State v. Newsom

14 P.3d 1083, 135 Idaho 89, 2000 Ida. App. LEXIS 93
Idaho Court of Appeals·Decided December 5, 2000·No. No. 25596·Published

Opinion

LANSING, Judge.

Karlene M. Newsom appeals from the sentence entered upon her conviction of felony injury to child.

Carmalita Shaw asked her former brother-in-law, Joe Newman, if he would take care of her three children while she was incarcerated for one month in the Bannock County Jail. At the time, Newsom and her children lived with Newman. While in the care of Newman and Newsom, eight-month-old Miranda Shaw was killed by blunt force injuries to her head, neck, thorax, and back. Both Newman and Newsom were charged with committing felony injury to a child, I.C. § 18-1501(1), for having willfully caused or permitted Miranda’s injuries. Pursuant to a plea agreement, Newsom pleaded guilty. The court accepted the plea and imposed a unified sentence of ten years with a five-year minimum term. On appeal, Newsom contends that the district court erred by considering evidence outside the record in deciding upon Newsom’s sentence and that the sentence is excessive.

A. Consideration of Evidence Not in the Record

Newsom first argues that the district court abused its discretion by taking notice of evidence outside the record. Prior to accepting Newsom’s guilty plea, the court informed her of the court’s intent to rely on evidence presented in Joe Newman’s trial when deciding what sentence to impose on Newsom.1 Newsom did not object to this expression of the court’s intent. At the sentencing hearing, the court twice stated that the evidence in Newman’s trial showed that Miranda’s death was caused by the acts of one or both of the adults in that household. Newsom’s counsel stated that he and Newsom “were fully aware of that testimony.” At no time did Newsom ever object to the court’s reliance on evidence from the Newman trial.

As a general rule, issues raised for the first time on appeal are not considered. State v. Toohill, 103 Idaho 565, 566, 650 P.2d 707, 708 (Ct.App.1982). The failure to object to reliance on improper or inadmissible information in sentencing has generally been held to be a waiver of the issue on appeal. For example, the failure to object at the trial level to alleged deficiencies in a presentence investigation report precludes a claim on appeal that the deficiencies are reversible er-

[91] ror. Id.; State v. Wallace, 98 Idaho 318, 320, 563 P.2d 42, 44 (1977); State v. Nez, 130 Idaho 950, 956, 950 P.2d 1289, 1295 (Ct.App.1997). Likewise, the failure to object to speculative statements in a presentence investigation report prevents consideration of the issue on appeal. State v. King, 120 Idaho 955, 960, 821 P.2d 1010, 1015 (Ct.App.1991). This Court has also held that the failure to object to testimony given in a sentencing hearing waives the issue on appeal. State v. Rodriguez, 132 Idaho 261, 264-65, 971 P.2d 327, 330-31 (Ct.App.1998).

There are only a few exceptions to the waiver rule. See, e.g., State v. Pizzuto, 119 Idaho 742, 760, 810 P.2d 680, 698 (1991) (exception to waiver rule in all death penalty cases mandated by I.C. § 19-2827), overruled on other grounds, State v. Card, 121 Idaho 425, 825 P.2d 1081 (1991); State v. Viehweg, 127 Idaho 87, 91, 896 P.2d 995, 999 (Ct.App.1995) (exception to waiver rule if a manifest disregard for the requirements of I.C.R. 32 is shown). This Court has also reviewed a challenge to the sufficiency of a presentence investigation report that was not objected to at trial when the failure to object was the basis of a claim of ineffective assistance of counsel. State v. Aspeytia, 130 Idaho 12, 19, 936 P.2d 210, 217 (Ct.App.1997).

For purposes of the present case, the most important exception is that articulated in State v. Morgan, 109 Idaho 1040, 1043, 712 P.2d 741, 744 (Ct.App.1985), where the Court held that a trial court’s manifest disregard of certain procedural safeguards mandated by the Idaho Supreme Court in State v. Moore, 93 Idaho 14, 454 P.2d 51 (1969), could be examined on appeal despite the lack of an objection below. Those safeguards are:

(1) The defendant must be afforded a “full opportunity” to present favorable evidence. (2) He must be given a “reasonable opportunity” to examine all materials contained in the presentence report. (3) He must be afforded a “full opportunity” to explain and rebut adverse evidence.

Id. (quoting Moore, 93 Idaho at 17, 454 P.2d at 54). Newsom’s claim of error implicates the third requirement—a full opportunity to explain and rebut adverse evidence.

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State v. Newsom, 14 P.3d 1083, 135 Idaho 89, 2000 Ida. App. LEXIS 93 (Idaho Ct. App. 2000).

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