State v. Gerald Byron Cummings, Jr. ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 42917
STATE OF IDAHO, ) 2015 Unpublished Opinion No. 712
)
Plaintiff-Respondent, ) Filed: November 16, 2015
)
v. ) Stephen W. Kenyon, Clerk
)
GERALD BYRON CUMMINGS, JR., ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
Falls County. Hon. G. Richard Bevan, District Judge.
Order denying I.C.R. 35(a) motion for correction of an illegal sentence, affirmed.
Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent.
________________________________________________
Before MELANSON, Chief Judge; GRATTON, Judge;
and HUSKEY, Judge
________________________________________________
PER CURIAM
Gerald Byron Cummings, Jr. pled guilty to possession of methamphetamine. Idaho Code
§ 37-2732(c)(1). The district court sentenced Cummings to a unified term of four years with one
year determinate (2012 case), to run consecutively to Cumming’s existing sentence (2008 case).
Nearly two years later, Cummings filed an Idaho Criminal Rule 35(a) motion for correction of an
illegal sentence in the 2012 case, which was denied by the district court. Cummings appeals
alleging that the sentence imposed in 2012 was illegal since at that time he was on parole for the
2008 case, and not incarcerated, the district court did not have the authority to order the 2012
sentence be served consecutively to the 2008 sentence.
1
Cummings contends that pursuant to I.C. § 18-308, as construed by State v. Bello, 135
Idaho 442, 445, 19 P.3d 66, 69 (Ct. App. 2001), the 2012 sentence could not be ordered
consecutive to the 2008 sentence. However, as Cummings acknowledges, in State v. Calley, 140
Idaho 663, 665, 99 P.3d 616, 618 (2004) and State v. Cisneros-Gonzalez, 141 Idaho 494, 496,
112 P.3d 782, 784 (2004), the Idaho Supreme Court abrogated Bello and held that I.C. § 18-308
did not apply and that the district court could order the second sentence to run separately from
the prison sentence. Therefore, the district court’s order denying Cummings’ Rule 35(a) motion
is affirmed.
2