State v. Howell

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket Nos. 45927/45928

STATE OF IDAHO, )
) Filed: May 6, 2019
Plaintiff-Respondent, )
) Karel A. Lehrman, Clerk
v. )
) THIS IS AN UNPUBLISHED
KERRY ALLEN HOWELL, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)

Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. Hon. Richard S. Christensen, District Judge.

Appeal from order revoking probation, dismissed; judgment of conviction and
unified five-year sentence with two-year determinate term for unlawful
possession of a firearm, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Kimberly A. Coster,
Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent.
________________________________________________

Before GRATTON, Chief Judge; LORELLO, Judge;
and BRAILSFORD, Judge
________________________________________________

PER CURIAM
In cases consolidated for appeal, Kerry Allen Howell pled guilty to burglary, Idaho
Code § 18-1401 (Docket No. 45927), and unlawful possession of a firearm, I.C. § 18-3316
(Docket No. 45928). In the burglary case, the district court imposed a unified sentence of ten
years with a five-year determinate term, but after a period of retained jurisdiction, suspended the
sentence and placed Howell on probation. A report of probation violation was filed but the
district court returned Howell to probation. Howell subsequently violated probation by incurring
the unlawful possession of a firearm charge. Pursuant to a plea agreement, the district court

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revoked probation in the burglary case and imposed a concurrent unified sentence of five years
with a two-year determinate term for unlawful possession of a firearm. The district court
retained jurisdiction in both cases. Howell filed appeals in both cases, which were then
consolidated for appeal. Subsequent to filing his appeals, Howell completed retained jurisdiction
and the district court placed him on probation, suspending his sentences in both cases. On
appeal, “[m]indful of the fact he has since completed his court-ordered rider and is currently on
probation” Howell continues to assert that the district court erred in revoking probation in his
burglary case and in imposing an excessive sentence in his unlawful possession of a firearm case.
A case becomes moot when the issues presented are no longer live or the defendant lacks
a legally cognizable interest in the outcome. Murphy v. Hunt, 455 U.S. 478, 481 (1982);
Bradshaw v. State, 120 Idaho 429, 432, 816 P.2d 986, 989 (1991). Even where a question is
moot, there are three exceptions to the mootness doctrine: (1) when there is the possibility of
collateral legal consequences imposed on the person raising the issue; (2) when the challenged
conduct is likely to evade judicial review and thus is capable of repetition; and (3) when an
otherwise moot issue raises concerns of substantial public interest. State v. Barclay, 149 Idaho 6,
8, 232 P.3d 327, 329 (2010). The only relief Howell has requested on appeal cannot be granted
because Howell has been placed back on probation. Therefore, any judicial relief from this
Court would have no effect on either party. See id. Accordingly, Howell’s appeal from the order
revoking probation is dismissed.
Although Howell received the sentence he asked for, he asserts that the district court
erred in imposing an excessive sentence. The doctrine of invited error applies to estop a party
from asserting an error when his or her own conduct induces the commission of the error. State
v. Atkinson, 124 Idaho 816, 819, 864 P.2d 654, 657 (Ct. App. 1993). One may not complain of
errors one has consented to or acquiesced in. State v. Caudill, 109 Idaho 222, 226, 706 P.2d 456,
460 (1985); State v. Lee, 131 Idaho 600, 605, 961 P.2d 1203, 1208 (Ct. App. 1998). In short,
invited errors are not reversible. State v. Gittins, 129 Idaho 54, 58, 921 P.2d 754, 758 (Ct. App.
1996). This doctrine applies to sentencing decisions as well as rulings made during trial. State v.
Griffith, 110 Idaho 613, 614, 716 P.2d 1385, 1386 (Ct. App. 1986).
Therefore, because Howell received the sentence he agreed to, he may not complain that
the district court abused its discretion. Consequently, Howell’s judgment of conviction and

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suspended, unified sentence of five years with two years determinate for unlawful possession of
a firearm are affirmed.

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