               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 41217

STATE OF IDAHO,                                   )     2014 Unpublished Opinion No. 399
                                                  )
       Plaintiff-Respondent,                      )     Filed: February 28, 2014
                                                  )
v.                                                )     Stephen W. Kenyon, Clerk
                                                  )
JEREMY JOSEPH BROWN,                              )     THIS IS AN UNPUBLISHED
                                                  )     OPINION AND SHALL NOT
       Defendant-Appellant.                       )     BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the Second Judicial District, State of Idaho,
       Latah County. Hon. John R. Stegner, District Judge.

       Order denying I.C.R. 35 motion to correct illegal sentence, affirmed.

       Jeremy Joseph Brown, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Jeremy Joseph Brown pleaded guilty to aggravated battery and a sentencing enhancement
for the shooting of an acquaintance. Brown filed a motion to correct an illegal sentence under
Idaho Criminal Rule 35. In that motion he contended that the sentence imposed for his crime
violates double jeopardy and due process. The district court denied the motion and Brown
appeals.
                                                 I.
                                        BACKGROUND
       Although the parties disputed the exact sequence of events, the record shows that Brown,
while significantly intoxicated, willfully shot his victim in the head. As a result of the shooting,
the victim was blinded, lost his sense of smell, and suffered significant memory loss. Brown was
charged with aggravated battery in violation of Idaho Code §§ 18-903, 18-907(1)(b). In the
same information, the State alleged two sentencing enhancements, one for the infliction of great



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bodily injury under I.C. § 19-2520B, and one for the use of a firearm under I.C. § 19-2520. In an
amended information, the State removed the first sentencing enhancement alleging great bodily
injury.
          After the charging document was amended, the State and Brown entered into a binding
plea agreement. Under the terms of that agreement, Brown pled guilty and the parties agreed
that the Court would impose a prison sentence. 1 After a sentencing hearing, the court imposed a
fifteen-year fixed prison sentence for the aggravated battery charge and a fifteen-year unified
sentence, with ten years fixed, for the sentencing enhancement. In its judgment of conviction,
the court indicated that these sentences were to be served consecutively.
          Brown, through counsel, filed a motion seeking leniency under I.C.R. 35(b). The motion
was based, in part, upon a statement by the sentencing court that it would, if such were possible,
“impose upon Mr. Brown the injuries he has sustained on [the victim].” At the hearing on that
motion, the court indicated that it had been sincere when it made that comment, but that its
decision was made while “passionate,” “angry,” and “sad.” The court made clear that these
emotions flowed from Brown’s senseless and unfathomable use of deliberate violence. The
court then reduced Brown’s sentence to a unified sentence of thirty years with twenty years
fixed. When asked how the sentence was split between the offense and the enhancement, the
court indicated that it was reducing the fixed sentence on the enhancement. In the accompanying
order, the court reduced Brown’s sentence to fifteen years fixed, for the aggravated battery and a
consecutive, unified sentence of fifteen years with five years fixed on the enhancement “for a
total maximum period of confinement of Thirty (30) years and a total minimum period of
confinement of Twenty (20) years.”
          Over ten years later, Brown, without the assistance of counsel, filed a motion to correct
an illegal sentence under I.C.R. 35(a). He alleged two forms of double jeopardy, ineffective
assistance of counsel, and a due process claim. As to double jeopardy, Brown argued that the
court erred by imposing consecutive sentences for the aggravated battery and the enhancement
and that it was impermissible to apply a firearm enhancement for aggravated battery where the



1
        The record indicates that the victim nearly died from the gunshot and, months later,
nearly died from an infection precipitated by the gunshot. From the record below, there is some
indication that one purpose of the plea agreement was to limit Brown’s criminal liability if the
victim later died from the shooting.

