                    IN THE SUPREME COURT OF THE STATE OF IDAHO

                                           Docket No. 45547


STATE OF IDAHO,                         )
                                        )
      Plaintiff-Respondent,             )
                                                             Boise, September 2018 Term
                                        )
v.                                      )
                                                             Filed: November 30, 2018
                                        )
RAUL EDGAR HERRERA,                     )
                                                             Karel A. Lehrman, Clerk
                                        )
      Defendant-Appellant.              )
_______________________________________ )

       Appeal from the District Court of the Third Judicial District of the State of Idaho,
       Canyon County. Hon. Davis F. VanderVelde, District Judge.

       The judgment of the district court is affirmed.

       Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant. Brian
       R. Dickson argued.

       Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent.
       Lori A. Fleming argued.
                                _____________________

BRODY, Justice.
       Raul Edgar Herrera challenges the district court’s partial denial of his Idaho Criminal
Rule 35 motion for correction or reduction of sentence. Following his conviction for first-degree
murder, among other charges, Herrera was sentenced to an indeterminate term of life with thirty-
five years fixed. Herrera argued that his sentence was illegal because the fixed term was greater
than the duration authorized by Idaho Code section 18-4004, the statute governing punishment
for murder. The district court rejected this argument and denied Herrera’s motion as to that part,
but the motion was granted in part due to an illegal sentence for Herrera’s separate conviction for
second-degree kidnapping. After a hearing was held to correct the kidnapping sentence, the
district court entered an amended judgment, from which Herrera appealed. We affirm the district
court’s decision.


                                                    1
                 I.      FACTUAL AND PROCEDURAL BACKGROUND
       On July 21, 2015, Herrera was convicted by a jury of first-degree murder and second-
degree kidnapping. On January 13, 2016, the district court imposed concurrent life sentences for
each offense with fixed terms of thirty-five years and twenty years, respectively. Herrera filed an
Idaho Criminal Rule 35 motion for leniency. The district court denied the motion, as well as a
motion to reconsider that decision. On December 13, 2016, the Court of Appeals affirmed the
judgment of conviction in an unpublished per curiam decision. Herrera’s subsequent petition for
review was denied.
       Thereafter, on March 6, 2017, Herrera filed a pro se Rule 35 motion seeking the
correction of his allegedly illegal sentences for the murder and kidnapping convictions. During a
hearing on the motion, the parties agreed to stipulate to a new kidnapping sentence of a fixed
term of twenty years. Herrera conditioned his agreement with a stipulation on the district court
concluding that his sentence for the murder conviction was lawful. Alternatively, if that sentence
was found unlawful, Herrera stated that he would not agree to the stipulation.
       On August 16, 2017, the district court issued an order that granted and denied parts of
Herrera’s motion. The court first determined that the murder conviction’s sentence was lawful
under Idaho Code section 18-4004 and denied that part of the motion. As to the kidnapping
offense, the court concluded that the sentence was illegal because the indeterminate life portion
exceeded the maximum penalty permitted under Idaho Code section 18-4504(2). While
acknowledging the parties’ stipulation to a new sentence for that offense, the court explained that
its finding rendered the original judgment void and therefore a new sentencing hearing was
required.
       On October 5, 2017, following a resentencing hearing, the district court entered an
amended judgment and commitment, wherein it imposed a twenty-year fixed sentence for the
kidnapping conviction. The murder sentence was left unchanged. On October 25, 2017, Herrera
filed a notice of appeal from the amended judgment.
                               II.    STANDARD OF REVIEW
       Idaho Criminal Rule 35(a) enables a trial court to correct a sentence that is “illegal from
the face of the record” at any time. I.C.R. 35(a). “Whether this rule is implicated generally raises
a question of law, for which this Court exercises free review.” State v. Passons, 163 Idaho 643,



