Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bingham County. Hon. Darren B. Simpson, District Judge.
The opinion of the court was delivered by: Gratton, Judge
Judgment of conviction and sentence for lewd conduct with minor child under sixteen, vacated and case remanded for resentencing.
Manuel Garcia Velasco appeals from the district court's judgment of conviction and sentence for lewd conduct with minor child under sixteen, Idaho Code § 18-1508. We vacate and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Prior to conviction, the district court ordered a competency evaluation pursuant to I.C. § 18-211. The evaluation found that Velasco was competent to stand trial. However, the evaluation also suggested that Velasco exaggerated his neurocognitive difficulties and that his performance suggested a "malingered cognitive dysfunction." At a change of plea hearing, Velasco alleged that he was incapable of remembering the crime. He then entered an Alford plea.*fn1
The district court ordered a psychosexual evaluation (PSE), which was performed by the same doctor who performed the competency evaluation. During the PSE, Velasco underwent a polygraph examination, which alerted the doctor that he was being deceptive in many of his answers. After being confronted with the results of the polygraph examination, Velasco admitted that he remembered the crime and admitted that he sexually abused the victim. The written PSE included a section which summarized the competency evaluation and also reported on the information learned as a result of the polygraph.
At sentencing, defense counsel and the State recommended a sentence of probation. While questioning defense counsel about the recommendation, the district court referenced the competency evaluation and the competency evaluation summary contained in the PSE. The district court then imposed and executed a unified sentence of thirty years with ten years determinate.
Velasco appealed, but his appellate counsel failed to file an appellate brief and the appeal was dismissed. However, the district court granted Velasco post-conviction relief and reentered the judgment of conviction. Velasco timely appeals.
Velasco claims that the district court violated his Fifth Amendment privilege against self- incrimination by considering for sentencing purposes information contained in his competency evaluation report. The Fifth Amendment to the United States Constitution guarantees that "No person . . . shall be compelled in any criminal case to be a witness against himself." This safeguard against compelled self-incrimination applies to both the guilt and penalty phases of a trial. Mitchell v. United States, 526 U.S. 314, 325-27 (1999); Estelle v. Smith, 451 U.S. 454, 462-63 (1981); Estrada v. State, 143 Idaho 558, 563-64, 149 P.3d 833, 838-39 (2006); State v. Lankford, 116 Idaho 860, 871-72, 781 P.2d 197, 208-09 (1989). A competency evaluation of one charged with a crime ordinarily does not implicate the Fifth Amendment because any disclosures made by the defendant are not used against him but are used only for the neutral, limited purpose of determining whether he is competent to stand trial. See Estelle, 451 U.S. at 465. Fifth Amendment rights come into play, however, if disclosures made during a competency evaluation, or medical conclusions derived from such disclosures, are later used against the defendant at either the guilt or penalty phase of the proceedings. Id. See also Estrada, 143 Idaho at 564, 149 P.3d at 839 ("Incrimination is implicated . . . when punishment could be enhanced as a result of the defendant's statements."). Consequently, ...