Appeal from the District Court of the Third Judicial District, State of Idaho, Gem County. Hon. Juneal C. Kerrick, District Judge.
The opinion of the court was delivered by: Gutierrez, Judge
2012 Unpublished Opinion No. 719
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT
BE CITED AS AUTHORITY
Judgment of conviction and unified sentence of fifteen years, with four years determinate, for aggravated battery with a deadly weapon, affirmed.
Tony Ray Brown appeals from his judgment of conviction and sentence for aggravated battery with a deadly weapon following the entry of his guilty plea. Specifically, Brown asserts the district court violated his state and federal constitutional rights against self-incrimination by questioning Brown at sentencing and that the district court further erred by failing to sufficiently consider mitigating factors, resulting in an excessive sentence. For the reasons set forth below, we affirm.
This appeal arises from a criminal case wherein Brown entered a guilty plea to aggravated battery with a deadly weapon. After the State filed the criminal complaint, Brown waived his preliminary hearing and was bound over to district court. The State filed an information and, at the time set for arraignment on the felony charge, Brown indicated he wished to enter a guilty plea without the benefit of a plea agreement. The factual basis of the charge given during the plea colloquy, and contained within the information in substantially the same form, was as follows:
[T]hat . . . Tony Ray Brown on or about December 23, 2010, Gem County, Idaho, did actually, intentionally, and unlawfully use force and violence on the person of [the victim] by means of a deadly weapon, to wit: a baseball bat, by striking [the victim] in the face and the hands with the bat, and/or causing great bodily harm and disfigurement in violation of Idaho Code Sections 18-903, 907, aggravated battery, a felony.
Brown thereafter pled guilty. The district court informed Brown of his rights and questioned him regarding his understanding of the rights that are waived by the entry of a guilty plea. The district court then asked Brown to explain what acts Brown had committed that made him guilty of aggravated battery. Brown told the court that he hit the victim with a baseball bat, though Brown stated a different individual had made a threat to his girlfriend's child and the beating "wasn't meant for [the victim]." After clarifying the act was intentional, even if it was meant for a different intended victim, and being satisfied that the defendant knowingly and voluntarily entered the plea, the district court accepted Brown's guilty plea to aggravated battery with a deadly weapon, Idaho Code §§ 18-903, 18-907.
At the sentencing hearing later held, the district court heard the impact statements of the victim and the victim's mother, took argument from defense counsel and the State, and then asked Brown if he wanted to make a statement. Brown said, "No." The district court urged him to speak. Brown apologized for his actions but continued to oppose further questioning or making additional statements. The district court repeatedly asked Brown questions in regards to his assertions that he acted because the intended victim had threatened his girlfriend's child. In considering the extensive injuries the innocent victim suffered and in deciding that probation or retained jurisdiction would depreciate the seriousness of the crime, the district court imposed the maximum sentence of a unified term of fifteen years, with four years determinate. Brown timely appealed. He also filed an Idaho Criminal Rule 35 motion for a reduction of his sentence, which the district court denied.
On appeal, Brown does not challenge the denial of the Rule 35 motion, but asks this Court to vacate his sentence and remand the case for resentencing before a different judge. Brown asserts two errors: (1) the district court violated his state and federal constitutional rights against self-incrimination by compelling Brown to answer questions at sentencing; and (2) the district court abused its discretion and imposed an excessive sentence because it failed to sufficiently consider mitigating factors.
A. Violation of the Right Against Self-Incrimination at Sentencing
The Fifth Amendment to the United States Constitution provides, "No person . . . shall be compelled in any criminal case to be a witness against himself." A defendant retains the Fifth Amendment right against self-incrimination during the penalty phase of criminal proceedings. Estelle v. Smith, 451 U.S. 454, 462-63 (1981). The State counterpart, guaranteed by Article 1, Section 13 of the Idaho Constitution and codified in Idaho Code § 19-3003, also encompasses sentencing. See State v. Wilkins, 125 Idaho 215, 217-18, 868 P.2d 1231, 1233-34 (1994); State v. Anderson, 130 Idaho 765, 770, 947 P.2d 1013, 1018 (Ct. App. 1997). A guilty plea waives a defendant's right against self-incrimination at sentencing only to the extent that testimony relates to a matter into which the trial court could have inquired at the time of the guilty plea. Wilkins, 125 Idaho at 218, 868 P.2d at 1234. A defendant may not be required to testify to matters beyond the facts of the case and beyond whether the guilty plea was knowingly and voluntarily given. Id. Any effort by the State to compel the defendant to so testify, against his will, violates the defendant's right to remain silent. Estelle, 451 U.S. at 463; see also Anderson, 130 Idaho at 770 n.2, 947 P.2d at 1018 n.2.*fn1
Brown argues the district court violated his right against self-incrimination by requiring Brown to answer questions at sentencing about his motive in committing the crime after Brown repeatedly expressed his desire not to speak. Brown asserts the motive was not relevant to establish a factual basis of the crime or voluntariness of the plea and, therefore, the questioning by the district court was outside the permissible scope of inquiry. The State argues Brown did not object below or raise the issue before the trial court and, thus, any such argument on appeal is subject to the fundamental error analysis, which Brown cannot show from the record. Brown responds that the invocation of the right not to speak at sentencing serves as the objection and, therefore, the issue is preserved for appellate review.
1. Preservation of the issue on appeal
Generally, this Court will not consider an alleged error absent a timely objection made before the trial court. State v. Sheahan, 139 Idaho 267, 277, 77 P.3d 956, 966 (2003). An objection is preserved for appellate review, without resort to fundamental error analysis, if either the specific ground for the objection is clearly stated or the basis of the objection is apparent from the context. Id. Any invocation of the Fifth Amendment right against self-incrimination, also referred to as the right to remain silent, must be clear and unequivocal. See State v. Payne, 146 Idaho 548, 558-59, 199 P.3d 123, 133-34 (2008). There is no talismanic phrase or formula that is essential in order to invoke the right. Emspak v. United States, 349 U.S. 190, 194 (1955). All that is necessarily is an objection that may be reasonably expected to be understood as an attempt to invoke the right to remain silent. See id.
Brown made sufficiently clear his desire to remain silent at sentencing. When asked if he wished to make a statement, Brown said, "No." The district court pressed him, stating, "No? I think you really do need to say it. It may be ...