               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 42247

STATE OF IDAHO,                                 )    2015 Unpublished Opinion No. 531
                                                )
       Plaintiff-Respondent,                    )    Filed: June 24, 2015
                                                )
v.                                              )    Stephen W. Kenyon, Clerk
                                                )
PATRICK EARL SUTTLE,                            )    THIS IS AN UNPUBLISHED
                                                )    OPINION AND SHALL NOT
       Defendant-Appellant.                     )    BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Lynn G. Norton, District Judge.

       Order denying motion to correct illegal sentence, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.



LANSING, Judge
       Patrick Earl Suttle appeals from the district court’s order denying his Idaho Criminal
Rule 35(a) motion to correct an illegal sentence. We affirm.
                                                I.
                                       BACKGROUND
       In 2009 Suttle pleaded guilty to attempted strangulation, Idaho Code § 18-923, and
misdemeanor battery, I.C. § 18-903(c). The district court imposed a unified ten-year sentence
with a three-year determinate term for attempted strangulation and a concurrent 180-day jail
sentence for battery, suspended the sentences, and placed Suttle on probation. Less than two
years later, the court found Suttle had violated his probation. The district court reinstated his
probation with additional conditions. In 2013, Suttle admitted to again violating several terms of


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the probation, and the district court consequently revoked probation and ordered execution of the
original sentences.
       In 2014, Suttle filed an I.C.R. 35(a) motion to correct an illegal sentence, contending that
misdemeanor battery is a lesser included offense of attempted strangulation and that imposition
of sentences for both violated his right to be free from double jeopardy. Suttle sought to vacate
his sentence for attempted strangulation. The district court denied the motion, concluding that
the information showed that the two offenses were predicated on different acts and that the
strictures on a Rule 35(a) inquiry precluded factual inquiry into whether the offenses were part of
one continuing event or transaction. 1 Suttle appeals.
                                                 II.
                                           ANALYSIS
       The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
and Article I, Section 13 of the Idaho Constitution both provide that no person shall be twice put
in jeopardy for the same offense. They afford a defendant three basic protections: protection
against a second prosecution for the same offense after acquittal, a second prosecution for the
same offense after conviction, and multiple criminal punishments for the same offense. Schiro v.
Farley, 510 U.S. 222, 229 (1994); State v. McKeeth, 136 Idaho 619, 622, 38 P.3d 1275, 1278
(Ct. App. 2001). It is the third of these that is at issue in this case. Suttle’s contention that his
multiple sentences violate constitutional protections against double jeopardy presents questions
of law over which we exercise free review. State v. Moad, 156 Idaho 654, 658, 330 P.3d 400,
404 (Ct. App. 2014); State v. Santana, 135 Idaho 58, 63, 14 P.3d 378, 383 (Ct. App. 2000).
       A claim that an illegal sentence has been imposed in violation of double jeopardy may be
brought pursuant to an I.C.R. 35(a) motion. See State v. McKinney, 153 Idaho 837, 841, 291
P.3d 1036, 1040 (2013). The scope of inquiry under the rule is, however, strictly limited. Idaho
Rule 35(a) expressly allows relief from sentences that are “illegal from the face of the record.”
Our Supreme Court has made clear that under the rule a trial court cannot examine the
underlying facts of a crime to which a defendant pled guilty to determine if the sentence is
illegal. State v. Wolfe, 158 Idaho 55, 65, 343 P.3d 497, 507 (2015); State v. Clements, 148 Idaho

1
       The district court further stated that even if double jeopardy were implicated, the court
would vacate the misdemeanor sentence and not the felony. While we need not reach the issue
here, we note that Suttle has cited no authority giving to the defendant the option of which
sentence to vacate.
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82, 84-87, 218 P.3d 1143, 1145-48 (2009). Under the rule, an “illegal sentence” is one that is
illegal from the face of the record, does not involve significant questions of fact, and does not
require an evidentiary hearing. Id. at 86, 218 P.3d at 1147. A trial court’s review of a transcript
of a court proceeding to determine the legality of a sentence has been held to be error as in
excess of the court’s authority under Rule 35. Clements, 148 Idaho at 87-88, 218 P.3d at 1148-
49. In short, Rule 35(a) inquiries must involve only questions of law--they may not include
significant factual determinations to resolve the merits of the claim. Wolfe, 158 Idaho at 65, 343
P.3d at 507.
       Suttle first contends that imposition of multiple sentences violate the Idaho Constitution’s
double jeopardy prohibition. The Idaho Supreme Court has analyzed potential violations of the
Double Jeopardy Clause of the Idaho Constitution using a different set of criteria than violations
of the Double Jeopardy Clause of the United States Constitution. McKinney, 153 Idaho at 841,
291 P.3d at 1040; State v. Thompson, 101 Idaho 430, 434-35, 614 P.2d 970, 974-75 (1980);
Moad, 156 Idaho at 658 n.3, 330 P.3d at 404 n.3. Idaho applies a pleading theory to determine
whether a violation of the Idaho Double Jeopardy Clause had occurred. Thompson, 101 Idaho at
433-35, 614 P.2d at 973-75. Under the pleading theory, as laid out in Thompson, a lesser
included offense is one “alleged in the information as a means or element of the commission of
the higher offense.” Id. at 434, 614 P.2d at 974. See also McKinney, 153 Idaho at 841, 291 P.3d
at 1040; Moad, 156 Idaho at 658 n.3, 330 P.3d at 404 n.3. Because the pleading theory relies on
an examination of the charging information, it generally provides a broader definition of greater
and lesser included offenses than does the federal statutory elements test set out in Blockburger
v. United States, 284 U.S. 299, 304 (1932). Thompson, 101 Idaho at 433-34, 614 P.2d at 973-74;
Moad, 156 Idaho at 658, 330 P.3d at 404; State v. Corbus, 151 Idaho 368, 373, 256 P.3d 776,
781 (Ct. App. 2011).
       Suttle’s claim of a violation under the Idaho Constitution fails on the merits. The
information in this case stated:
                                          COUNT I
       That the Defendant, PATRICK E. SUTTLE, on or about the 10th day of March,
       2009, in the County of Ada, State of Idaho, did willfully and unlawfully choke or
       attempt to strangle the person of [victim], to-wit: by placing his hands around
       [victim’s] neck and squeezing, and where [victim] and the Defendant are
       household members or have had a dating relationship.
       ....

