                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 39180

STATE OF IDAHO,                                   )      2012 Unpublished Opinion No. 544
                                                  )
       Plaintiff-Respondent,                      )      Filed: June 28, 2012
                                                  )
v.                                                )      Stephen W. Kenyon, Clerk
                                                  )
DAVID CHARLES MITCHELL,                           )      THIS IS AN UNPUBLISHED
                                                  )      OPINION AND SHALL NOT
       Defendant-Appellant.                       )      BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Lansing L. Haynes, District Judge.

       Order denying motion for correction of sentence, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Diane M. Walker, 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; GUTIERREZ, Judge;
                                  and MELANSON, Judge

PER CURIAM
       David Charles Mitchell was charged with possession of cocaine, I.C. § 37-2732(c)(1),
and Part II of the information alleged an I.C. § 37-2739 sentence enhancement of up to twice the
sentence otherwise authorized because Mitchell had multiple prior felony drug convictions.
Mitchell entered into a plea agreement that was binding on the court, pursuant to Idaho Criminal
Rule 11(f)(1)(C), by which he agreed to a unified ten-year sentence with a three-year determinate
term. The agreement also called for the court to retain jurisdiction. Although the written plea
agreement prepared by defense counsel was drafted as an agreement to plead guilty to a first
offense possession of a controlled substance, it was altered by interlineation at the plea hearing to
provide that Mitchell was pleading guilty to the possession charge as a second or subsequent


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offense. The district court explained to Mitchell that the charge of possession of cocaine as a
second offense carried the maximum penalty of fourteen years in the state penitentiary, and
Mitchell indicated that he understood this maximum penalty. During the course of the plea
hearing, the following colloquy occurred between the court and Mitchell:
       THE COURT: Then, Mr. Mitchell, to the charge of possession of cocaine and
       understanding that this also carries a Part II, meaning, that this is at least a second
       offense drug felony for you, how do you plead?
       THE DEFENDANT: Guilty, sir.

       The district court accepted the plea and imposed the agreed-upon sentence of ten years
with three years determinate, with the court retaining jurisdiction. At the conclusion of the
retained jurisdiction term, the district court suspended Mitchell’s sentence and placed him on
probation. Mitchell subsequently violated the terms of his probation, however, and the court
revoked probation and ordered execution of the underlying sentence.
       Nearly a year later, Mitchell filed a motion under Idaho Criminal Rule 35 for correction
of his sentence, contending that the sentence was illegal in that it exceeded the maximum
sentence allowable by law. He asserted that the maximum punishment for his crime was seven
years, not ten. The district court denied the motion, noting that Mitchell’s guilty plea included
the sentence enhancement alleged in Part II of the information and that his sentence was
therefore well within the maximum allowed by law. Mitchell appeals.
       The maximum sentence for a first offense of the type to which Mitchell pleaded guilty is
seven years’ incarceration, I.C. § 37-2732(c)(1), but for a second or subsequent drug offense, the
sentence may be enhanced for a term up to twice the term otherwise authorized. I.C. § 37-
2739(a). Mitchell’s sentence was therefore not illegal.
       On appeal, Mitchell makes no argument to the contrary but instead states, “Mindful that
the district court was authorized to impose the ten-year sentence, Mr. Mitchell requests this
Court reverse the district court’s order denying his motion to correct an illegal sentence.”
       Mitchell having demonstrated no error in the district court’s determination that his
sentence is legal, the district court’s order denying Mitchell’s motion to correct an illegal
sentence is affirmed.




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