                                                     2
645, 417 P.3d 240, 242 (2018) (citing State v. Clements, 148 Idaho 82, 84, 218 P.3d 1143, 1145
(2009)).
                                        III.   ANALYSIS
       Herrera argues that the district court erred in denying part of his Rule 35 motion in light
of this Court’s analysis of Idaho Code section 18-4004 in Booth v. State, 151 Idaho 612, 262
P.3d 255 (2011). He contends that in Booth, this Court interpreted the statute to authorize only
life sentences with fixed terms of ten years for convictions of first-degree murder where the
death penalty was not sought. Because Herrera was sentenced to life with a fixed term of thirty-
five years for his murder conviction, he asserts that his sentence is illegal and that the district
court should have granted his motion in full. The State does not respond to this argument, but
instead asserts that Herrera’s appeal is untimely. The State’s argument will be addressed first as
it goes to the threshold matter of this Court’s jurisdiction. State v. Wolfe, 158 Idaho 55, 60, 343
P.3d 497, 502 (2015).
       A. Herrera’s appeal was timely.
       The State asserts that Herrera’s appeal was filed after the mandated forty-two day mark
required by Idaho Appellate Rule 14(a). Appellate Rule 14(a) requires the filing of a notice of
appeal with the clerk of the district court within forty-two days from the date of any judgment or
order of the district court appealable as a matter of right in any criminal action. I.A.R. 14(a).
Failure to comply with this time limit removes jurisdiction from the reviewing court and requires
a dismissal of the appeal. I.A.R. 21.
       As noted above, Herrera filed his notice of appeal from the amended judgment on
October 25, 2017. The State argues that Herrera was required to file a notice of appeal directly
from the earlier order granting his Rule 35 motion in part within the forty-two day window that
followed the order’s entry—i.e., between August 16, 2017, and September 27, 2017—and that
his appeal from the amended judgment exceeded this limitation. Herrera asserts that the timing
of his appeal was proper because the entwined nature of his sentences for the kidnapping and
murder convictions left issues unresolved until after the amended judgment was entered. We
agree with Herrera that he properly appealed from the amended judgment.
       Appealable judgments and orders in criminal actions are enumerated in Idaho Appellate
Rule 11(c). I.A.R. 11(c). However, none of the eleven options listed under Rule 11(c) address
orders partially granting post-judgment motions. In this case, the district court’s order was an

                                                    3
order only partially granting Herrera’s post-judgment motion. Herrera had moved the court to
correct the sentences imposed for both his kidnapping conviction and his murder conviction. In
granting part of Herrera’s motion, the district court explained that the judgment as to the
kidnapping conviction was void, which necessitated further proceedings to impose a corrected
sentence. Thus, the district court’s order effectively left Herrera with a vacated sentence and a
suspended judgment as to his kidnapping conviction, i.e., a partially granted post-judgment
motion.
       Initially, it appears that Idaho Appellate Rule 11(c)(9) required Herrera to appeal from
the Rule 35 order because Rule 11(c)(9) provides for an appeal as a matter right from “[a]ny
order made after judgment affecting the substantial rights of the defendant or the state.”
However, the district court’s Rule 35 order disturbed the very judgment upon which it was
predicated. This situation is fundamentally different from one where the district court affirms its
original sentence by denying a Rule 35 motion in full, which would be appealable as a matter of
right under Rule 11(c)(9). In that context, the denial of the motion resolves all issues, does not
affect the underlying judgment, and clearly constitutes an appealable post-judgment order
affecting the defendant’s substantial rights under Rule 11(c)(9). See, e.g., State v. Hickman, 119
Idaho 7, 9, 802 P.2d 1219, 1221 (Ct. App. 1990) (finding appeal timely from district court’s
reaffirming original sentences through a normally impermissible “renewed Rule 35 motion”).
       The Idaho Court of Appeals in State v. Fuller demonstrated the distinction between a full
denial of a Rule 35 motion and a partial denial. 104 Idaho 891, 665 P.2d 190 (Ct. App. 1983). In
Fuller, the Court of Appeals explained that an order denying a Rule 35 motion would be
appropriately appealable pursuant to Rule 11(c)(6), which was an earlier version of the present-
day Rule 11(c)(9). 104 Idaho at 891–92, 665 P.2d at 190–91. Consistent with Herrera’s
argument, however, the Fuller Court was addressing a Rule 35 motion that had been denied in
full—Fuller did not involve a partial grant of the motion, a voided judgment, or further
proceedings before the lower court. But cf. State v. Payan, 132 Idaho 614, 619, 997 P.2d 228,
233 (Ct. App. 1998) (explaining that a district court is expected to rule upon a Rule 35 motion
despite there also being a pending direct appeal, and that any order on the motion can be
consolidated into the appeal (citing State v. Nickerson, 123 Idaho 971, 974 n.4, 855 P.2d 56, 59
n.4 (Ct. App. 1992))).



