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State of Idaho v. Michael Dwain Pulsifer

November 30, 2012

STATE OF IDAHO, PLAINTIFF-RESPONDENT,
v.
MICHAEL DWAIN PULSIFER, DEFENDANT-APPELLANT.



Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. Randy J. Stoker, District Judge.

The opinion of the court was delivered by: Lansing, Judge

2012 Unpublished Opinion No. 752

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Judgment of conviction for possession of methamphetamine, affirmed.

Michael Dwain Pulsifer pleaded guilty to possession of methamphetamine. He appeals from the judgment of conviction contending that the district court erred by failing to sua sponte order a competency evaluation. We affirm.

I. BACKGROUND

Pulsifer was charged with possession of methamphetamine with intent to deliver after drug evidence was found in his vehicle during a traffic stop. On June 13, 2011, pursuant to a plea agreement, Pulsifer pleaded guilty to a reduced charge of possession of methamphetamine. Among other terms, the agreement provided that the State could recommend any sentence it felt appropriate, including the allowable maximum term of imprisonment of seven years. At the change of plea hearing, Pulsifer stated that he understood this term of the agreement. When asked by the district court to state in his own words what he did that made him guilty of the charge, Pulsifer said that "[u]nder Idaho law I possessed methamphetamine" and he further stated that he knew the substance was methamphetamine. The district court ordered the preparation of a presentence investigation report (PSI) and an Idaho Code § 19-2524 substance abuse evaluation, and scheduled sentencing for August 22, 2011.

On July 14, 2011, Pulsifer participated in the court-ordered substance abuse evaluation where one of his tasks was to fill out a form indicating his recent drug use. The evaluator noted that Pulsifer repeatedly would pencil-in the "bubble" that indicated he had most recently used methamphetamine in the last one to three months, then erase his answer and fill in that he had most recently used methamphetamine in the last four to twelve months. Pulsifer also told the substance abuse evaluator that he did not feel that treatment would benefit him because he did not have a drug problem. Pulsifer also told the evaluator that he had never been diagnosed with or received treatment for a mental, emotional, behavioral, or psychological problem. The evaluator concluded that Pulsifer did have a drug problem and recommended treatment.

As a condition of his stipulated presentencing release from custody on bond, Pulsifer was required to participate in a court compliance program, which called for, among other things, random drug testing. In the period beginning on July 12, 2011, and ending on August 4, 2011, Pulsifer failed to appear for testing three times and tested positive for methamphetamine on two other occasions. Pulsifer was re-arrested and his bond was revoked, but on August 16, 2011, he again posted bond and was released.

Less than one week before the scheduled sentencing hearing, defense counsel moved to postpone sentencing in order to afford Pulsifer the opportunity to complete an intensive outpatient drug treatment program that he had just begun. At a hearing on the motion, defense counsel also informed the court that Pulsifer had been in a car accident within the previous year and "that he may have suffered some brain damage during that time that is concerning to his friends and family and may be causing some lingering issues in the mental health department." Defense counsel requested a "mental health evaluation" to "determine the extent of any impairment that may have happened and whether he is in need of any current mental health treatment." The district court granted both motions, ordering an I.C. § 19-2524 mental health evaluation and postponing sentencing until this could be done.

Pulsifer failed to appear at the scheduled October 17, 2011, sentencing hearing. On November 14, 2011, the date finally set for sentencing, Pulsifer appeared, but the district court had to suspend the hearing for an hour because Pulsifer had failed to attend a presentencing scheduled appointment with his attorney to review the PSI and evaluations. After the consultation, the hearing was resumed and the State and defense counsel made their sentencing recommendations. Pulsifer then addressed the court. He attempted to excuse and explain, in an relatively inarticulate manner, his criminal conduct in the case at hand, his numerous parole and probation violations in previous criminal cases, his failure to attend the scheduled meeting with his attorney, his failed drug tests while in the court compliance program, and, contrary to statements he made to the substance abuse evaluator, he acknowledged that he had a drug problem and said he wished for treatment.

The district court imposed a sentence of incarceration. ...


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