State v. Newsom

14 P.3d 1083, 135 Idaho 89, 2000 Ida. App. LEXIS 93
CourtIdaho Court of Appeals
DecidedDecember 5, 2000
DocketNo. 25596
StatusPublished

This text of 14 P.3d 1083 (State v. Newsom) is published on Counsel Stack Legal Research, covering Idaho Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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

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]*91ror. 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.

We conclude, however, that this case is distinguishable from Morgan. In Morgan, the sentencing court considered an oral statement from an unidentified source to conclude that the defendant had violated a condition of his bond. The court relied on that alleged violation to decide that Morgan should not be placed on probation. Neither the State nor the defendant had been notified of the existence of the statement or the alleged violation prior to the sentencing hearing. Furthermore, the sentencing court in Morgan waited until after each side had presented evidence and argument before mentioning the alleged bond violation. Here, by contrast, Newsom was notified of the court’s intent to rely on the State’s evidence in the Newman trial more than a month before her sentencing hearing. Then at the sentencing hearing, the court twice interrupted arguments of defense counsel and the prosecutor and mentioned its intent to rely on facts disclosed in Newman’s trial as they might be pertinent to Newsom’s sentence. Thus, Newsom had three opportunities before the court began imposing sentence to object to the court’s reliance on evidence outside the record. Instead, Newsom’s attorney told the court at the sentencing hearing that he and Newsom were “fully aware of that testimony.” Thus, it is clear that Newsom had notice of the evidence that would be relied upon. It is also apparent that, unlike the defendant in Morgan, Newsom had a full opportunity to explain and rebut that evidence. Consequently, although the district court’s reliance on information outside the record may have been improper, the procedure used here did not rise to the level of a deprivation of due process that would call for examination on appeal despite the lack of an objection below. Additionally, in Morgan, the defendant raised the issue of consideration of improper evidence in the district court after sentencing by way of a motion under Idaho Criminal Rule 35. Newsom took no similar action here to present to the district court her claim that improper information was considered in her sentencing. Consequently, we hold that Newsom has waived the issue of whether the district comí; erred by relying on evidence from the Newman trial.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Nez
950 P.2d 1289 (Idaho Court of Appeals, 1997)
State v. Moore
454 P.2d 51 (Idaho Supreme Court, 1969)
State v. Charboneau
861 P.2d 67 (Idaho Supreme Court, 1993)
State v. Gomez
900 P.2d 803 (Idaho Court of Appeals, 1995)
State v. Warnell
864 P.2d 175 (Idaho Court of Appeals, 1993)
State v. Morgan
712 P.2d 741 (Idaho Court of Appeals, 1985)
State v. Aspeytia
936 P.2d 210 (Idaho Court of Appeals, 1997)
State v. Pizzuto
810 P.2d 680 (Idaho Supreme Court, 1991)
State v. King
821 P.2d 1010 (Idaho Court of Appeals, 1991)
State v. Wallace
563 P.2d 42 (Idaho Supreme Court, 1977)
State v. Viehweg
896 P.2d 995 (Idaho Court of Appeals, 1995)
State v. Toohill
650 P.2d 707 (Idaho Court of Appeals, 1982)
State v. Wolfe
582 P.2d 728 (Idaho Supreme Court, 1978)
State v. Rodriguez
971 P.2d 327 (Idaho Court of Appeals, 1998)
State v. Sanchez
769 P.2d 1148 (Idaho Court of Appeals, 1989)
State v. Card
825 P.2d 1081 (Idaho Supreme Court, 1991)
State v. Brown
825 P.2d 482 (Idaho Supreme Court, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
14 P.3d 1083, 135 Idaho 89, 2000 Ida. App. LEXIS 93, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-newsom-idahoctapp-2000.