                                                    4
       While Herrera’s motion certainly arose in the post-judgment stage and affected his
substantial rights, the district court’s grant of that motion left work to be done. The district court
eventually entered an amended judgment that mirrored the parties’ stipulation as to Herrera’s
new kidnapping sentence; however, there remained the possibility that other appealable issues
stemming from Herrera’s Rule 35 motion could have arisen from the resentencing hearing. In
these circumstances, it is contrary to the interest of justice to require Herrera to have immediately
appealed the district court’s order despite the uncertainty that existed in the continued
proceedings at that level. Therefore, Herrera’s appeal is timely and is properly before this Court.
       B. Merits of Herrera’s appeal.
       Herrera argues that his first-degree murder sentence is illegal because his minimum
mandatory sentence for murder was set at more than 10 years. We reject this argument.
       Herrera contends that the illegality of his sentence rests in the district court’s application
of Idaho Code section 18-4004, which reads:
       Subject to the provisions of sections 19-2515 and 19-2515A, Idaho Code, every
       person guilty of murder of the first degree shall be punished by death or by
       imprisonment for life, provided that a sentence of death shall not be imposed
       unless the prosecuting attorney filed written notice of intent to seek the death
       penalty as required under the provisions of section 18-4004A, Idaho Code, and
       provided further that whenever the death penalty is not imposed the court shall
       impose a sentence. If a jury, or the court if a jury is waived, finds a statutory
       aggravating circumstance beyond a reasonable doubt but finds that the imposition
       of the death penalty would be unjust, the court shall impose a fixed life sentence.
       If a jury, or the court if a jury is waived, does not find a statutory aggravating
       circumstance beyond a reasonable doubt or if the death penalty is not sought, the
       court shall impose a life sentence with a minimum period of confinement of not
       less than ten (10) years during which period of confinement the offender shall not
       be eligible for parole or discharge or credit or reduction of sentence for good
       conduct, except for meritorious service. Every person guilty of murder of the
       second degree is punishable by imprisonment not less than ten (10) years and the
       imprisonment may extend to life.
I.C. § 18-4004 (emphasis added).
       Herrera argues that this Court interpreted Idaho Code section 18-4004 as limiting the
minimum period of confinement to 10 years in Booth v. State, 151 Idaho 612, 262 P.3d 255
(2011). This contention is incorrect. In Booth, this Court was asked to consider section 18-4004
for purposes of an ineffective assistance of counsel challenge. Id. at 617–22, 262 P.3d at 260–65.
This Court analyzed the statutory text to assess the State’s assertion that the defendant had not
been prejudiced because his punishment would have been the same for first-degree or second-
                                                      5
degree murder. To completely address this argument, we focused on the last two sentences of the
statute, noting first that second-degree murder is “punishable by imprisonment not less than ten
(10) years and the imprisonment may extend to life.” Id. at 622, 262 P.3d 265. For first-degree
murder, however, we explained that in cases where the death penalty is not sought “the court is
required to impose an indeterminate life sentence with a minimum period of confinement of not
less than ten years.” Id. at 622, 262 P.3d 265. Rejecting the State’s argument that punishment
would have been the same for either degree of murder, this Court distinguished the two possible
punishments as follows: “a defendant convicted of first-degree murder automatically receives an
indeterminate life sentence with a fixed term of ten years, while a defendant convicted of second-
degree murder only faces a unified term of not less than ten years.” Id.
       Herrera latches onto this final line and argues that it mandates the interpretive conclusion
that section 18-4004 only allows for fixed terms of ten years for first-degree murder convictions.
Given that his fixed term of thirty-five years is greater than ten years, Herrera contends that his
Rule 35 motion should have been fully granted because his sentence is illegal. This argument
grossly misinterprets Idaho Code section 18-4004.
       In examining the plain text of section 18-4004, the statute authorizes fixed terms of “not
less than ten (10) years.” I.C. § 18-4004 (emphasis added). Inclusion of “not less than” clearly
authorizes fixed terms greater than ten years. As Herrera acknowledges in his brief, and as
explained by the district court in its written order denying Herrera’s motion, the Court of
Appeals has rejected an identical argument to the one made here by Herrera:
       Because I.C. § 18–4004 authorizes “a minimum period of confinement of not less
       than ten (10) years,” Griffith contends that his fixed term may not be more than
       ten years.
              Griffith’s argument distorts the meaning of the statute. In substance, he
       contends that the ten-year minimum fixed sentence authorized by the statute is
       instead a ten-year maximum fixed term. The statute actually authorizes for first
       degree murder a unified sentence of life with a fixed term of any duration between
       ten years and life.
State v. Griffith, 157 Idaho 409, 410, 336 P.3d 816, 817 (Ct. App. 2014).
       The lone sentence in Booth that Herrera relies upon was merely a comparison of the
differing punishments for first- and second-degree murders under section 18-4004; this Court
was not directly addressing the limits of fixed sentences in situations such as the one presented
here. The statute’s language is clear and unambiguous: In first-degree murder cases where the


                                                     6
death penalty was not sought, a life sentence shall be imposed with at least a ten year period of
confinement; but, nothing in section 18-4004 restricts the district court from imposing more than
ten years of confinement. Therefore, the district court did not err in finding that Herrera’s first-
degree murder sentence was lawful.
                                     IV.     CONCLUSION
       In light of the foregoing, the judgment of the district court is affirmed.


       Chief Justice BURDICK, and Justices HORTON, BEVAN, and STEGNER CONCUR.




                                                     7
