Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Deborah A. Bail, District Judge.
The opinion of the court was delivered by: Gutierrez, Judge
Judgment of conviction and unified sentence of twenty years, with three years determinate, for lewd conduct with a minor child under sixteen, affirmed.
Joseph Richard Clinton appeals from the judgment of conviction and sentence entered upon his guilty plea to lewd conduct with a minor child under sixteen. For the reasons set forth below, we affirm.
Sixty-seven-year-old Clinton was indicted for lewd conduct with a minor child under sixteen, Idaho Code § 18-1508, based on an incident where he lured a seven-year-old girl into his home and touched her inappropriately. Due to defense counsel's concerns, a competency evaluation was conducted by Dr. Craig Beaver, who initially deemed Clinton incompetent to stand trial. Dr. Beaver noted Clinton exhibited significant impairment and offered a probable diagnosis of dementia. However, in an amended evaluation, Dr. Beaver surmised Clinton was not as impaired as he initially perceived and was competent to stand trial. Pursuant to a plea agreement, Clinton pled guilty as charged in return for the State's agreement to recommend a twenty-five-year sentence and to recommend either probation or a period of retained jurisdiction if Clinton's psychosexual evaluation indicated he was amenable to treatment. The district court ordered a psychosexual evaluation and social/sexual assessment to be performed. Clinton stipulated his competency evaluations could be used in preparation of the psychosexual evaluation.
The psychosexual evaluation, performed by Dr. Michael Johnston, indicated Clinton was a high risk to reoffend, but was amenable to treatment. It also noted Clinton had difficulty comprehending and participating in the evaluation. At sentencing, Clinton's mental health was discussed by the parties at length. The district court refused Clinton's request for probation or a period of retained jurisdiction, citing its concern that Clinton's dementia reduced his ability to control his sexual impulses and his prospects of being rehabilitated. The district court imposed a unified sentence of twenty years, with three years determinate. Clinton filed a timely Idaho Criminal Rule 35 motion to reduce his sentence, which was denied. Clinton now appeals, contending the district court erred in failing to sua sponte order a psychological evaluation at sentencing and in imposing an excessive sentence.
Clinton contends the district court abused its discretion and acted in manifest disregard of the pertinent provisions of Idaho Criminal Rule 32 and Idaho Code § 19-2522 when it failed to sua sponte order a psychological evaluation of Clinton prior to sentencing. In the alternative, he argues the district court imposed an excessive sentence in light of his mental health issues.
A. Psychological Evaluation
Clinton contends the district court was required to sua sponte order an additional psychological evaluation (separate from the psychosexual evaluation) pursuant to Idaho Code § 19-2522 because the court had reason to believe Clinton's mental health, specifically his dementia, would be a significant factor at sentencing and had no other information before it meeting the statute's requirements. By sentencing him without a psychological evaluation complying with section 19-2522, Clinton argues, the court acted with manifest disregard of Idaho Criminal Rule 32.
Section 19-2522 specifies that "[i]f there is reason to believe the mental condition of the defendant will be a significant factor at sentencing and for good cause shown," the court must appoint a psychiatrist or psychologist to evaluate and report upon the defendant's mental condition to inform the court's sentencing decision. The statute further directs that the report of the evaluation should include the following:
(a) A description of the nature of the examination;
(b) A diagnosis, evaluation or prognosis of the mental condition of the defendant;
(c) An analysis of the degree of the defendant's illness or defect and level of functional impairment;
(d) A consideration of whether treatment is available for the defendant's mental condition;
(e) An analysis of the relative risks and benefits of treatment or nontreatment;
(f) A consideration of the risk of danger which the defendant may create for the public if at large.
I.C. § 19-2522(3). Relatedly, Rule 32 specifies the elements to be included in the presentence investigation (PSI) report, including information on the health of the defendant where relevant to the sentencing decision, I.C.R. 32(b)(8), and where appropriate, the presentence investigator's analysis and recommendation regarding a psychological evaluation, I.C.R. 32(b)(10).
