State v. Custodio ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 48581
STATE OF IDAHO, )
) Filed: December 21, 2021
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
ELIAS MANUEL CUSTODIO, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Nancy A. Baskin, District Judge.
Order granting in part and denying in part I.C.R. 35 motion, affirmed.
Elias Manuel Custodio, Boise, pro se appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.
________________________________________________
BRAILSFORD, Judge
Elias Manuel Custodio appeals the district court’s order concluding it lacked jurisdiction
to consider the portion of his Idaho Criminal Rule 35 motion challenging the decision of the
Commission of Pardons and Parole (Commission) denying his parole. Because the court lacked
jurisdiction to review Custodio’s parole denial, we affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted Custodio of voluntary manslaughter, Idaho Code § 18-4006(1);
involuntary manslaughter, I.C. § 18-4006(2); aggravated battery, I.C. §§ 18-903(a), 18-
907(1)(b); and burglary, I.C. § 18-1401. The jury also found Custodio used a deadly weapon
during the course of the first three offenses, resulting in a sentencing enhancement for those
offenses, I.C. § 19-2520. In February 1999, the district court imposed aggregate concurrent
sentences of thirty years with fifteen years determinate.
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Custodio appealed. This Court affirmed the judgments of conviction and the sentences
for voluntary manslaughter and burglary. State v. Custodio, 136 Idaho 197, 209, 30 P.3d 975,
987 (Ct. App. 2001). The Court, however, concluded Custodio’s convictions for voluntary
manslaughter, involuntary manslaughter, and aggravated battery all arose out of the same
indivisible course of conduct. Id. at 208, 30 P.3d at 986. As a result, this Court held the district
court erred by enhancing Custodio’s sentences under I.C. § 19-2520 for involuntary
manslaughter and aggravated battery and remanded the case for resentencing. Custodio, 136
Idaho at 208, 30 P.3d at 986. On remand, the district court imposed unified sentences of ten
years determinate for involuntary manslaughter and fifteen years with five years determinate for
aggravated battery.
Nineteen years later, in 2020, Custodio filed a pro se Rule 35 motion, arguing his
sentences were illegal. Custodio’s motion primarily criticized the Commission’s decision not to
parole him after he served the fifteen-year determinate portion of the aggregate thirty-year
sentence. The State opposed the motion with one exception. The State acknowledged
Custodio’s fifteen-year determinate sentence for burglary was illegal on its face because it
exceeded the statutory maximum sentence of ten years.
The district court agreed with the State that Custodio’s sentence for burglary exceeded
the statutory maximum and was illegal on its face, and it entered an order correcting the error
and sentenced Custodio to ten years determinate for burglary. The district court, however,
concluded that, to the extent Custodio’s motion requested discretionary reductions of his other
sentences, his motion was untimely under Rule 35(b) and that the court lacked jurisdiction to
review the Commission’s parole decision. Custodio timely appeals, contending the Unified
Sentencing Act “is an illegal statute.”
II.
STANDARD OF REVIEW
Pursuant to Rule 35, the district court may correct an illegal sentence at any time. 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). Likewise,
jurisdiction is a question of law that is reviewed de novo. State v. Lute, 150 Idaho 837, 839, 252
P.3d 1255, 1257 (2011).
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III.
ANALYSIS
Custodio asserts the Unified Sentencing Act, I.C. § 19-2513, is an illegal statute causing
“systemic bias and racial disparity.” According to Custodio, members of minority populations
more often have parole denials and, as a result, serve more indeterminate prison time than
Caucasians. Based on this assertion, he contends his sentence is illegal under Rule 35. The State
argues a Rule 35 motion is not the “appropriate vehicle” to address Custodio’s contention that he
and other members of minority populations have experienced racial discrimination under the
Act. Moreover, the State argues the district court did not have jurisdiction to review Custodio’s
parole denial under Rule 35. We agree with the State.
Under Rule 35(a), an illegal sentence is “a sentence that is illegal from the face of the
record,” and the court may correct such a sentence at any time. 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 or where new evidence tends to show that the original sentence was excessive.” State v.
Clements, 148 Idaho 82, 86, 218 P.3d 1143, 1147 (2009).
Contrary to Rule 35(a), Custodio does not claim his sentences exceed any statutory limit
and his claim that his sentences are illegal under the Act is not obvious from the face of the
record. Rather, Custodio’s claim of illegality is that, under the Act, he has served indeterminate
prison time due to racial animus allegedly underlying the Commission’s parole decisions.
Rule 35 is not the appropriate procedure to make this challenge, however. The Idaho Supreme
Court in State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007), noted the Commission
“is vested with the discretion to grant or deny parole at any time after the completion of the
determinate portion of a defendant’s sentence.” As a result, it ruled that courts cannot intrude on
this discretion when reviewing a sentence. Id.; see also State v. Alvarado, ___ Idaho ___, ___,
481 P.3d 737, 750 (2021) (noting courts cannot intrude on Commission’s discretion). The Court
has also cautioned against judicially reviewing “a defendant’s rehabilitative progress” beyond
the 120-day jurisdiction limit imposed by Rule 35(b), noting such a review would “clearly
violate the separation of powers” and encroach on “the pardoning and paroling authority of the
executive branch” and “the power of the legislature to establish suitable punishment.” Brandt v.
State, 118 Idaho 350, 352, 796 P.2d 1023, 1025 (1990). Accordingly, the district court lacked
jurisdiction under Rule 35 to review the Commission’s decision to deny Custodio parole and
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require him to serve time under the indeterminate portion of his sentence or to challenge the Act
as illegal.
IV.
CONCLUSION
We affirm the district court’s order granting in part and denying in part Custodio’s
Rule 35 motion.
Judge GRATTON and Judge Pro Tem MELANSON CONCUR.
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