                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                        Docket No. 39927

STATE OF IDAHO,                                     )
                                                    )        Boise, June 2013 Term
     Plaintiff-Respondent,                          )
                                                    )        2013 Opinion No. 92
v.                                                  )
                                                    )        Filed: August 16, 2013
TYLER RAY CARTER,                                   )
                                                    )        Stephen Kenyon, Clerk
     Appellant-Defendant.                           )

       Appeal from the District Court of the Fourth Judicial District of the State of
       Idaho, Ada County. Hon. Thomas F. Neville, District Judge.

       The district court’s judgment of conviction and sentence is affirmed.

       Sara B. Thomas, State Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent.
             _______________________________________________

HORTON, Justice.
       Tyler Ray Carter pleaded guilty to aggravated battery on a correctional officer and was
sentenced to fifteen years with five years fixed. Carter appealed the sentence on the grounds the
district court failed to order a separate psychological evaluation prior to sentencing, as required
by I.C. § 19-2522, and also violated his Fifth Amendment privilege against self-incrimination by
using pre-trial competency evaluations in making its sentencing determination. Carter did not
object to either the use of the competency evaluations or the court’s failure to order a
psychological evaluation. The Court of Appeals applied the manifest disregard standard to
review Carter’s claim that the court erred by failing to order a new psychological evaluation, and
vacated the sentence. We granted the State’s petition for review, in which the State argued that
the fundamental error standard applies to all unobjected-to error. We affirm the district court’s
judgment of conviction and sentence.
                    I. FACTUAL AND PROCEDURAL BACKGROUND
       Carter was incarcerated at the Idaho Maximum Security Institution in the mental health
tier. On May 12, 2009, he created a disturbance in the shower by breaking a chair and spitting on

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the window. A response team was called, and Carter was placed in arm and leg restraints. Officer
Johnson assisted other officers in restraining Carter and returning him to his cell. As the group
was proceeding toward Carter’s cell, Carter suddenly bent down or leaned forward, and then
sprung upward and backward, slamming his head into the right side of Officer Johnson’s head,
resulting in permanent injuries to Officer Johnson. Carter was charged with aggravated battery
on a correctional officer, a violation of I.C. § 18–915(2), with a persistent violator sentence
enhancement, I.C. § 19–2514. At the request of Carter’s attorney, the court ordered a
competency evaluation pursuant to I.C. § 18–211. Dr. Chad Sombke evaluated Carter and
concluded that Carter was exhibiting significant psychiatric symptoms but was competent to
assist in his defense. After initially pleading not guilty, on the morning of trial Carter agreed to
plead guilty to the underlying charge in exchange for the State’s agreement to dismiss the
persistent violator enhancement. The district court accepted the plea and ordered a presentence
investigation report (PSI). Defense counsel then requested that Carter’s psychiatric records be
included in the PSI:
       [DEFENSE COUNSEL]: Also, Judge, if you could, as part of your order,
       incorporate that you would like to receive a copy of his psych—psychiatric
       records—that are already in the—
       THE COURT: At IDOC [Idaho Department of Correction]?
       [DEFENSE COUNSEL]: IDOC, and I believe under the supervision of Dr.
       Sombke. I think that—
       THE COURT: Okay, okay. And—
       [DEFENSE COUNSEL]: —would be helpful.
       The judge then explained to Carter that a presentence investigator would come to speak
with him, and that her report would be treated seriously by the court. The judge then asked
Carter for permission to obtain his psychiatric records:
       THE COURT: I’d like to have whatever psychiatric records exist out there in the
       world, including at Idaho Department of Corrections. Is that okay with you for me
       to have those records—
       THE DEFENDANT: Yes.
       THE COURT: —to know what the doctors have said about you, and what reports
       they’ve written?
       THE DEFENDANT: Yes.
       THE COURT: You understand why that might be important for me to have? If—
       THE DEFENDANT: Yes.
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          THE COURT: —if I have to make a sentencing decision, it would be important
          for me to have that information, wouldn’t it?
          THE DEFENDANT: Yes.
          ....
          THE COURT: If you have to sign a waiver or something, that’s okay with you?
          THE DEFENDANT: Yes.
          The PSI included a competency evaluation that was prepared in 2005 for a different case,
in which Carter was diagnosed with schizophrenia. The PSI may also have included the 2010
competency evaluation prepared in this case, although that is not clear from the record on appeal.
So far as indicated in the record, the PSI did not include any of Carter’s psychiatric records
generated at IDOC. Carter did not request that the PSI be augmented with IDOC records nor did
he request a psychological evaluation pursuant to I.C. § 19–2522. At sentencing, both parties
made arguments concerning Carter’s mental health. In its sentencing comments, the district court
concluded that the head-butting incident was unrelated to Carter’s schizophrenia; rather, it was
the product of his choice to hurt someone. The district court then sentenced Carter to serve a
unified fifteen-year term of imprisonment, with five years fixed.
          On appeal, Carter seeks resentencing, contending that the inclusion in his PSI of
psychological evaluations that were conducted solely for the purpose of determining his
competence to stand trial or assist with his defense violated I.C. § 18–215 and the Fifth
Amendment to the United States Constitution. He also asserts that the district court committed
error when it failed to sua sponte order a psychological evaluation pursuant to Idaho Code § 19–
2522. 1
          The Court of Appeals, applying the Perry 2 fundamental error test, held that there was no
violation of Carter’s Fifth Amendment privilege. However, it declined to apply Perry to the
claimed error based upon I.C. § 19-2522, instead relying on its rule that errors involving a
manifest disregard of I.C.R. 32 may be reviewed for the first time on appeal. The Court of
Appeals then determined the district court erred by failing to order a psychological evaluation,
and vacated the sentence. We granted the State’s petition for review.



