Appeal from the District Court of the First Judicial District of the State of Idaho, in and for Bonner County. The Hon. John P. Luster, District Judge.
The opinion of the court was delivered by: Eismann, Chief Justice.
The judgment of the district court is affirmed.
The appellant contends that the district court erred in ruling that it did not have authority to order the Idaho Department of Correction to return a prior presentence investigation report and that it abused its discretion in imposing sentence. We affirm.
I. FACTS AND PROCEDURAL HISTORY
Walter E. Moore was charged with lewd conduct with a child under sixteen years by an information alleging that Moore had oral-genital, manual-genital, and/or genital-anal contact with a six-year-old boy with the intent to arouse, appeal to, or gratify Moore‟s lust, passion, or sexual desire in violation of Idaho Code § 18-1508. On June 5, 2003, Moore pled guilty to the charge, although he denied penetrating the boy anally. The plea agreement provided that the State would not file additional charges regarding the same victim; that the State would recommend a sentence of at least fifteen years incarceration up to life; and that the prosecuting attorney would encourage the United States Attorney not to file additional federal charges against Moore.
Moore submitted to a psychosexual examination in preparation for the sentencing. The report regarding that examination was included in his presentence investigation report (PSI) and was considered by the court. On September 2, 2003, the district court sentenced Moore to incarceration for life, with fifteen years fixed and the balance indeterminate. Moore appealed, and the Idaho Court of Appeals affirmed his conviction and sentence in an unpublished opinion.
Moore later filed a petition for post-conviction relief. Based upon this Court‟s opinion in Estrada v. State, 143 Idaho 558, 149 P.3d 833 (2006),*fn1 Moore‟s sentence was vacated for ineffective assistance of counsel with respect to his psychosexual examination. Moore submitted to a new psychosexual examination, and a new PSI was prepared. The 2003 PSI, which included the first psychosexual examination report, was sealed and was not reviewed by the sentencing judge, which was not the same judge who had previously sentenced Moore.
After Moore was sentenced the first time, a copy of his 2003 PSI was delivered to the Idaho Department of Correction. Before Moore‟s resentencing, his attorney asked the district court to order the Department to return its copy of that PSI to keep it from being taken into account when Moore was considered for parole. The court denied the request stating that it had no authority to order the Department to return the PSI. The court sentenced Moore to life in prison, with thirteen years fixed, and Moore appealed.
A. Did the district court err in denying Moore‟s motion to order the Department of Correction to return the 2003 PSI?
B. Did the district court abuse its discretion in imposing sentence?
A. Did the District Court Err in Denying Moore's Motion to Order the Department of ...