Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. G. Richard Bevan, District Judge.
The opinion of the court was delivered by: Melanson, Judge
2012 Unpublished Opinion No. 643
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT
BE CITED AS AUTHORITY
Judgment of conviction and aggregate sentence of twenty-four years, with a minimum period of confinement of three years, for fifteen counts of possession of sexually exploitative material, affirmed.
Donald Gene Morris appeals from his judgment of conviction and aggregate sentence of twenty-four years, with a minimum period of confinement of three years, for fifteen counts of possession of sexually exploitative material. For the reasons set forth below, we affirm.
Morris pled guilty to fifteen counts of possession of sexually exploitative material. I.C. § 18-1507A. The district court imposed unified terms of eight years, with minimum periods of confinement of one year, for each count. The district court ordered that counts one through five run concurrently, counts six through ten run concurrently, and counts eleven through fifteen run concurrently. The district court also ordered that the three groups of concurrent sentences be served consecutively. Thus, the district court sentenced Morris to an aggregate term of twenty-four years, with a minimum period of confinement of three years. Morris appeals.
Morris asserts that, in rejecting recommendations for probation and community-based treatment or, in the alternative, a period of retained jurisdiction to further evaluate the imposition of a sentence of probation with community-based treatment, the district court erroneously relied on two factors--Morris's deceptive answers to questions during a polygraph examination and the recent instability of Morris's housing situation. Morris argues that reliance on these factors was an abuse of discretion and unconstitutional. The state asserts that, because Morris failed to object to the district court's reliance upon these factors during sentencing, the issues are waived unless they can be reviewed for fundamental error. We agree.
Generally, issues not raised below may not be considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Idaho decisional law, however, has long allowed appellate courts to consider a claim of error to which no objection was made below if the issue presented rises to the level of fundamental error. See State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007); State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262 (1971). In State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court abandoned the definitions it had previously utilized to describe what may constitute fundamental error. The Perry Court held that an appellate court should reverse an unobjected-to error when the defendant persuades the court that the alleged error: (1) violates one or more of the defendant's unwaived constitutional rights; (2) the error is clear or obvious without the need for reference to any additional information not contained in the appellate record; and (3) the error affected the outcome of the trial proceedings. Id. at 226, 245 P.3d at 978.
Morris argues that the district court abused its discretion during sentencing by considering his answers to two polygraph questions administered as part of his psychosexual evaluation. Specifically, Morris was asked whether he had ever had sexual contact with anyone under the age of eighteen. Morris was also asked, regarding the issue of sexual contact with a minor, whether he had ever had sexual contact with anyone under the age of eighteen. To both questions, Morris answered "no." According to the examiner, these answers showed strong and consistent unresolved responses. Morris's appellate counsel speculates that, because Morris admitted during his psychosexual evaluation to having sexual contact with a girl who was about his same age when he was approximately eighteen years old, Morris and the girl may have been seventeen at the time. Thus, Morris asserts that his answers, which were deemed deceptive by the district court, may have been related to that experience, which was not a crime, and therefore the questions were irrelevant to the question of whether he had ever had illegal sexual contact with a minor. Morris argues that, while his answers to the polygraph questions did show strong and consistent unresolved responses, the questions were "so obviously flawed that the polygraph results did not provide any relevant information." Morris concludes that, by relying on his answers to such questions, the district court did not base the imposition of Morris's sentence upon sound reasoning and, therefore, abused its discretion.
Morris's assertion that the polygraph results did not provide any relevant information is unpersuasive. Such assertion is based upon mere speculation by appellate counsel that Morris's answers to the polygraph questions only showed strong and consistent unresolved responses because Morris had previously had sexual contact with a minor while he was also a minor. During sentencing, the district court expressed concern about Morris's deceptive answers regarding his prior history with minors and noted that nothing had been said to clarify the reason for such deception. No clarification was thereafter made and Morris's appellate counsel only attempts to make such clarification based upon speculation. Even assuming that the polygraph results did not provide any relevant information, Morris has not argued, nor provided any authority to show, that consideration of irrelevant information during his sentencing violated any constitutional right. Morris has not shown that the district court's consideration of allegedly irrelevant information during sentencing violated one or more of his unwaived constitutional rights. Accordingly, Morris's claim fails under the first prong of Perry.
Morris also argues that the district court did not use sound reasoning and, therefore, abused its discretion by determining that incarceration was necessary because Morris had been homeless for a time between the entry of his guilty pleas and sentencing. Specifically, Morris asserts that the district court expressed concern that Morris would have difficulty completing probation because of his prior living situation and failed to consider that Morris had moved into a men's shelter and was in the process of securing an apartment. Contrary to Morris's assertion, the district court did inquire into Morris's living situation during sentencing. The district court was informed that the address included in the pre-sentence investigation report was the address of a men's shelter, Morris had subsequently lived in his car for a period of time, and Morris was currently staying at a new residence with a roommate. Morris's assertion that the district court did not use sound reasoning because it failed to consider that Morris had moved into a men's shelter and was in the process of ...