               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 44069

STATE OF IDAHO,                                )   2016 Unpublished Opinion No. 679
                                               )
       Plaintiff-Respondent,                   )   Filed: September 13, 2016
                                               )
v.                                             )   Stephen W. Kenyon, Clerk
                                               )
RICHARD J. HIBBERT,                            )   THIS IS AN UNPUBLISHED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,
       Minidoka County. Hon. Michael R. Crabtree, District Judge.

       Order denying Idaho Criminal Rule 35 motion to correct an illegal sentence,
       affirmed.

       Eric D. Fredericksen, Interim State Appellate Public Defender; Brian R. Dickson,
       Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

                      Before GUTIERREZ, Judge; GRATTON, Judge;
                                 and HUSKEY, Judge
                  ________________________________________________

PER CURIAM
       Richard J. Hibbert pled guilty to lewd conduct with a minor child under sixteen, Idaho
Code § 18-1508. The district court sentenced Hibbert to a determinate life sentence.
       At issue in this appeal is Hibbert’s third Idaho Criminal Rule 35 motion for correction of
an illegal sentence, asserting that his determinate life sentence is illegal from the face of the
record because it was in conflict with Blakely v. Washington, 542 U.S. 296 (2004) and Apprendi
v. New Jersey, 530 U.S. 466 (2000). Hibbert received a determinate life sentence without the
possibility of parole.   Hibbert asserts the sentence violated his Sixth Amendment right.
Specifically, he claims that a life sentence is the most he can receive under Idaho law for his

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crime. The district court denied the motion, concluding that Hibbert’s sentence was legal from
the face of the record and was permitted by the applicable statute. The State asserts that the
motion is barred by the doctrine of res judicata.
        Hibbert filed an I.C.R. 35 motion for correction of an illegal sentence in 2012 asserting
the same claim as made in the instant matter. This Court affirmed the district court’s denial of
the motion. State v. Hibbert, Docket No. 40088 (Ct. App. Feb. 19, 2013) (unpublished). Hibbert
filed a second Rule 35 motion for correction of an illegal sentence in 2015, asserting the same
claims. The district court denied the motion, and Hibbert did not appeal. That decision became
final before Hibbert filed the instant motion. The doctrine of res judicata bars relitigation of
issues that have been previously decided in a final judgment or decision in an action between the
same litigants. See State v. Rhoades, 134 Idaho 862, 863, 11 P.3d 481, 482 (2000). In Rhoades,
the Idaho Supreme Court held that “the doctrine of res judicata can be applied to bar
consideration of subsequent Rule 35 motions to the extent those motions attempt to relitigate
issues already finally decided in earlier Rule 35 motions.” Id. The claims made by Hibbert that
his sentence is illegal are barred by res judicata.
        Hibbert’s claims are also without merit. The Idaho Supreme Court as held in State v.
Stover, 140 Idaho 927, 104 P.3d 969 (2005) that Blakely and Apprendi do not have an impact on
Idaho’s sentencing scheme and that I.C. § 18-1508 authorizes imprisonment for a term of not
more than life for lewd conduct. The Supreme Court has also held in State v. Cross, 132 Idaho
667, 978 P.2d 227 (1999) that a determinate life sentence for a lewd conduct conviction is legal.
        The district court’s order denying Hibbert’s Rule 35 motion is affirmed.




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