1
  It is an understatement to say that we have borrowed liberally from the Court of Appeals’ opinion in the foregoing
statement of the factual and procedural history of this action. However, by operation of I.A.R. 122, that opinion will
not become final and it will consequently remain unpublished. For that reason, no citation is provided.
2
  State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010).

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                                  II. STANDARD OF REVIEW
       When this Court hears a case on a petition for review from the Court of Appeals, it “gives
serious consideration to the Court of Appeals’ views, but will review the trial court’s decision
directly,” and “acts as if the appeal was directly from the trial court’s decision.” State v. Pepcorn,
152 Idaho 678, 686, 273 P.3d 1271, 1279 (2012) (citing State v. Field, 144 Idaho 559, 564, 165
P.3d 273, 278 (2007)).
                                          III. ANALYSIS
       Carter originally alleged the district court made two errors during the sentencing
proceedings. The first alleged error was that the district court violated Carter’s Fifth Amendment
privilege against self-incrimination by including with the PSI two psychological evaluations
performed to determine his competency to stand trial. However, at oral argument before this
Court, Carter’s attorney conceded that Carter no longer had a good-faith basis to pursue that
claim and withdrew it. Therefore, the only issue remaining on appeal is whether the district court
erred by failing to sua sponte order a psychological evaluation prior to sentencing, pursuant to
I.C. § 19-2522.
A. This Court will not address the district court’s failure to order a psychological
evaluation pursuant to I.C. § 19-2522 because it is not fundamental error.
       Carter argues that the district court erred by failing to sua sponte order a psychological
evaluation prior to sentencing as required by I.C. § 19-2522. Carter concedes he failed to object
to the lack of an evaluation during the proceedings. However, he contends that this Court may
consider the issue under the “manifest disregard” standard because the fundamental error
doctrine does not apply to preclude review of errors at sentencing proceedings. The State argues
that the fundamental error test applies to claims of error at sentencing and therefore Carter’s
claim may not be heard on appeal because he has failed to demonstrate fundamental error.
1. The fundamental error doctrine applies to claims of error in criminal cases in the trial
courts.
       Carter argues that in cases where a district court fails to order a psychological evaluation
as required by I.C. § 19-2522, the error may be reviewed on appeal, even if the defendant does
not object at sentencing, if the defendant shows that “by failing to order a psychological
evaluation the sentencing court manifestly disregarded the provisions of I.C.R. 32.” State v.
Durham, 146 Idaho 364, 366, 195 P.3d 723, 725 (Ct. App. 2008) (citations omitted). We
disagree and hold that our decision in State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), has

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replaced the “manifest disregard” standard and that all claims of unobjected-to error in criminal
cases are now subject to the fundamental error test set forth in Perry.
       In Perry, this Court reiterated the general rule that “Idaho’s appellate courts will not
consider error not preserved for appeal through an objection at trial.” Perry, 150 Idaho at 224,
245 P.3d at 976 (citing State v. Johnson, 126 Idaho 892, 896, 894 P.2d 125, 129 (1995)). In
Perry, the Court conducted a comprehensive analysis of the fundamental error doctrine and the
circumstances under which it would review unobjected-to error, finally holding:
       In summary, where a defendant alleges that an error occurred at trial, appellate
       courts in Idaho will engage in the following analysis:
         ...
         (2) If the alleged error was not followed by a contemporaneous objection, it
            shall only be reviewed by an appellate court under Idaho’s fundamental error
            doctrine. Such review includes a three-prong inquiry wherein the defendant
            bears the burden of persuading the appellate court that the alleged error: (1)
            violates one or more of the defendant’s unwaived constitutional rights; (2)
            plainly exists (without the need for any additional information not contained
            in the appellate record, including information as to whether the failure to
            object was a tactical decision); and (3) was not harmless. If the defendant
            persuades the appellate court that the complained of error satisfies this three-
            prong inquiry, then the appellate court shall vacate and remand.