                                                  2
aggravating factor elevating the battery to a felony was the use of that firearm. He also alleged
that his counsel was ineffective for failing to file an appeal. Finally, Brown argued that he was
denied due process of law when he was charged with aggravated battery instead of the
intentional, but not malicious, pointing of a firearm that causes maiming or injury under I.C.
§ 18-3306. That statute contains the word “shall,” and Brown argued that this language is
mandatory. Because the language is mandatory, he contended that the State was required to
charge him with that crime and was not permitted to charge aggravated battery.
       The district court denied Brown’s motion. As to the first double jeopardy claim, the
court held that Brown was not subjected to two sentences but to a single sentence that included
an enhancement. As to the second double jeopardy claim, regarding the use of a firearm, the
court held that the enhancement was not a second punishment for the purposes of double
jeopardy. As to the ineffective assistance of counsel claim, the court determined that the claim
could not be properly brought under I.C.R. 35(a). Finally, the court rejected the claim that
Brown was entitled to be charged under I.C. § 18-3306 as the prosecutor had discretion in
bringing charges.
       Brown appealed and contends that the district court erred by denying his Rule 35 motion.
On appeal, he asserts that he was entitled to relief on each of the grounds set forth in his motion.
                                                 II.
                                            ANALYSIS
       Idaho Criminal Rule 35 is a narrow rule that allows a trial court to correct an illegal
sentence at any time, or to correct a sentence imposed in an illegal manner within 120 days.
State v. Clements, 148 Idaho 82, 84, 218 P.3d 1143, 1145 (2009); see also I.C.R. 35; State v.
Farwell, 144 Idaho 732, 735, 170 P.3d 397, 400 (2007). In an appeal from the denial of a
motion under Rule 35 to correct an illegal sentence, the question of whether the sentence
imposed is illegal is a question of law freely reviewable by the appellate court.           State v.
Josephson, 124 Idaho 286, 287, 858 P.2d 825, 826 (Ct. App. 1993); State v. Rodriguez, 119
Idaho 895, 897, 811 P.2d 505, 507 (Ct. App. 1991). “[T]he term ‘illegal sentence’ under Rule 35
is narrowly interpreted as a sentence that is illegal from the face of the record, i.e., does not
involve significant questions of fact or require an evidentiary hearing.” Clements, 148 Idaho at
86, 218 P.3d at 1147.




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A.     Consecutive Sentences Claim
       In this case, the order reducing Brown’s sentence could be read to impose two sentences
consecutively: an aggravated battery sentence and a separate enhancement sentence. Brown
argues that such a sentence would violate double jeopardy. However, even if we construed the
language that way, Brown has failed to show error. In State v. Alsanea, 138 Idaho 733, 745, 69
P.3d 153, 165 (Ct. App. 2003), when describing the firearm enhancement, the Court stated that
the defendant “was sentenced to a[n] ‘indeterminate period of custody of up to fifteen (15) years
consecutive’ to his sentence for the second count of aggravated assault.” As Brown does now,
the defendant in that case complained “that the district court erroneously imposed a separate,
consecutive sentence for his use of a firearm during commission of the aggravated assaults,
rather than enhancing one of his aggravated assault sentences.” Id. We held that the defendant
in Alsanea was not entitled to any relief:
       The legality of a sentence is a question of law over which we exercise free review.
       The term “consecutive” is inappropriate when referring to a sentence
       enhancement for use of a firearm. It may connote, inaccurately, the existence of
       two separate sentences. It is well established that, regardless of the terminology
       employed, a firearm enhancement is part of a single sentence. Although the
       enhancement must be specifically identified for appellate review, the base
       sentence and the enhancement should be construed as one continuous sentence.
       Accordingly, the mere choice of a possibly inappropriate word does not give rise
       to Rule 35 relief, absent a showing that it has caused the enhanced sentence to be
       administered improperly.

Id. (internal citations omitted). Brown does not attempt to distinguish Alsanea or argue that it
was incorrectly decided; rather, he cites it as authority for the proposition that consecutive
sentences are inappropriate. Although Alsanea does stand for the proposition that describing a
sentence in that way is inaccurate, it also unambiguously stands for the proposition that such an
inaccuracy is not grounds for relief. Accordingly, while we urge the district court not to use such
terminology in the future when imposing an enhanced sentence, we conclude that Brown has not
shown that he was entitled to any relief.
B.     Claim that Firearm Enhancement Constitutes Double Jeopardy
       Brown argues that his sentence violates double jeopardy because the State used a single
fact, Brown’s use of a firearm, in two ways. The State charged him with aggravated battery,
alleging the use of a firearm elevated the battery to a felony under I.C. § 18-907(1)(b). It also
alleged the same use of a firearm to support the firearm enhancement under I.C. § 19-2520.


