               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                    Docket Nos. 40159/40160

STATE OF IDAHO,                                  )      2013 Unpublished Opinion No. 704
                                                 )
       Plaintiff-Respondent,                     )      Filed: October 9, 2013
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
CHRISTOPHER LEE LAY,                             )      THIS IS AN UNPUBLISHED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. Cheri C. Copsey, District Judge.

       Judgment of conviction and sentence for attempted strangulation, affirmed.
       Sentence for intimidating a witness, vacated and case remanded.

       Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       In this consolidated appeal, Christopher Lee Lay appeals from the judgments of
conviction in two cases that were consolidated in the trial court. Lay argues that the trial court
impermissibly applied the persistent violator enhancement to his sentence in one case because
the State did not charge him with being a persistent violator of the law in that case. In the other
case, he admits that it was proper to sentence him as a persistent violator, but contends that the
sentence is excessive.
                                                I.
                                        BACKGROUND
       On November 17, 2011, the State filed an information charging Lay with attempted
strangulation, a felony, Idaho Code § 18-923, and domestic battery in the presence of children, a
misdemeanor, I.C. §§ 18-918(3)(b), 18-918(4). In that same case, the State filed an information


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part II alleging that Lay had committed two prior felonies and was, therefore, a persistent
violator of the law under I.C. § 19-2514. While charges in this first case were pending, the State
came to believe that Lay had improperly communicated with a witness in that case. Based upon
those communications, the State filed a new complaint with a new case number charging Lay
with felony intimidating a witness, I.C. § 18-2604(3). At the preliminary hearing in the second
case, the State sought and obtained an order consolidating the two cases. The information in the
second case did not allege that Lay was a persistent violator of the law.
        The consolidated cases proceeded to a jury trial. Lay was found guilty of attempted
strangulation, domestic battery in the presence of a child, and intimidating a witness. Thereafter,
the jury was instructed regarding the persistent violator allegation. These instructions repeatedly
referenced the persistent violator allegation as being applicable to the felony charges in both
cases. After deliberating, and on a verdict form listing both case numbers, the jury found that
Lay was a persistent violator of the law.
        At the sentencing hearing, the trial court made clear that the sentences in both cases were
enhanced by Lay’s persistent violator status. In the first case, Lay was sentenced to an aggregate
term of fifteen years’ imprisonment, with five years fixed and ten years indeterminate for the
attempted strangulation, and to time served on the domestic battery charge. In the second case,
Lay was sentenced to a successive five-year indeterminate term of imprisonment. The written
judgments of conviction reiterated that the sentences in both cases were “enhanced by the
persistent violator charge.”
        Lay appeals, contending that the court erred by applying a persistent violator
enhancement to his sentence in the second case and by declining to grant probation in either
case.
                                                II.
                                            ANALYSIS
        Lay argues that he was improperly denied due process of law in the witness intimidation
case when the trial court applied a persistent violator sentence enhancement because there was
no allegation that he was a persistent violator in the charging information. Lay admits that the
court could have imposed the same sentence without a determination that he was a persistent
violator of the law, but argues that the error was not harmless because the trial court considered
the enhancement when crafting his sentence.


