                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 36722

STATE OF IDAHO,                                     )      2010 Unpublished Opinion No. 682
                                                    )
          Plaintiff-Respondent,                     )      Filed: October 21, 2010
                                                    )
v.                                                  )      Stephen W. Kenyon, Clerk
                                                    )
ANGEL LOPEZ-LIRA,                                   )      THIS IS AN UNPUBLISHED
                                                    )      OPINION AND SHALL NOT
          Defendant-Appellant.                      )      BE CITED AS AUTHORITY
                                                    )

          Appeal from the District Court of the Fifth Judicial District, State of Idaho, Blaine
          County. Hon. Robert J. Elgee, District Judge.

          Judgment of conviction and sentences for two counts of trafficking in cocaine,
          affirmed; order denying I.C.R. 35 motion for reduction of sentences, affirmed.

          Douglas A. Werth, Werth Law Office, PLLC, Hailey, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
          Attorney General, Boise, for respondent.
                     ______________________________________________
PERRY, Judge Pro Tem
          Angel Lopez-Lira appeals from his judgment of conviction and sentences entered upon
his guilty pleas to two counts of trafficking in cocaine. I.C. § 37-2732B(a)(2)(A). He also
appeals the district court’s denial of his I.C.R. 35 motion for reduction of those sentences. We
affirm.
          Lopez-Lira sold cocaine to confidential informants six separate times over a period of
one year. The state charged Lopez-Lira with one count of delivery of cocaine, two counts of
delivery of cocaine where children are present, and three counts of trafficking in cocaine.
Lopez-Lira pled guilty to two counts of trafficking in cocaine, with the remaining charges being
dismissed. The state also dismissed, in a separate case, two counts of intimidating a witness and
agreed to recommend a unified sentence of fourteen years, with six years determinate.




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       The district court sentenced Lopez-Lira to a unified term of fourteen years, with six years
fixed, on each count and ordered that the sentences run concurrently. Lopez-Lira filed a Rule 35
motion, which the district court denied. Lopez-Lira then pursued this appeal.
       Lopez-Lira asserts that the district court erred by failing to properly recognize the bounds
of its sentencing discretion. When a trial court’s discretionary decision is reviewed on appeal,
the appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower court
correctly perceived the issue as one of discretion; (2) whether the lower court acted within the
boundaries of such discretion and consistently with any legal standards applicable to the specific
choices before it; and (3) whether the lower court reached its decision by an exercise of reason.
State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
       At sentencing, counsel for Lopez-Lira conceded that each count carried with it a
mandatory minimum sentence of three years. However, counsel argued that the mandatory
minimum sentences could be run concurrently and did not have to be ordered to be served
consecutively. The district court disagreed. On appeal, Lopez-Lira continues with this assertion.
He argues that, because the district court had the statutory authority to run the mandatory
minimum sentences concurrently, it failed to properly recognize the boundaries of its discretion.
Therefore, Lopez-Lira argues that his sentences must be vacated and his case remanded for
resentencing. Because we conclude that, assuming the district court erred in its determination
that the mandatory minimum sentences could not be run concurrently any error would be
harmless, resentencing is unnecessary in this case.1
       Error is not reversible unless it is prejudicial. State v. Stoddard, 105 Idaho 169, 171, 667
P.2d 272, 274 (Ct. App. 1983).       With limited exceptions, even constitutional error is not
necessarily prejudicial error. Id. Thus, we examine whether the alleged error complained of in
the present case was harmless. See State v. Lopez, 141 Idaho 575, 578, 114 P.3d 133, 136 (Ct.
App. 2005). To hold an error harmless, this Court must declare a belief, beyond a reasonable
doubt, that there was no reasonable possibility that the evidence complained of contributed to the
conviction. State v. Sheldon, 145 Idaho 225, 230, 178 P.2d 28, 33 (2008).
       Although not cited by either party in its briefing, we find instructive the disposition
reached by the Court in State v. Medrain, 143 Idaho 329, 144 P.3d 34 (Ct. App. 1999). In

1
       The state characterizes the issue as moot. Because of our conclusion that any error would
be harmless, we do not address the state’s argument.

                                                2
Medrain, the district court erroneously found that the state had proven at trial that Medrain was a
persistent violator. At sentencing, the district court noted that, even disregarding the penalty
enhancement authorized by the persistent violator statute, Medrain’s sentence would have been
the same. On appeal, this Court determined that, although the persistent violator finding was in
error, a new sentencing hearing was unnecessary. This Court stated:
               The erroneous finding that Medrain was a persistent violator broadened
       the district court’s sentencing options. See State v. Hernandez, 120 Idaho 653,
       660, 818 P.2d 768, 775 (Ct. App. 1991). Ordinarily, when a discretionary ruling
       has been tainted by a legal or factual error, we vacate the decision and remand the
       matter for a new, error-free discretionary determination by the trial court. State v.
       Upton, 127 Idaho 274, 276, 899 P.2d 984, 986 (Ct. App. 1995). However, the
       remand may be avoided where it is apparent from the record that the result would
       not change or that a different result would represent an abuse of discretion. Id.
       Thus, if we are convinced, beyond a reasonable doubt, that the persistent violator
       finding did not affect the sentence imposed by the district court, we will conclude
       that, notwithstanding the erroneous finding that Medrain was a persistent violator,
       Medrain is not entitled to a new sentencing hearing. See State v. Clark, 132 Idaho
       337, 340, 971 P.2d 1161, 1164 (Ct. App. 1999).
               Here, the district court noted that, disregarding the penalty enhancement
       authorized by the persistent violator statute, it was authorized to sentence Medrain
       to a term of life imprisonment for delivery of a controlled substance. The district
       court also found that, according to the presentence investigation report, the
       current delivery charge was the fourth time Medrain had pled guilty to or been
       found guilty of a felony and the second time he had pled guilty to or been found
       guilty of delivery of a controlled substance. The district court indicated that it
       was therefore imposing Medrain’s sentence of a unified term of twenty years,
       with a minimum period of confinement of five years, without consideration of his
       status as a persistent violator. The district court later reiterated:
                        As far as I’m concerned the enhancements are a nonissue. .
               . . this is your fourth felony and it’s your second delivery since
               [1996], and that in my book gets you five to twenty. So I basically
               have done away with these enhancements.
               Accordingly, we can say, beyond a reasonable doubt, that the persistent
       violator finding did not affect the sentence imposed by the district court in this
       case. The insufficiency of the evidence to support the persistent violator finding
       does not require us to vacate Medrain’s sentence.