A psychological evaluation is not required in every case where the defendant claims some mental illness or disability. State v. Jockumsen, 148 Idaho 817, 822, 229 P.3d 1179, 1184 (Ct. App. 2010). Rather, the decision of whether to obtain a psychological evaluation lies within the sentencing court's discretion. I.C.R. 32(d); Jockumsen, 148 Idaho at 822, 229 P.3d at 1184; State v. Durham, 146 Idaho 364, 366, 195 P.3d 723, 725 (Ct. App. 2008); State v. Craner, 137 Idaho 188, 189, 45 P.3d 844, 845 (Ct. App. 2002). As with any discretionary decision, however, the district court's action must be consistent with applicable legal standards. Jockumsen, 148 Idaho at 822, 229 P.3d at 1184; State v. McFarland, 125 Idaho 876, 879, 876 P.2d 158, 161 (Ct. App. 1994). A district court's election not to order a psychological evaluation will be upheld on appeal if the record can support a finding that there was no reason to believe the defendant's mental condition would be a significant factor at sentencing or if the information already before the court adequately met the requirements of section 19-2522(3). See I.C. § 19-2522(6);*fn1 Jockumsen, 148 Idaho at 822, 229 P.3d at 1184; Durham, 146 Idaho at 366, 195 P.3d at 725; State v. Collins, 144 Idaho 408, 409, 162 P.3d 787, 788 (Ct. App. 2007). However, because Clinton raises the issue for the first time on appeal, in light of the Idaho Supreme Court's recent clarification of the fundamental error doctrine in State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), we first must examine the question of how to approach appellate review of a district court's failure to order such an evaluation when no request for, or objection to the lack of, such an evaluation was made.
1. Continued viability of the manifest disregard standard in light of Perry
For some time, this Court has adhered to the rule that where a defendant did not request a psychological evaluation or object to the absence of such an evaluation in the PSI report, the defendant must demonstrate that by failing to order such an evaluation, the sentencing court manifestly disregarded the provisions of Rule 32. Jockumsen, 148 Idaho at 822, 229 P.3d at 1184; Durham, 146 Idaho at 366, 195 P.3d at 725. However, the question now arises as to the continued viability of the manifest disregard standard in light of the comprehensive fundamental error standard of review set forth recently by the Idaho Supreme Court in Perry, 150 Idaho 209, 245 P.3d 961. In two recent cases, we recognized this question must eventually be settled, but have thus far declined to address it because the parties had not briefed the issue. See State v. Carter, Docket No. 38038 (Ct. App. Feb. 8, 2011) (petition for review granted May 14, 2012); State v. Rollins, 152 Idaho 106, 266 P.3d 1211 (Ct. App. 2011). Given that both parties have adequately briefed the issue in this case, we proceed to address the continued viability of the manifest disregard standard in light of Perry.
In Rollins, although not deciding the issue, this Court reviewed the specifics of both Rule 32 and section 19-2522, as well as the origins and development of the manifest disregard standard and its potential intersection with the fundamental error standard set forth in Perry. In regard to Rule 32, we noted that as its title and introductory sentence make clear, the rule governs the preparation of PSI reports.*fn2 Specific to psychological information, the rule states the presentence investigator should include in the PSI report "a complete summary of the presentence investigator's view of the psychological factors surrounding the commission of the crime or regarding the defendant individually which the investigator discovers."
I.C.R. 32(b)(10). The rule also dictates that, when appropriate, the investigator's analysis should include a specific recommendation regarding a psychological evaluation and a plan of rehabilitation; however, while the investigator may recommend such an evaluation, the decision whether to order the evaluation is made by the sentencing judge. I.C.R. 32(d). On the other hand, section 19-2522 sets forth the standards governing the sentencing court's duties (without mention of the PSI) ...