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                                          COUNT IV
       That the Defendant, PATRICK E. SUTTLE, on or about the 10th day of March,
       2009, in the County of Ada, State of Idaho, did unlawfully and intentionally cause
       bodily harm, to-wit: by causing bruising on [victim’s] arms, face, and contusions
       to [victim’s] head.

These allegations show that the crimes were predicated on separate and different acts and that the
misdemeanor battery charge was thus not the means or element of the commission of the greater
attempted strangulation offense. No multiple punishment double jeopardy violation under the
Idaho Constitution has been shown.
       Suttle next contends that imposition of multiple sentences violates the United States
Constitution’s double jeopardy prohibition. Determining whether a defendant’s prosecution or
conviction and punishment for two offenses violates the Fifth Amendment’s Double Jeopardy
Clause requires application of the test set out in Blockburger. Under that analysis, courts
initially look to the statutory elements of the offenses to ascertain whether two offenses are
involved, or only one. If the statutory definition of each crime requires proof of an additional
element that the other does not, they constitute separate offenses. Id. If two offenses have been
determined to be a single offense under this Blockburger test, then convicting and punishing a
defendant for both is a violation of the Double Jeopardy Clause. Brown v. Ohio, 432 U.S. 161,
168-69 (1977); Moad, 156 Idaho at 658, 330 P.3d at 404.
       This Court has previously determined that under the Blockburger test the crime of
misdemeanor battery as defined in I.C. § 18-903(a) or (b) is a lesser included offense of
attempted strangulation. See State v. Moffat, 154 Idaho 529, 532, 300 P.3d 61, 64 (Ct. App.
2013). However, even if the same holds true for misdemeanor battery as defined in I.C. § 18-
903(c), with which Suttle was charged, that does not end the inquiry. It cannot be determined
whether a defendant’s right to be free from double jeopardy has been violated solely by looking
at the statutes involved, for if the offenses are predicated upon different acts, at different times,
in different places, or against different victims, a defendant is not twice punished for the “same
offense.” Two offenses based on different acts can, however, be the same offense, for it is
generally held that when a person commits multiple acts against the same victim during a single
criminal episode and each act could independently support a conviction for the same offense, for
purposes of double jeopardy the “offense” is typically the episode, not each individual act.
Brown, 432 U.S. at 169-70; Moad, 156 Idaho at 659-60, 330 P.3d at 405-06; Moffat, 154 Idaho at

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533, 300 P.3d at 65. Thus, to determine whether the federal double jeopardy prohibition has
been violated, it is necessary to determine whether the charges are for distinct crimes rather than
inseparable parts of a single criminal episode. Here, the information reveals that the two crimes
were alleged to have occurred on the same day against the same victim, but the pleading does not
disclose whether they were inseparable parts of a single criminal episode. Thus, one cannot
determine from the pleadings that the crimes are the “same offense” for double jeopardy
purposes. It follows that a factual inquiry is necessary to determine whether the crimes were part
of one continuing event or transaction. Moad, 156 Idaho at 659-60, 330 P.3d at 405-06; Moffat,
154 Idaho at 532, 300 P.3d at 64.
       This need for a factual inquiry defeats Suttle’s Rule 35 motion to correct an illegal
sentence. In an attempt to show that his crimes were part of one continuing event or transaction,
Suttle relies on reports and statements in his presentence investigation report. But as noted
above, our Supreme Court has directed that such a factual inquiry cannot be made on a motion
bought under I.C.R. 35(a). Under the strictures of a Rule 35(a) inquiry, Suttle has not shown that
his sentences violate the Fifth Amendment’s Double Jeopardy Clause.
       Accordingly, the district court’s order denying Suttle’s motion for relief from an illegal
sentence is affirmed.
       Judge GUTIERREZ and Judge GRATTON CONCUR.




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