Medrain, 143 Idaho at 333, 144 P.3d at 38.
       In this case, the parties argued before the district court whether the sentencing statute
required the three-year mandatory minimum to be served consecutively. The district court
determined that it did. However, the district court also made it clear that, even if the statute did



                                                 3
not so require, the appropriate sentence for Lopez-Lira’s convictions was six years fixed. The
district court stated:
                 I’ve looked at the two cases that you’ve cited to the Court, State of Idaho
        versus Michael Harris, which is 141 Idaho 721, and State v. Helms, which is 130
        Idaho 32, but neither of them deal with the precise issue here, which is whether
        the Court can avoid the mandatory minimum term on two identical counts. In this
        case Mr. Lira has pled guilty to two charges of trafficking in cocaine, and each
        charge carries a mandatory minimum term of three years.
                 I have listened closely to the sentencing arguments, I have read the
        presentence investigation, and I have read all the letters from Mr. Lira’s family. I
        have considered the nature of the offense and the character of the offender. The
        primary factors in this sentence to me appear to be the deterrence of the defendant
        in particular and the public in general and punishment or retribution.
                 It appears that Mr. Lira was involved in more than one sale over a period
        of time, and many of them were large amounts of cocaine. In my view the
        statutes require a minimum sentence of three years on each count, which would
        mean that the Court has to sentence Mr. Lira to at least six years fixed in the
        penitentiary. But even if the statutes did not require that, the sentences, the
        mandatory minimum sentences added together, it is the Court’s belief that Mr.
        Lira’s activity in this case would merit that sentence.
                 While Mr. Lira has some portions of his life that might have been
        commendable, that is not what the sentence--or that’s not the part of the--of his
        life that has gotten him before the Court. And the primary factors I have already
        mentioned are deterrence and punishment.
                 I am going to follow the State’s recommendation in this case and impose
        on Count One a sentence of six years fixed in the custody of the State Board of
        Corrections, followed by an 8-year indeterminate sentence, for a unified sentence
        of 14 years.
                 I will impose the same sentence on Count Two, and those sentences will
        run concurrent. And I believe that sentence satisfies the mandatory minimum
        sentencing requirements if they apply in this case, and I am assuming they do.
        But, like I say, I think would be an appropriate sentence even if they do not.

        Therefore, as this Court did in Medrain, we are able to conclude beyond a reasonable
doubt that the district court’s assumption that the statute required the three-year sentences to be
served consecutively, if error, was harmless.
        Additionally in this case, Lopez-Lira filed a Rule 35 motion seeking reduction of the
minimum term of confinement to five years so that he could be housed in a different facility
operated by the Idaho Department of Corrections. At the hearing on the Rule 35 motion, the
district court once again discussed its reasoning in giving Lopez-Lira a six-year minimum term.
The district court stated:



                                                 4
               Mr. Lira was convicted of two counts of trafficking. Each count carries a
       mandatory minimum fixed term of three years. These charges were serious, and
       the Court believes that a sentence of six years is an appropriate fixed term
       whether the law requires the terms to run consecutive or not. So on the merits of
       the Rule 35 motion, I’m going to deny the motion for Rule 35.
               Another reason for denying the motion is I believe the law requires at least
       six years fixed, although it is possible that the defendant is correct, the Court
       could order concurrent sentences. At sentencing the defendant argued for
       concurrent sentences. So I believe at sentencing, in order to avoid the problem of
       whether I had to and was required to run the two fixed sentences consecutively
       and believing that six years was an appropriate term as a fixed term for a
       sentence, whether the law required it or not, I gave the defendant what he asked
       for and did the six years fixed and ran the sentences concurrent.
               Now I see that the case is on appeal, and it’s possible that the argument
       can get switched around now on appeal and the defendant or the State can argue
       that the sentences are illegal because the Court ordered sentences to run
       concurrently.
               I want to restate that it’s the intent of the Court for the defendant to serve
       six years fixed total for both convictions, and if the Court cannot order concurrent
       sentences, which is the reverse of what the defendant requested at sentencing, the
       sentences should be revised by the appellate court. And I want to put that in
       capital letters. If they determine concurrent sentences are not appropriate, the
       sentences should simply be revised to three years fixed on each count to run
       consecutive with the eight years indeterminate on each count. So the sentence on
       each count would be eleven years unified sentence, but the fixed terms would run
       consecutively.

       Accordingly, as with the sentences imposed in this case, assuming the district court erred
in its determination that the three-year minimum terms were required to be served consecutively,
said error is harmless. Lopez-Lira’s judgments of conviction and sentences and the district
court’s denial of his Rule 35 motion are affirmed.
       Judge GUTIERREZ and Judge GRATTON, CONCUR.




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