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A.     Imposing a Sentence Enhanced under the Persistent Violator Statute for the
       Intimidating a Witness Offense Constituted Fundamental Error
       The State admits that it did not charge Lay as a persistent violator in the second case and
that it was not proper to submit the persistent violator issue to the jury in that case. Nonetheless,
the State argues that Lay’s failure to object below is fatal to his claims on appeal. The record
shows that Lay did not object to the jury instruction or verdict form, which indicated that the
persistent violator enhancement would apply to both cases, or to the district court’s statement at
the sentencing hearing that sentences in both cases would be subject to the enhancement.
However, the failure to object is not fatal to Lay’s arguments on appeal.
       Generally, issues not raised below may not be considered for the first time on appeal.
State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). A claim of error to which no
objection was made below may be raised, however, if the issue presented rises to the level of
fundamental error. See State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007); State v.
Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262 (1971). In State v. Perry, 150 Idaho 209, 245
P.3d 961 (2010), the Idaho Supreme Court held that an appellate court should reverse an
unobjected-to error when the defendant persuades the court that the alleged error: (1) violates
one or more of the defendant’s unwaived constitutional rights; (2) is clear or obvious without the
need for reference to any additional information not contained in the appellate record, including
information as to whether the failure to object was a tactical decision; and (3) affected the
outcome of the trial proceedings. Id. at 226, 245 P.3d at 978. The Perry test applies to all claims
of error relating to proceedings in criminal cases. State v. Carter, 155 Idaho 170, 174, 307 P.3d
187, 191 (2013).
       As to the first prong of Perry, we must determine whether the alleged error amounts to a
violation of a constitutional right and whether that right was waived. Lay argues that he was
deprived of notice of the persistent violator enhancement in the second case. It is clear that lack
of notice in charging documents implicates due process rights with constitutional dimension. See
State v. Gerardo, 147 Idaho 22, 30, 205 P.3d 671, 679 (Ct. App. 2009); State v. Galaviz, 104
Idaho 328, 331, 658 P.2d 999, 1002 (Ct. App. 1983). In Gerardo, the defendant was charged
with burglary and attempted robbery. The indictment alleged a sentence enhancement for use of
a firearm in the commission of the burglary only, but a jury instruction and a special verdict form
asked the jury to determine whether Gerardo employed a firearm in the commission of “a crime,”
thus allowing application of the enhancement if the weapon was used in either the burglary or the

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attempted robbery. This Court found reversible error. We noted that although under I.C. § 19-
2520 the use of a firearm only enhances the defendant’s sentence and is not an element of the
underlying offense, constitutional constraints apply. We stated:
       [S]ection 19-2520 itself specifies that the enhancement may be imposed only if
       the use of a firearm in committing the crime “is separately charged in the
       information or indictment” and is either admitted by the accused or found to be
       true by the fact-finder. This provision of I.C. § 19-2520 conveniently ensures
       conformity with United States Supreme Court authority holding that the
       constitutional rights to due process and to a jury trial require that any fact that
       would subject an accused to an increased penalty beyond the otherwise applicable
       maximum must be treated, for purposes of pleading and proof, as an element of
       the offense rather than a mere sentencing factor. Thus, although a fact justifying
       an I.C. § 19-2520 sentence enhancement is not one of the statutory elements of
       the charged offense, it is required to be a component of the charging document
       and hence is subject to the strictures on amendments to the charging document.

Gerardo, 147 Idaho at 30-31, 205 P.3d at 679-80 (citations omitted). We concluded that the
challenged jury instruction and verdict form allowed application of the firearm enhancement if
the jury found that the defendant used a firearm in the attempted robbery, even though the
sentence enhancement was alleged in the indictment only as to the burglary. This, we said,
allowed additional punishment on the finding of additional facts that were not charged,
constituted a constructive amendment to the indictment, and was fundamental error. Id. at 31,
205 P.3d at 680.
       The scope of the right to notice and the issue of waiver, however, are more complicated.
In State v. Miller, 151 Idaho 828, 832, 264 P.3d 935, 939 (2011), Miller argued “that the district
court lacked subject matter jurisdiction to sentence him as a persistent violator because the
enhancement was not included in the information.” In that case, the State sought leave to amend
the charging document and the court granted leave, but the State never filed an amended
information. Instead, the State informed Miller that it was seeking an enhancement by filing a
document titled “Notice to Defendant” several months before he pled guilty to some of the
charged offenses and admitted to being a persistent violator. The Court noted that this did not
comply with Idaho Criminal Rule 7(c) 1 but held that the failure was not jurisdictional, but an




