State v. Rollins

• Decision Date: 19 July 2011
• Docket Number: No. 37688.,37688.
• Citation: 152 Idaho 106,266 P.3d 1211
• Court: Idaho Court of Appeals
• Parties: STATE of Idaho, Plaintiff–Respondent, v. Ronald W. ROLLINS, Jr., Defendant–Appellant.

152 Idaho 106

266 P.3d 1211

STATE of Idaho, Plaintiff–Respondent,

v.Ronald W. ROLLINS, Jr., Defendant–Appellant.

No. 37688.

Court of Appeals of Idaho.

July 19, 2011.

Molly J. Huskey, State Appellate Public Defender; Spencer J. Hahn, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

GRATTON, Chief Judge.

Ronald W. Rollins, Jr. appeals his sentence imposed upon a guilty plea to grand theft, Idaho Code § 18–2403(1). Rollins argues that the district court erred by failing to order a psychological evaluation before sentencing and abused its discretion by imposing an excessive sentence. We affirm.

I.FACTUAL AND PROCEDURAL BACKGROUND

Rollins entered a welding business with a key that had been entrusted to him by the business owner's sister. He took two pieces of welding machinery valued at approximately $7,750 to a pawn shop and received $600. Rollins spent the money on drugs. Pursuant to a plea agreement, Rollins pled guilty to grand theft and was released directly to a voluntary drug rehabilitation program. After entry of the guilty plea, the district court inquired about the need for an I.C. § 19–2524 evaluation, which allows courts to "order the defendant to undergo a substance abuse assessment and/or a mental health examination." I.C. § 19–2524(1). Rollins' attorney replied that the drug rehabilitation program would provide an evaluation that would assist the court in sentencing and a separate evaluation would not be necessary.

The presentence investigation report (PSI) summarized Rollins' history of misdemeanor crimes: possession of alcohol by a minor; driving without privileges; failure to purchase a license; battery; two instances of petit theft; unlawful sale of prescription drugs; and two probation violations. Rollins also had charges of grand theft and forgery dismissed. As it related to investigating Rollins' mental condition, the investigator reported that two attempts had been made to involuntarily commit Rollins' mother, but both proceedings had been dropped. Rollins' ex-girlfriend at the time of the investigation told the investigator that Rollins was a pathological liar, had stolen from her, had caused her severe financial difficulties, and possibly had mental health problems similar to his mother's. Rollins stated to the investigator that he "would like a mental health evaluation." Relating to his drug addiction, Rollins told the investigator that he had been addicted to pain medication for approximately eight years and that he desires to stop using drugs. The investigator concluded that Rollins' criminal problems were attempts to support his drug habit and that he needed a controlled environment to address his addictions, thinking, and behavior. The investigator did not recommend that the court obtain a psychological evaluation for sentencing purposes.

At sentencing, Rollins requested a withheld judgment. The court imposed a unified sentence of five years with two years determinate and suspended the sentence, placing Rollins on supervised probation. Rollins appeals.

II.DISCUSSION

Rollins claims the sentencing court erred by failing to order a psychological evaluation, and abused its discretion by imposing an excessive sentence.

A. Psychological Evaluation

Rollins argues the district court erred by failing to order a psychological evaluation prior to sentencing. Rollins contends that he requested an evaluation through the PSI. Alternatively, he asserts that the district court erred by failing to sua sponte order a psychological evaluation prior to sentencing.

In the PSI, the investigator wrote: "The defendant stated he has never had mental health counseling, never considered or attempted suicide, but reports that he feels anxiety and depression and would like a mental health evaluation. He stated that his mother has mental health issues with anxiety and depression." (Emphasis added.) On appeal, Rollins characterizes this statement as a request for a psychological evaluation. The State asserts that the reference was in relation to treatment, not sentencing, and, moreover, does not constitute a motion or other proper request for a presentence psychological evaluation.

While a presentence investigator may recommend a psychological evaluation, Idaho Criminal Rule 32(d), the sentencing court is charged with deciding whether to order an evaluation. I.C. § 19–2522 ; I.C.R. 32(d). Idaho Criminal Rule 47 states:

An application to the court for an order shall be by motion. A motion other than one made during a trial or hearing shall be in writing unless the court permits it to be made orally. It shall state the grounds upon which the motion is made and shall set forth the relief or order sought. It may be supported by affidavit. Any written order entered shall be on a separate document.

