                 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 47359

    STATE OF IDAHO,                               )
                                                  )    Filed: August 21, 2020
          Plaintiff-Respondent,                   )
                                                  )    Melanie Gagnepain, Clerk
    v.                                            )
                                                  )    THIS IS AN UNPUBLISHED
    VALENTIN ALEX HERRERA,                        )    OPINION AND SHALL NOT
                                                  )    BE CITED AS AUTHORITY
          Defendant-Appellant.                    )
                                                  )

         Appeal from the District Court of the Fifth Judicial District, State of Idaho, Cassia
         County. Hon. Jonathan P. Brody, District Judge.

         Order denying I.C.R. 35 motion for correction of an illegal sentence, affirmed.

         Valentin Alex Herrera, Boise, pro se appellant.

         Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney
         General, Boise, for respondent.
                   ________________________________________________

LORELLO, Judge
         Valentin Alex Herrera appeals from an order denying his I.C.R. 35 motion for correction
of an illegal sentence. We affirm.
                                                  I.
                      FACTUAL AND PROCEDURAL BACKGROUND
         Herrera was found guilty of battery on a peace officer under former I.C. § 18-915(d)
(2001)1 and a persistent violator sentencing enhancement, I.C. § 19-2514. The battery occurred



1
        At the time of Herrera’s conviction, I.C. § 18-915(d) made it a felony for the commission
of a battery as defined in I.C. § 18-903, with the exception of unlawful touching as described in
I.C. § 18-903(b), “against the person of a peace officer, sheriff or police officer because of the
victim’s former or present official status.” Former I.C. § 18-915(d) is currently codified under
I.C. § 18-915(3).



                                                  1
while both Herrera and the victim, a former Cassia County sheriff’s deputy, were incarcerated in
the Cassia County Jail on unrelated charges. Herrera was sentenced to a unified term of thirty
years, with a minimum period of confinement of ten years. About ten years later, Herrera moved
under I.C.R. 35(a) to correct an illegal sentence, arguing that his sentence is illegal because the
victim had “forfeited his public office” due to a felony conviction and should not have been
considered a former peace officer. The district court denied Herrera’s motion because it focused
on matters outside the record. Herrera appeals.
                                                  II.
                                   STANDARD OF REVIEW
       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).
                                                III.
                                           ANALYSIS
       Herrera argues that the district court erred by denying his Rule 35 motion. Specifically,
Herrera contends that his sentence is illegal because the victim, a former sheriff’s deputy, was not
a former peace officer for purposes of I.C. § 18-915(d). The State responds that res judicata bars
Herrera from relitigating whether the victim was a former peace officer2 and that the district court
properly denied Herrera’s motion for alleging facts outside the record. We hold that Herrera has
failed to show error in the denial of his Rule 35 motion.
       A motion to correct an illegal sentence may be brought at any time. I.C.R. 35(a). However,
Rule 35(a) is a “narrow rule,” and because an illegal sentence may be corrected at any time, the
authority conferred by Rule 35(a) should be limited to uphold the finality of judgments. State v.
Farwell, 144 Idaho 732, 735, 170 P.3d 397, 400 (2007). In the context of Rule 35(a) the term
“illegal sentence” 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. State v.


2
         We decline to consider the State’s argument that res judicata bars Herrera from arguing
that the victim was not a former peace officer. The State did not assert this argument before the
district court. Consequently, we will not address it for the first time on appeal. State v. Garcia-
Rodriguez, 162 Idaho 271, 275, 396 P.3d 700, 704 (2017).

                                                  2
Clements, 148 Idaho 82, 87, 218 P.3d 1143, 1148 (2009). The purpose of Rule 35(a) is to allow
courts to correct illegal sentences, not to reexamine errors occurring at trial or before the imposition
of the sentence. State v. Wolfe, 158 Idaho 55, 65, 343 P.3d 497, 507 (2015). Therefore, Rule 35(a)
“only applies to a narrow category of cases in which the sentence imposes a penalty that is simply
not authorized by law.” Clements, 148 Idaho at 86, 218 P.3d at 1147.
        Before the district court, Herrera argued that his sentence is illegal because the victim had
“forfeited all public offices” under I.C. § 18-310 after being convicted of a felony. Idaho Code
Section 18-310(1) provides, in pertinent part:
        A sentence of custody to the Idaho state board of correction suspends all the civil
        rights of the person so sentenced, including the right to refuse treatment authorized
        by the sentencing court, and forfeits all public offices. . . .
(Emphasis added.) According to Herrera, the “forfeiture of all public offices” includes forfeiture
of an individual’s status as a former peace officer for purposes of I.C. § 18-915(d) and, therefore,
his conviction for battery on a peace officer is unlawful because the victim had forfeited his status
as a former peace officer before the battery. To support his argument, Herrera attached exhibits
to his supporting memorandum, including copies of documents purporting to be the victim’s oath
of office as a law enforcement officer and portions of a transcript of Herrera’s trial. The district
court denied Herrera’s Rule 35(a) motion because it was “based on facts or assertions clearly
outside the face of the record.”3
        Herrera asserts that the district court erred because resolving his Rule 35(a) motion entails
neither significant questions of fact nor requires an evidentiary hearing. We disagree. Resolving
Herrera’s Rule 35(a) motion requires a significant factual finding that cannot be determined from
the face of the judgment--whether the victim had been sentenced to the custody of the Idaho
Department of Correction before the battery. Making this factual determination would require
reexamination of not only the facts surrounding the battery, but also the victim’s criminal history.
Such an inquiry and factual determination exceeds the scope of a trial court’s authority under a



3
        The district court also concluded that, to the extent Herrera’s motion sought relief under
I.C.R. 35(b), his motion was untimely. On appeal, Herrera arguments relate only to I.C.R. 35(a).
Thus, Herrera has waived any error associated with the district court’s conclusion that Herrera is
time-barred from relief under I.C.R. 35(b).

                                                   3
Rule 35(a) motion. See Clements, 148 Idaho at 87, 218 P.3d at 1148. Consequently, Herrera has
failed to show that the district court erred in denying his Rule 35(a) motion.
       Moreover, defendants cannot attack their underlying conviction through a Rule 35(a)
motion. Housley v. State, 119 Idaho 885, 889, 811 P.2d 495, 499 (Ct. App. 1991). Accordingly,
a Rule 35(a) motion is not a proper vehicle to assert an argument that a sentence is illegal because
the underlying conviction is illegal. Housley, 119 Idaho at 889, 811 P.2d at 499. The essence of
Herrera’s challenge to the legality of his sentence arises from an attack on his underlying
conviction. That is, Herrera argues his sentence is illegal because he did not commit the crime of
battery on a peace officer. This argument falls outside the scope of a Rule 35 motion. See Housley,
119 Idaho at 889, 811 P.2d at 499.4
                                                IV.
                                         CONCLUSION
       Herrera’s Rule 35 motion raised significant factual issues that could not be resolved on the
face of the judgment. Consequently, Herrera has failed to show error in the denial of his motion.
Accordingly, the district court’s order denying Herrera’s Rule 35 motion is affirmed.
       Judge GRATTON and Judge BRAILSFORD, CONCUR.




4
        This argument was also effectively rejected by this Court in Herrera’s direct appeal. See
State v. Herrera, 152 Idaho 24, 29, 266 P.3d 499, 504 (Ct. App. 2011) (concluding that the trial
evidence was sufficient to show the victim was a former peace officer).

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