                                                4
Brown relies on State v. Guillaume, 975 P.2d 312, 318 (Mont. 1999) to support his contention
that this violates double jeopardy under Idaho’s pleading theory. The Montana court there held
that the Fifth Amendment does not bar such a punishment regime, but construed the Montana
Constitution to provide broader protections and on that basis granted the defendant relief.
Guillaume is plainly irrelevant to Idaho’s pleading theory of double jeopardy. It does not cite
our rule, reference our rule, or adopt a similar rule.
       Moreover, Brown fails to address the relevant Idaho authorities. Idaho courts have heard
and rejected this particular claim for decades. For example, in State v. Metzgar, 109 Idaho 732,
710 P.2d 642 (Ct. App. 1985), the defendant raised a claim that is nearly identical to the one
presented by Brown:
       He points out that using a firearm elevated his crime from a simple assault to an
       aggravated assault, but using the firearm was also responsible for the sentence
       enhancement. Therefore, Metzgar urges that this “double enhancement” first
       violates his constitutional right against double jeopardy.

Id. at 734, 710 P.2d at 644. When addressing Metzgar’s claim, we quoted the ruling of the
United States Supreme Court in Missouri v. Hunter, 459 U.S. 359 (1983):
              Where, as here, a legislature specifically authorizes cumulative
       punishment under two statutes, regardless of whether those two statutes proscribe
       the “same” conduct under Blockburger, a court’s task of statutory construction is
       at an end and the prosecutor may seek and the trial court or jury may impose
       cumulative punishment under such statutes in a single trial.

Id. at 368-69. We held that Metzgar’s double jeopardy claim failed because I.C. § 19-2520
states, “This section shall apply even in those cases where the use of a firearm is an element of
the offense.”    This language, we said, expressly evinces legislative intent that cumulative
punishments be imposed.
       Although Brown references Idaho’s “pleading theory” of double jeopardy, 2 he does not
distinguish Metzgar, or argue how the “pleading theory” should alter the analysis set forth in
Metzgar. Therefore, we conclude Brown has not shown error.



2
        Idaho recognizes a “pleading theory” of double jeopardy. State v. Flegel, 151 Idaho 525,
529, 261 P.3d 519, 523 (2011). “This theory holds ‘that an offense is an included offense if it is
alleged in the information [or indictment] as a means or element of the commission of the higher
offense.’” Id. (quoting Sivak v. State, 112 Idaho 197, 211, 731 P.2d 192, 206 (1986)); see also
State v. Anderson, 82 Idaho 293, 301, 352 P.2d 972, 977 (1960).

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C.     Ineffective Assistance of Counsel Claim
       Brown argues that his counsel was ineffective because he failed to file an appeal. This is
not a permissible basis for relief under I.C.R. 35. By its express terms, Rule 35 permits a
defendant to challenge “a sentence that is illegal from the face of the record.” I.C.R. 35(a)
(emphasis added). This Court has held that a claim of ineffective assistance of counsel may not
be presented through a Rule 35 motion. State v. Warren, 135 Idaho 836, 842, 25 P.3d 859, 865
(Ct. App. 2001); State v. Johnson, 117 Idaho 650, 652, 791 P.2d 31, 33 (Ct. App. 1990).
       Brown cites State v. Peterson, 148 Idaho 610, 613, 226 P.3d 552, 555 (Ct. App. 2010) for
the proposition that this Court has not decided whether ineffective assistance of counsel claims
may be raised in a Rule 35 motion. Peterson did not impliedly abrogate our prior decisions. The
decision merely noted that the Court need not address that issue because the ineffective
assistance claim was rejected on other grounds. Moreover, Peterson does not support Brown’s
claim. In that case, we held that “even if I.C.R. 35 was a proper vehicle for presentation of [the
defendant’s] claim of ineffective assistance of counsel in sentencing proceedings, the motion was
untimely under that rule.” The Court then held that, assuming Rule 35 could be a proper vehicle
to bring an ineffective assistance claim, it would not amount to a claim that the sentence itself
was illegal under I.C.R. 35(a). Therefore, it would be considered under I.C.R. 35(b). A motion
under I.C.R. 35(b) would have to be filed within “120 days after the filing of a judgment of
conviction or within 120 days after the court releases retained jurisdiction.” Here, Brown was
convicted, sentenced, and had his sentence reduced in 2002. He filed this Rule 35 motion in
2013. The time to file an I.C.R. 35(b) motion had long since expired. Accordingly, even
Peterson would bar Brown’s claim as untimely.
D.     Due Process Claim
       Brown next argues that due process of law required that he be charged under I.C. § 18-
3306, which states: 3




