Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Thomas J. Ryan, District Judge.
The opinion of the court was delivered by: Schwartzman, Judge Pro Tem
Abelardo Dominguez Gomez appeals from the restitution order for costs of prosecution and investigation entered upon his guilty plea to conspiracy to traffic in cocaine and two counts of trafficking in cocaine. We vacate said order.
Following a six-month investigation which included several controlled buys where Gomez sold almost eight pounds of cocaine to a confidential informant, Gomez was charged with one count of conspiracy to traffic in cocaine, Idaho Code §§ 18-1701, 37-2732B(a)(2), 37- 2732B(b), and eleven counts of trafficking in cocaine, I.C. § 37-2732B(a)(2).
At a status conference, the parties informed the court they had reached a plea agreement whereby Gomez would plead guilty to conspiracy to traffic in cocaine and two counts of trafficking in cocaine. The parties further agreed to an eight-year determinate sentence for each count, with the indeterminate portion left open for argument. The sentences were to run concurrently with each other and with a prior felony possession charge, and no additional federal or state charges would be filed. A "Conditional Plea of Guilty Pursuant to Idaho Criminal Rule 11 and Binding Plea Agreement" was signed by Gomez, his attorney, and the prosecutor, and was submitted to the court at the change of plea hearing. It made no reference to the issue of restitution. Gomez also completed a "Guilty Plea Advisory" form wherein he acknowledged, among other things, his understanding of the terms of the plea agreement that was attached to the form, that the agreement was binding if accepted by the court, and that if the district court did not impose the agreed upon sentences he would be allowed to withdraw his plea and proceed to a jury trial. In addition, he answered "no" to the question of whether he was aware that if he pled guilty he may be required to pay restitution to any other party as a condition of the plea agreement, but answered "yes" to the question of whether he was pleading guilty to a crime for which he "may be required" to pay the costs of prosecution and investigation pursuant to "I.C. § 37-2732A(K)."*fn1
With neither party nor the court mentioning the issue of restitution, the court accepted Gomez's guilty pleas pursuant to the plea agreement. At the subsequent sentencing hearing, the state first expressed its intention to make a restitution request which would include the approximately $57,000 of buy money Gomez received from the confidential informant. The court also indicated its understanding that the state would need time to submit a written restitution request. Gomez's attorney did not object to the implication that restitution would be imposed or offer any indication that the request was unexpected. The court imposed concurrent unified sentences of twenty-five years with eight years determinate on each of the three counts and again indicated that the state would be submitting an order of restitution, but that if there were a dispute as to the amount there would be a forty-two-day window in which Gomez could request a restitution hearing. A formal written "Judgment and Commitment" issued by the court nine days later reflected the terms of imprisonment, ordered Gomez to pay the minimum fine of $15,000 on each of the three counts,*fn2 and ordered "restitution pursuant to the restitution order." Approximately three weeks later, the district court entered an order pursuant to I.C. § 37-2732, requiring Gomez to pay, jointly and severally with his co-defendant father, the costs incurred by law enforcement which totaled approximately $130,000, $51,500 of which was unrecovered buy money. The order also stated that within forty-two days of the entry of the order of restitution, Gomez could object to or request relief from the order in accordance with the Idaho Rules of Civil Procedure. Gomez did not object to the order, request a restitution hearing, or move to withdraw his plea. He did, however, formally file a timely pro se notice of appeal, contending the restitution order constituted a breach of the plea agreement.
Gomez contends that the entry of the restitution order was a breach of the binding Rule 11 plea agreement he entered with the state and therefore, the restitution order must be vacated. The state counters that because Gomez did not object to the prosecutor's request for restitution for costs of investigation at the sentencing hearing, he did not preserve this claim for appeal and that even if he did, the state's request for restitution did not breach the plea agreement.
Generally, Idaho's appellate courts will not consider error not preserved for appeal through an objection at trial. State v. Perry, 150 Idaho 209, 245 P.3d 961, 976 (2010); State v. Johnson, 126 Idaho 892, 896, 894 P.2d 125, 129 (1995). This limitation on appellate court authority serves to induce the timely raising of claims and objections, which gives the trial court the opportunity to consider and resolve them. Puckett v. United States, ___ U.S. ___, ___, 129 S. Ct. 1423, 1428 (2009); Perry, 150 Idaho at 214, 245 P.3d at 976. Ordinarily, the trial court is in the best position to determine the relevant facts and to adjudicate the dispute. In the case of an actual or invited procedural error, the trial court can often correct or avoid the mistake so that it cannot possibly affect the ultimate outcome. Perry, 150 Idaho at 214, 245 P.3d at 976.
However, every defendant has a Fourteenth Amendment right to due process and it is axiomatic that a fair trial in a fair tribunal is a basic requirement of due process. Accordingly, when an error has not been properly preserved for appeal through objection at trial, the appellate court's authority to remedy that error is strictly circumscribed to cases where the error results in the defendant being deprived of his or her Fourteenth Amendment due process right to a fair trial in a fair tribunal. Id. See also State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007).
In Perry, our Supreme Court stated the analysis which applies in cases of unobjected-to error:
(1) the defendant must demonstrate that one or more of the defendant's unwaived constitutional rights were violated; (2) the error must be clear or obvious, without the need for any additional information not contained in the appellate record, including information as to whether the failure to object was a tactical decision; and (3) the defendant must demonstrate that the error affected the defendant's substantial rights, meaning (in most ...