               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 40538

STATE OF IDAHO,                                  )     2015 Unpublished Opinion No. 453
                                                 )
       Plaintiff-Respondent,                     )     Filed: April 6, 2015
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
MONTE CURTIS MOON,                               )     THIS IS AN UNPUBLISHED
                                                 )     OPINION AND SHALL NOT
       Defendant-Appellant.                      )     BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Sixth Judicial District, State of Idaho,
       Bannock County. Hon. David C. Nye, District Judge.

       Order of the district court denying I.C.R. 35 motion, reversed and case remanded.

       Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant. Brian R. Dickson argued.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent. Jessica M. Lorello argued.
                 ________________________________________________
GRATTON, Judge
       Monte Curtis Moon appeals the denial of his motion to correct an illegal sentence. He
argues that the district court lacked subject matter jurisdiction to impose any sentence resulting
from his 1996 escape charge. He argues that his conduct, removing an ankle monitor while
under “house arrest” and absconding, did not constitute the crime of escape at the time he
engaged in that conduct and that he has used a proper procedure to raise this claim. We reverse
and remand.
                                                I.
                                       BACKGROUND
       In 1995, Moon was originally charged with statutory rape. While charges were pending,
he fled to Wyoming and failed to appear at a court hearing. In 1996, Moon was apprehended and
a new bond was imposed. Moon originally sought a bond reduction, but eventually requested
and was placed on house arrest. As a condition of house arrest, Moon was ordered to wear an

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ankle monitor. While on house arrest, Moon removed his ankle monitor and absconded. The
State charged Moon with the crime of escape, Idaho Code § 18-2505. Moon pleaded guilty to
both escape and statutory rape and was sentenced in 1997. As to the statutory rape charge, Moon
was sentenced to a unified term of fourteen years, with seven years fixed. As to the escape
charge, Moon was sentenced to a unified term of five years, with three years fixed. The escape
sentence was imposed to run consecutively to the statutory rape charge. However, the court
retained jurisdiction as to both charges.     Moon returned from retained jurisdiction with a
recommendation that the court relinquish jurisdiction, but the court ordered probation. In 1998,
approximately four months after being placed on probation, Moon violated his probation by,
inter alia, consuming alcohol and driving under the influence when his passenger died in a
vehicular collision. On this basis, the court revoked probation and executed the underlying
sentences.
       Over the years, Moon has filed various motions attacking his escape conviction. Our
record of these prior proceedings is limited and has been gleaned, in part, from the registers of
action in the district court and in this Court. In 1998, it appears that Moon filed two motions
pursuant to Rule 35. One was a motion for leniency, which was denied by the district court. We
affirmed the denial in an unpublished opinion, State v. Moon, Docket No. 25393 (Ct. App.
Feb. 23, 2000). In 2002, Moon filed a motion to correct an illegal sentence pursuant to Idaho
Criminal Rule 35. After it was denied, Moon attempted to file an appeal, but it was dismissed as
untimely. Also in 2002, Moon filed a motion to withdraw his guilty plea. In that motion, he
alleged that his conduct did not amount to escape. The district court denied the motion, ruling
that the court had been divested of jurisdiction to consider a motion to withdraw a guilty plea by
the passage of time; Moon appealed the denial. On appeal, this Court rejected Moon’s claims
and held that the district court properly ruled that it lacked jurisdiction to consider the motion.
State v. Moon, 140 Idaho 609, 611-12, 97 P.3d 476, 478-79 (Ct. App. 2004).
       In 2012, over fifteen years after he was originally sentenced, Moon filed the motion at
issue in this appeal. In that motion, which was filed pursuant to I.C.R. 35, Moon claimed that his
sentence is illegal in that the trial court lacked subject matter jurisdiction. The district court
denied Moon’s motion in a short ruling, citing Housley v. State, 119 Idaho 885, 889, 811 P.2d
495, 499 (Ct. App. 1991) and holding that a Rule 35 motion may not be used to collaterally
attack the validity of a conviction.

