an indictment is a mere defect of form and does not deprive the court of
jurisdiction over the charges unless it would tend to prejudice a substantial right of the defendant.
Here, we find that Schmierer was not prejudiced by the mislabeling of the charging document
and, therefore, we hold that the district court had jurisdiction to convict Schmierer of the second
enticement count. 2
                                                     V.
                                                 CONCLUSION
         We affirm the order of the district court denying Schmierer’s Rule 35 motion to correct
an illegal sentence.


         Justices EISMANN, BURDICK, W. JONES and HORTON CONCUR.




2
  Other cases where we have held a charging document to be jurisdictionally deficient are distinguishable from the
present case. In State v. Flegel, the defendant had been acquitted of the only charge in the indictment when the
prosecutor purportedly amended the indictment to charge him with a crime that we determined was not a lesser
included offense. 151 Idaho 525, 261 P.3d 519 (2011). There, we held that the amended indictment did not confer
subject matter jurisdiction over the new charge because it had not been issued by a grand jury. Id. at 531, 261 P.3d at
525. However, in Flegel, the defendant did not consent to the new charge or plead guilty. In that case, regardless of
whether the charging document was categorized as an indictment or information, it would not be sufficient because
no preliminary examination had been held and it was not issued by a grand jury. In State v. Lute, we held that an
indictment did not confer jurisdiction where it was issued after the term of the grand jury expired. 150 Idaho 837,
841, 252 P.3d 1255, 1259 (2011). Although the defendant had pled guilty in Lute, we found that the plea was not
effective because “there was no ‘defective’ indictment in this case, rather there was no indictment” because “the
group of citizens that issued the purported indictment was not a grand jury.” Id. However, unlike the present case,
there is no indication in Lute that the operative charging document substantively met the requirements of an
information and could have been classified as such, as it did not charge a crime under Idaho law. Id. at 840, 252 P.3d
at 1258 (citing State v. Kavajecz, 1391 Idaho 482, 483, 80 P.3d 1083, 1084 (2003)).


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