3
        It is not clear whether this claim was intended to be freestanding. Portions of Brown’s
briefing indicate that this claim should be considered as part of the ineffective assistance of
counsel claim because Brown intended that this due process issue be asserted as a claim on direct
appeal. Giving his brief a liberal reading, we consider this claim separately.


                                                6
               Any person who shall maim or injure any other person by the discharge of
       any firearm pointed or aimed, intentionally but without malice, at any such
       person, shall be guilty of a misdemeanor, and shall be punished by a fine of not
       less than fifty dollars ($50.00) nor more than one thousand dollars ($1,000), or
       imprisonment in the county jail for a period of not more than one (1) year; and if
       death ensue from such wounding or maiming, such person so offending shall be
       deemed guilty of the crime of manslaughter.

He argues that the words “shall be guilty of a misdemeanor” and “shall be punished” are
mandatory4 and restrict the State’s discretion in bringing criminal charges. He contends this
provision barred the State from prosecuting him for aggravated battery and that he has been
prejudiced because his sentence for aggravated battery exceeds the sentence permitted under I.C.
§ 18-3306.
       Brown’s claim is meritless. We have previously discussed the scope of the State’s
discretion in bringing charges:
               It is established in Idaho that a prosecutor has discretion in determining
       what charge to file against a defendant. Where the facts legitimately invoke more
       than one statute, a prosecutor is vested with a wide range of discretion in deciding
       what crime to prosecute. Prosecutors necessarily must choose between statutes
       with varying sentencing schemes each time a defendant’s actions satisfy the
       elements of more than one statute. The discretion of a prosecutor to choose
       between two statutes which proscribe the same conduct, but provide for different
       penalties, does not generally violate the state or federal constitution.

State v. Hernandez, 136 Idaho 8, 12, 27 P.3d 417, 421 (Ct. App. 2001) (internal citations and
marks omitted).
       The language in I.C. § 18-3306 and similar statutes does not constrain the prosecutor’s
discretion. The phrases “shall be guilty of a misdemeanor” and “shall be punished” cannot be
properly construed without considering the context. That language mandates the punishment



4
        We note that similar language appears in numerous Idaho statutes. See, e.g., I.C. § 18-
1511 (sale or barter of a child for adoption); I.C. § 18-2410 (fraudulent removal of serial
numbers); I.C. § 18-3105 (false statement by a commission merchant); I.C. § 18-3613
(simulation of car keys); I.C. § 18-3905 (transportation of hazardous waste); I.C. § 18-4626
(willful concealment of goods, wares or merchandise); I.C. § 18-5807 (polluting water by
leaving animal carcasses near highways, dwellings or streams); I.C. § 18-6713 (theft of
telecommunications services); I.C. § 18-6903 (pirating movies using a video recording device);
I.C § 18-7011 (criminal trespass).


                                                7
that must be imposed on a person who is convicted of committing the described crime. The
“shall” language does not restrict a prosecutor’s discretion in bringing charges.
                                                III.
                                         CONCLUSION
       Brown has not demonstrated any error in the court’s denial of his Rule 35 motion. His
double jeopardy claims are contradicted by prior Idaho law, he is not permitted to raise an
ineffective assistance of counsel claim through a Rule 35 Motion, and he is not entitled to be
charged under a different statute. Therefore, the order denying the motion is affirmed.
       Chief Judge GUTIERREZ and Judge GRATTON CONCUR.




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