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       Moon filed a timely appeal challenging the district court’s denial of his motion. He
argues that the district court lacked subject matter jurisdiction to enter the original judgment of
conviction and contends that he was permitted to challenge subject matter jurisdiction using a
Rule 35 motion.
                                                II.
                                           ANALYSIS
       Generally, Idaho Criminal Rule 35(a) permits a defendant to challenge an “illegal
sentence.” Consistent with that purpose, Idaho courts have previously held that Rule 35 may not
be used to attack the validity of a “conviction.” See, e.g., Housley, 119 Idaho at 889, 811 P.2d at
499. Relying upon this rule, the district court held that Moon’s most recent Rule 35 motion was
procedurally improper. It reasoned that an attack on subject matter jurisdiction amounted to an
attack on the validity of Moon’s conviction.
       Given recent changes in Idaho law, we conclude that the district court’s holding was
erroneous. Two Idaho Supreme Court decisions expressly authorize a defendant to bring a
subject matter jurisdiction claim through a Rule 35(a) motion. In State v. Lute, 150 Idaho 837,
840, 252 P.3d 1255, 1258 (2011), the Court held that “where a court properly has jurisdiction to
consider a case--as it does here to consider Lute’s I.C.R. 35 motion--and it is apparent that there
is an issue concerning subject matter jurisdiction . . . this Court must correct that error.” More
recently, that holding was reaffirmed in State v. Wolfe, ___ Idaho ___, 343 P.3d 497 (2015). In
Wolfe, the Court clarified the standards and procedural limitations imposed when a defendant
challenges subject matter jurisdiction, using Rule 35 as the procedural vehicle to bring the claim.
       In light of Lute and Wolfe, we are constrained to hold that the district court erred by
summarily denying Moon’s Rule 35 motion. We note that our record is insufficient to determine
which, if any, of the procedural limitations described in Wolfe may apply in this case. Therefore,
we must remand this case to the district court for further proceedings consistent with the holding
in Wolfe.
       Accordingly, we reverse the decision of the district court denying Moon’s Rule 35
motion to correct an illegal sentence and remand.
       Judge GUTIERREZ CONCURS.
       Judge Pro Tem SCHWARTZMAN, SPECIALLY CONCURRING



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       I concur in the opinion of the Court. I write separately to highlight and articulate some of
the legal ironies associated with this case:
       1. Since at least 2002, Moon has been attempting to raise the jurisdictional issue that his
conduct charged in the Information--removing a home monitor device and escaping while under
house arrest--did not amount to the crime of “escape” as defined by statute. To date, no court
has ruled on the substantive merits of his claim.
       2. Given the permutations of the Wolfe decision and the doctrine of res judicata as
expressed therein, no court may ever reach a decision on the merits.
       3. Even if a decision is forthcoming sometime in the future, it will have virtually no or
little effect on Moon’s incarceration status as his sentence on the escape charge has been almost
served to completion.
       4. Any decision on the merits would have absolutely no precedential effect or value, as
the state statute was amended in 2007 to specifically cover this type of conduct.
       Nevertheless, a close reading of the following Idaho cases: State v. Rocque, 104 Idaho
445, 660 P.2d 57 (1983); State v. Swisher, 125 Idaho 797, 874 P.2d 608 (Ct. App. 1994); State v.
Climer, 127 Idaho 20, 896 P.2d 346 (Ct. App. 1995); State v. Shanks, 139 Idaho 152, 75 P.3d
206 (Ct. App. 2003), in conjunction with the order placing Moon under house arrest, 1 leads me
to believe that Moon’s claim has persuasive substantive merit. Whether this may be of any legal
consolation to Moon, I cannot say.
       Further, your Idaho jurist sayeth naught.




1
       The relevant portions of the order read as follows:

               IT IS HEREBY ORDERED that the Defendant, Monte C. Moon, shall be
       immediately released from the custody of the Bannock County Sheriff and placed
       on house arrest. The Defendant shall reside at [his address].
               IT IS FURTHER ORDERED that the Defendant shall pay the regular
       home monitor fees for the period of time he is on house arrest, but the fees shall
       not exceed the sum of Two Hundred Ten Dollars and no/100 ($210.00) for
       whatever time said Defendant is on house arrest.
               IT IS FURTHER ORDERED that this release is in effect, pending further
       order of this Court. Any violation of the home monitor program by the Defendant
       shall result in an immediate revocation of this Order, and the Defendant shall be
       immediately remanded back to the custody of the Bannock County Sheriff.
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