Id. at 228, 245 P.3d at 980. Thus, a claim of error that is not preserved by a proper objection may
only be reviewed on appeal if the defendant satisfies the three requirements set forth in Perry.
       In Perry, this Court repeatedly used phrases such as “affects the trial,” “trial errors,” and
“errors occurring at trial” which, understandably, has led other courts and litigants to conclude
that the standard we announced applied only to errors occurring during trial. However, we have
since applied the Perry test to claims of error at proceedings other than the guilt phase, including
sentencing proceedings. For example, State v. Carson was an appeal in which the defendant
claimed the district court improperly instructed the jury during capital sentencing proceedings.
151 Idaho 713, 722, 264 P.3d 54, 63 (2011). In that case, this Court held that the defendant was
required to “show that the instruction constituted fundamental error” because he had failed to
object to the instruction at the sentencing hearing. Id. at 723, 264 P.3d at 64 (citing Perry, 150
Idaho at 226, 245 P.3d at 978)). In another case, the defendant failed to object to a restitution
order entered at sentencing proceedings following a guilty plea. State v. Gomez, 153 Idaho 253,
255, 281 P.3d 90, 92 (2012). On appeal, the Court recognized that “the alleged error occurred
during the proceedings that followed a guilty plea,” and then applied Perry, explaining that “the

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three part test for unobjected-to fundamental error applies to such criminal proceedings.” Id. at
256, 281 P.3d at 93. We have also applied the fundamental error test when reviewing claims of
unobjected-to error at other proceedings following the guilt phase. See, e.g., State v. Longest, 149
Idaho 782, 241 P.3d 955 (2010) (applying Perry to preclude review of defendant’s claim that
prosecution, at hearing following retained jurisdiction, violated terms of a plea agreement). We
therefore hold that the fundamental error test is the proper standard for determining whether an
appellate court may hear claims based upon unobjected-to error in all phases of criminal
proceedings in the trial courts of this state.
        The Court’s analysis in Perry supports this conclusion. That analysis included a review of
the historical development of the fundamental error doctrine with the expressly-stated purpose
“to establish a clear standard going forward . . . .” Perry, 150 Idaho at 220, 245 P.3d at 972. The
language of this statement is singular (“a standard”), reflecting this Court’s intention that there
be a single standard for reviewing unobjected-to error. This conclusion is also supported by the
Court’s clearly-stated purpose in engaging in the extensive analysis in Perry, which was “to
clarify the standards employed by Idaho appellate courts in analyzing alleged trial errors for
harmless error or fundamental error, so as to: (1) provide guidance to our Appellate Courts
applying the doctrine; (2) promote judicial fairness and equal application of law by eliminating
unnecessary ambiguities; (3) reinforce the judicial preference for contemporaneous objections
before the trial court.” Id. Having separate standards for unobjected-to error at different phases of
criminal proceedings would not eliminate ambiguity, but would rather lead to further dispute as
to which post-guilt-phase proceedings are subject to the Perry standard and would undermine the
policy considerations underlying this Court’s stated preference for contemporaneous objections.
We therefore hold today that the Perry standard applies to all claims of error relating to
proceedings in criminal cases in the trial courts.
2. Carter has failed to demonstrate fundamental error.
        Under Perry, it is the defendant’s burden to demonstrate that “the alleged error: (1)
violates one or more of the defendant’s unwaived constitutional rights; (2) plainly exists (without
the need for any additional information not contained in the appellate record, including
information as to whether the failure to object was a tactical decision); and (3) was not
harmless.” Id. at 228, 245 P.3d at 980. To show reversible error in this context, the appellant



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must show “that the error affected the defendant’s substantial rights, meaning (in most cases)
that it must have affected the outcome. . . .” Id. at 226, 245 P.3d at 978.
        In this case, Carter claims the district court erred by failing to order a pre-sentencing
psychological evaluation in compliance with I.C. § 19-2522. Thus, Carter’s claim is based upon
a statutory violation, not upon a violation of one of his constitutional rights. As Carter’s claim
fails to satisfy the threshold requirement established in Perry, Carter’s claim is not reviewable as
it does not constitute fundamental error.
        Carter asserts that the affirmative duty imposed upon the district court by I.C. § 19-2522
to order a psychological evaluation permits this Court to review claims of error, even in the
absence of an objection. We find the argument unpersuasive. It is axiomatic that a trial court has
a duty to follow all of Idaho’s laws and rules. However, it does not follow that this duty relieves
a party of its obligation to preserve its claims of error by making an appropriate objection at the
time of the error. Our view was well-stated by then-Chief Judge Gratton in his concurrence to an
unpublished decision of the Court of Appeals:
        While a psychological evaluation under I.C. § 19-2522 is mandatory upon the
        discretionary finding that there is reason to believe that mental health will be a
        significant factor at sentencing, the “duty” of the district court to correctly apply
        that law is no different than the “duty” of the district [court] to correctly apply any
        law. Most assuredly, sentencing of a defendant without information deemed
        necessary to correctly and legally do so involves the impairment of a right of the
        defendant. Perry, however, requires the right of the defendant—to which review
        of unobjected-to error is sought—be of constitutional significance . . . . The
        district court’s “duty” to correctly apply I.C. § 19–2522 does not set it apart from
        any other law that the district court is duty-bound to apply. 3

                                           IV. CONCLUSION
        Because Carter has failed to demonstrate fundamental error, we affirm the district court’s
judgment of conviction and sentence.


        Chief Justice BURDICK and Justices EISMANN, J. JONES and W. JONES, CONCUR.




3
  We have quoted Judge Gratton’s statement from another opinion for which this Court has granted a petition for
review. Thus, there is no citation for this quotation for the reasons explained in footnote 1, supra.

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