1
        Idaho Criminal Rule 7(c) sets forth the proper means of providing notice to a defendant
that the State intends to allege the persistent violator enhancement:

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issue of notice. Miller, 151 Idaho at 833, 264 P.3d at 940. Then, the Supreme Court held that
Miller waived the issue of notice by pleading guilty and admitting to the persistent violator
status, but also held that three months of notice before the beginning of trial would be sufficient
regardless of Miller’s plea. Id.   More particularly, the Court held that “[n]otice is a matter of
due process, and must be raised before trial or it is waived.” Id.
       If we applied the holding in Miller in this case, Lay’s failure to object would bar relief
because his right to notice would have been waived by his failure to raise this issue before trial.
But significant factual differences make Miller distinguishable and warrant a different legal
conclusion. First, while Miller had notice that the State would be seeking a persistent violator
enhancement long before trial, Lay was not on notice of the possibility of a persistent violator
enhancement in the second case until the jury was instructed. Second, while Miller pled guilty,
Lay’s cases proceeded to jury trial. In short, Miller had an opportunity to object and took an
affirmative step to waive this right by pleading guilty to the enhancement. Lay neither had an
opportunity to object before trial nor took any affirmative steps to waive his right. Accordingly,
we cannot find that the Miller ruling is applicable here.
       Because notice is an issue of constitutional import and because Lay did not waive his
right to notice, we must turn to the question of whether his right to notice was plainly violated.
The State argues that notice serves particular policy purposes which were not implicated in this
case. In general, the right to notice protects the ability to mount a proper defense. Id. at 832,
264 P.3d at 939; State v. Brazil, 136 Idaho 327, 331, 33 P.3d 218, 222 (Ct. App. 2001). In this
case, because he was charged as a persistent violator in the companion case, it is unlikely that
compliance with I.C.R. 7(c) in the witness intimidation case would have caused Lay to mount a
different defense. Lay had the opportunity to defend against the persistent violator charge, and it
is hard to imagine how his defense might have changed if he had been on notice that the
enhancement applied to the charge in the second case.
       Nonetheless, we hold that the notice given was insufficient and violated Lay’s rights. We
find the Supreme Court’s discussion in Miller is instructive. There, the Court was critical of the




               In all cases wherein an extended term of imprisonment is sought as the
       result of a prior conviction or convictions, the indictment or information shall set
       forth the facts on which the extended term of imprisonment is sought.

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State’s actions, explicitly stating that “[t]his case is not to be considered the best practice for
purposes of notice to a defendant of a persistent violator enhancement.” Miller, 151 Idaho at
833, 264 P.3d at 940. In this case, the State’s failure to provide notice was much greater. The
only allegation of a persistent violator enhancement was in a different case. The consolidation of
the two cases as a matter of convenience to avoid duplicative proceedings in the trial court ought
not eliminate Lay’s constitutional rights in the second case. As stated by the United States
Supreme Court, “Conviction upon a charge not made would be sheer denial of due process.”
DeJonge v. Oregon, 299 U.S. 353, 362 (1937).
       We also conclude that the error was plain. Because the proper procedure is set forth in
I.C.R. 7(c), noncompliance with the rule makes the error clear and obvious. Nothing in the
record suggests that the lack of objection in the trial court was a tactical decision of defense
counsel, and we cannot imagine any tactical basis to allow an uncharged sentence enhancement
to be applied.
       Finally, turning to the third prong of Perry, Lay cannot prevail if the error was harmless.
The State argues that any error was harmless because the sentence imposed in the second case
was within the statutory maximum for felony intimidating a witness without any sentence
enhancement.
       In past cases, our decision regarding harmlessness has sometimes turned upon the
statements of the trial court at sentencing. For example, in State v. Medrain, 143 Idaho 329, 333,
144 P.3d 34, 38 (Ct. App. 2006), the trial court stated that “the enhancements are a nonissue”
when sentencing the defendant. On that basis, we held that we did not need to vacate the
defendant’s sentence. See also State v. Harrington, 133 Idaho 563, 567, 990 P.2d 144, 148 (Ct.
App. 1999). Here, however, the trial court specifically said that the sentence was “enhanced as a
persistent violator,” but did not say precisely how that consideration affected the sentence.
Accordingly, we cannot say the error was harmless. See State v. Clark, 132 Idaho 337, 340-41,
971 P.2d 1161, 1164-65 (Ct. App. 1998). We therefore must remand for resentencing on the
intimidating a witness conviction.
B.     Sentence Review
       Lay also argues that the trial court abused its discretion by not placing him on probation
in the attempted strangulation case. He does not argue that his sentence is illegal, but that his
sentence was excessive because the trial court failed to adequately consider certain mitigating