Rollins, who was represented by counsel, did not file a motion with the district court requesting a psychological evaluation. This Court will not consider the statement Rollins made to the investigator as a motion, or any other request directed to the district court. Thus, Rollins' argument on appeal that the district court erred by failing to grant his request for a psychological evaluation is without merit.

Rollins alternatively argues—for the first time on appeal—that the district court should have sua sponte ordered a psychological evaluation. This issue presents the question of appellate review of a district court's failure to order a psychological evaluation when no request for, or objection to, the lack of such evaluation was made. We have held that a claim that the district court should have sua sponte ordered a psychological evaluation will be reviewed upon a showing of a manifest disregard of I.C.R. 32. Cf. State v. Jones, 132 Idaho 439, 442, 974 P.2d 85, 88 (Ct.App.1999) ("Where a defendant fails to request a psychological evaluation or object to the PSI on the ground that an evaluation has not been performed, a defendant must demonstrate that by failing to order a psychological evaluation the court ‘manifestly disregarded the provisions of I.C.R. 32.’ "). A question arises regarding the status or appropriate use of the "manifest disregard" standard in light of the comprehensive fundamental error analysis set out in State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010). As set forth below, Rollins can satisfy neither the manifest disregard nor the fundamental error standard and, therefore, we need not decide, in this case, whether the manifest disregard standard has continued vitality in light of Perry. We believe the question will be presented in a future matter and we will require briefing of the parties on the issue at that time. However, we take this opportunity to provide a brief review of the manifest disregard standard and its potential intersection with the fundamental error standards re-articulated in Perry.

The manifest disregard of Rule 32 standard can be traced to State v. Toohill, 103 Idaho 565, 566–67, 650 P.2d 707, 708–09 (Ct.App.1982). There, Toohill argued that his PSI was inadequate because the report did not provide a full analysis of his psychological condition or set forth a plan of rehabilitation. Toohill did not raise this objection before the sentencing court, and this Court sought to resolve whether Toohill could raise the claim for the first time on appeal. We acknowledged the general rule that issues must be first raised at the trial level to be considered on appeal, but also recognized the exception for fundamental error. " ‘Fundamental error’ denotes a denial of due process." Id. at 566, 650 P.2d at 708. The Court expressly noted that the fundamental error doctrine had not been expanded to sentencing. However, the Toohill Court recognized that PSIs have a significant bearing on sentencing decisions and appellate review of the sentence. The Idaho Supreme Court had enacted Rule 32 to regulate PSIs, and the rule directs the investigator, as appropriate, to recommend that the court obtain a psychological examination or plan for rehabilitation. This Court concluded it would review an appellate claim of "manifest disregard" of the rule, despite the lack of objection below. Id. The Court noted, however, that it would not review a contention, made for the first time on appeal, that compliance with the rule was simply inadequate, that the report should have developed a particular point further, or that certain information was incomplete or inaccurate. Id. at 566–67, 650 P.2d at 708–709.

Following Toohill, this Court used the phrase "manifest disregard" in cases involving sentencing issues. In State v. Sensenig, 110 Idaho 83, 86, 714 P.2d 52, 55 (Ct.App.1985), the Court considered whether the defendant, who had not objected below, could demonstrate " ‘disregard’ for Rule 32" by inclusion of hearsay statements in the PSI. In State v. Morgan, 109 Idaho 1040, 1043, 712 P.2d 741, 744 (Ct.App.1985), the Court was asked to review a claim that the district court relied on information outside the record, contrary to State v. Moore, 93 Idaho 14, 17, 454 P.2d 51, 54 (1969). We stated that " [b]y parity of reasoning, we hold today that manifest disregard of the Moore requirements also may be examined despite the lack of an objection." Morgan, 109 Idaho at 1043, 712 P.2d at 744.

Rule 32, as its title and introductory sentence make clear, governs presentence investigation reports. Specific to psychological information, the presentence investigator should include in the PSI "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). "Where appropriate, the analysis should also include a specific recommendation regarding a psychological examination and a plan of rehabilitation." I.C.R. 32(b)(10). "The presentence investigator may recommend a...