State v. Harrod ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 48842
STATE OF IDAHO, )
) Filed: February 23, 2022
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
LLOYD HARRISON HARROD, III, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)
Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon
County. Hon. Gene A. Petty, District Judge.
Order denying Idaho Criminal Rule 35 motion to correct an illegal sentence,
affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Jacob L. Westerfeld,
Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.
________________________________________________
HUSKEY, Judge
Lloyd Harrison Harrod, III appeals from the district court’s order denying his Idaho
Criminal Rule 35 motion to correct an illegal sentence. Harrod argues his sentence for aggravated
assault with a weapon enhancement illegally subjected him to multiple sentencing enhancements
for the use of a firearm. For the reasons set forth below, we affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Harrod pleaded guilty to aggravated assault on a law enforcement officer, Idaho Code
§§ 18-915, 18-901, 18-905, with a firearm enhancement, I.C. § 19-2520; eluding a peace officer,
I.C. § 49-1404(2); and unlawful possession of a firearm I.C. § 18-3316. The district court imposed
a unified term of incarceration of twenty-five years, with eight years determinate, for aggravated
assault on a law enforcement officer with a firearm, and a five-year determinate sentence for both
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the eluding a peace officer charge and the unlawful possession of a firearm charge. The district
court ordered the sentences to run concurrently. Harrod appealed, arguing that his sentences are
excessive. In an unpublished opinion, this Court affirmed Harrod’s judgment of conviction and
sentences. State v. Harrod, Docket No. 45988 (Ct. App. Jan. 18, 2019).
Harrod filed an I.C.R. 35 motion arguing the weapon enhancement applied to his
aggravated assault sentence is illegal because he was subjected to multiple sentencing
enhancements for the use of a firearm. The district court denied Harrod’s motion, finding that
Harrod was not subjected to multiple sentences for his use of a firearm. Harrod filed a motion to
reconsider which was denied. Harrod timely appeals.
II.
ANALYSIS
Harrod argues the district court erred by denying his I.C.R. 35 motion to correct an illegal
sentence because the weapon enhancement that was applied to Harrod’s aggravated assault
sentence resulted in multiple punishments for the same offense. In an appeal from the denial of a
motion under I.C.R. 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).
Idaho Code § 19-2520 authorizes a sentencing enhancement for use of a weapon for certain
enumerated offenses, including aggravated assault. Section 19-2520 provides, in relevant part:
Any person convicted of a violation of sections 18-905 (aggravated assault
defined) . . . who displayed, used, threatened, or attempted to use a firearm or other
deadly weapon while committing or attempting to commit the crime, shall be
sentenced to an extended term of imprisonment. The extended term of
imprisonment authorized in this section shall be computed by increasing the
maximum sentence authorized for the crime for which the person was convicted by
fifteen (15) years.
....
This section shall apply even in those cases where the use of a firearm is an
element of the offense.
The constitutional prohibition against double jeopardy provides protection against: (1) a
second prosecution for the same offense after acquittal; (2) a second prosecution for the same
offense after conviction; and (3) 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). The Idaho Supreme Court has held that the sentencing enhancement provided in
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I.C. § 19-2520 does not prescribe a separate offense, but authorizes courts to impose enhanced
sentences for certain offenses. State v. Passons, 163 Idaho 643, 646, 417 P.3d 240, 243 (2018);
State v. Smith, 103 Idaho 135, 137, 645 P.2d 369, 371 (1982). An enhanced sentence does not
place the defendant in new jeopardy but instead imposes a harsher penalty for the underlying
offense. Passons, 163 Idaho at 648, 417 P.3d at 245.
Mindful of Passons and that I.C. § 19-2520 provides that the enhancement applies “even
in those cases where the use of a firearm is an element of the offense,” Harrod asserts that the
district court imposed an illegal sentence because the offense of simple assault was enhanced twice
for his use of a firearm. Harrod has not shown error in the district court’s decision. In its order
denying Harrod’s I.C.R. 35 motion, the district court applied Passons and concluded:
Defendant’s sentence is not illegal because he was not subjected to multiple
sentences for the same offense for using a firearm. Defendant’s assertion that he
was charged with the crime of assault and, because he used a firearm in the
commission of the assault, the charge was enhanced to an aggravated assault is
incorrect. By definition, Defendant committed the crime of aggravated assault by
his use of a firearm during the assault pursuant to I.C. § 18-905(a). His sentence
for aggravated assault was then enhanced because of his use of a firearm during the
aggravated assault. This enhancement did not create a new crime but it did
authorize the Court to impose a harsher penalty.
Because Harrod has not shown error in the district court’s ruling, we affirm the district
court’s denial of Harrod’s I.C.R. 35 motion for correction of an illegal sentence.
III.
CONCLUSION
The district court properly concluded Harrod’s sentence is not illegal. Thus, the district
court’s order denying Harrod’s I.C.R. 35 motion for correction of an illegal sentence is affirmed.
Chief Judge LORELLO and Judge GRATTON CONCUR.
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