                                                6
factors. He identifies as significant mitigating factors: the wishes of the victim who did not
want Lay to be imprisoned, Lay’s drug addiction, his acknowledgement that he was responsible
for his previous failure to comply with the conditions of probation and parole, his good behavior
in prison while these charges were pending, and his insight in requesting that the trial court bar
him from entering into or maintaining any romantic relationship for a period of years.
        An appellate review of a sentence is based on an abuse of discretion standard. State v.
Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal,
the appellant has the burden to show that it is unreasonable, and thus a clear abuse of discretion.
State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such
an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice,
103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it
appears at the time of sentencing that confinement is necessary “to accomplish the primary
objective of protecting society and to achieve any or all of the related goals of deterrence,
rehabilitation or retribution applicable to a given case.” State v. Toohill, 103 Idaho 565, 568, 650
P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed
an excessively harsh sentence, we conduct an independent review of the record, having regard
for the nature of the offense, the character of the offender, and the protection of the public
interest.   State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). When
reviewing the length of a sentence, we consider the defendant’s entire sentence. State v. Oliver,
144 Idaho 722, 726, 170 P.3d 387, 391 (2007).
        At sentencing, the trial court expressly considered the relevant sentencing factors, and
many of the mitigating considerations Lay now raises. The victim requested that Lay be given
“another chance.” She also claimed that she concocted a false story that Lay assaulted her and
that she was to blame for a wrongful conviction. Both the jury, in finding guilt, and the trial
court, at sentencing, rejected the victim’s new version of the facts. Rather, the court considered
the victim’s request for leniency for her abuser to be common in domestic violence situations.
The trial court also considered Lay’s drug use and agreed that his behavior may have been
exacerbated by substance abuse, but did not find that this was an appropriate basis to allow
probation. Nor did the court find that Lay’s acknowledgement that he repeatedly failed to
comply with the requirements of probation and parole warranted leniency. In the court’s view,
Lay’s acknowledgment of his history of noncompliance was not evidence that Lay had learned


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any lesson, but evidence that probation would not be an appropriate sentence because Lay was
unlikely to comply with the terms of probation.
       The record in this case indicates that Lay is a multiple offender, that he has previously
violated the terms of probation and parole, and that he has continued to commit crimes despite
being offered substantial treatment while in prison. An expert reported that Lay was a moderate
risk to reoffend. On this record, the district court did not err in its determination that Lay
presented “an undue risk that during any period of probation [he] would commit additional
crimes that may very well involve violence.” Lay has not shown that the district court abused its
discretion by sentencing him to a period of imprisonment.
                                              III.
                                        CONCLUSION
       Because the charging information did not allege a persistent violator enhancement on the
charge of intimidating a witness, and Lay received no notice that such an enhancement could be
imposed until the jury was instructed at the conclusion of his trial, we vacate that sentence and
remand for resentencing on that charge.       Lay’s judgment of conviction and sentence for
attempted strangulation is affirmed.
       Chief Judge GUTIERREZ CONCURS.
       Judge GRATTON CONCURS IN THE RESULT.




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