               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 38701

STATE OF IDAHO,                                  )     2012 Unpublished Opinion No. 661
                                                 )
       Plaintiff-Respondent,                     )     Filed: October 5, 2012
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
AMANDA LEANN SKOGEN,                             )     THIS IS AN UNPUBLISHED
                                                 )     OPINION AND SHALL NOT
       Defendant-Appellant.                      )     BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Fred M. Gibler, District Judge.

       Judgment of conviction and unified sentence of thirteen years, with a minimum
       period of confinement of four years, for voluntary manslaughter, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant. Brian R. Dickson argued.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent. Jessica M. Lorello argued.
                 ________________________________________________
MELANSON, Judge
       Amanda Leann Skogen appeals from her judgment of conviction and sentence for
voluntary manslaughter. For the reasons set forth below, we affirm.
       On October 4, 2010, medics responded to a call from Skogen, who reported a three-year-
old child she was babysitting had become limp and nonresponsive.           Emergency personnel
transported the child to the hospital, where doctors determined that the child suffered from two
skull fractures. The child eventually died as a result of these injuries. Police questioned Skogen
regarding possible abuse of the child, and Skogen denied any wrongdoing.            Officers then
questioned family members of the child regarding possible abuse. The following day, Skogen
underwent a polygraph examination and failed. She then admitted to pushing the child, causing
his head to strike the floor. After the child’s death, Skogen was arrested and charged with first
degree murder. I.C. §§ 18-4001, 18-4003(d).



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       Skogen pled guilty to voluntary manslaughter. I.C. § 18-4006(1). At sentencing, Skogen
argued that the goals and objectives of sentencing would be satisfied through a suspended
sentence and a term of probation. The district court sentenced Skogen to a unified term of
thirteen years, with a minimum period of confinement of four years. Skogen appeals.
       Skogen argues that the district court erred in considering general deterrence as a factor
when imposing her sentence. This is an argument that was not proffered to the district court, nor
raised through any objection at sentencing. Generally, issues not raised below may not be
considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126
(1992). Idaho decisional law, however, has long allowed appellate courts to consider a claim of
error to which no objection was made below if the issue presented rises to the level of
fundamental error. See State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007); State v.
Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262 (1971). In State v. Perry, 150 Idaho 209, 245
P.3d 961 (2010), the Idaho Supreme Court abandoned the definitions it had previously utilized to
describe what may constitute fundamental error. The Perry Court held that an appellate court
should reverse an unobjected-to error when the defendant persuades the court that the alleged
error: (1) violates one or more of the defendant’s unwaived constitutional rights; (2) is clear or
obvious without the need for reference to any additional information not contained in the
appellate record; and (3) affected the outcome of the trial proceedings. Id. at 226, 245 P.3d at
978. This test applies to both trials and criminal proceedings following a guilty plea, including
alleged error at sentencing. State v. Stocks, 153 Idaho 171, 174, 280 P.3d 198, 201 (Ct. App.
2012); see also State v. Longest, 149 Idaho 782, 783-84, 241 P.3d 955, 956-57 (2010) (applying
the fundamental error doctrine to a hearing at the end of a retained jurisdiction period).
       Skogen does not allege that consideration of general deterrence violates any of her
constitutional rights. Further, any alleged error is not clear or obvious without reference to
additional information not in the appellate record. Indeed, Skogen’s argument, relying heavily
on criminal justice articles, demonstrates the overwhelming need to resort to extrinsic
information not in the appellate record. These articles, in effect, are new evidence that would be
improper to consider for the first time on appeal. Consideration of general deterrence did not
affect Skogen’s substantial rights because the sentence imposed was not solely based on that
factor. The district court found that punishment was a significant factor at sentencing as well.
Indeed, retribution serves an important purpose in this case, as it “embodies a vindication of


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society’s interest in condemning criminal conduct.” State v. Landreth, 118 Idaho 613, 616, 798
P.2d 458, 461 (Ct. App. 1990). As this Court in Landreth noted, retribution “is particularly
strong in crimes involving tragic or senseless acts.” Id. Further, even if general deterrence were
the only factor considered, the sentence would still be upheld under our prior precedent, which
has recognized one factor alone may be sufficient. See e.g., State v. Waddell, 119 Idaho 238,
241, 804 P.2d 1369, 1372 (Ct. App. 1991) (stating that a sentence need not serve all sentencing
goals and, in some cases, one may be sufficient). Thus, Skogen’s argument that the district court
erred by considering general deterrence as a factor when imposing her sentence will not be
considered because it fails to meet the fundamental error test. 1 See Perry, 150 Idaho at 226, 245
P.3d at 978.
       We next address Skogen’s challenge to the appropriateness of her sentence. Skogen
argues that, at sentencing, the district court failed to adequately consider a packet of cases she
submitted showing sentences ordered in other cases, failed to address all possible mitigating
factors, and violated separation of power principles in considering Skogen’s position of trust as a
babysitter to be an aggravating factor.
       The district court considered a number of mitigating circumstances in sentencing Skogen,
including her lack of a criminal record, the support of family and friends, and the stress in
Skogen’s life at that time. The district court focused on general deterrence and retribution.
Regarding protection of society, the district court noted that Skogen was unlikely to commit a
similar act in the future, but did not expressly find that protection of society was completely
absent. 2 Lastly, the district court noted that “there’s certainly an aggravating factor here in that,
Ms. Skogen, you were a baby-sitter of [the child]. You were in a position of trust, and you
abused that trust.”




1
        Even if we were to consider Skogen’s argument, her concept of general deterrence is
fundamentally flawed in assuming individuals contemplate specific sentences from specific cases
before they act. The power of general deterrence is derived from knowing that certain acts will
carry with them certain consequences--namely, prosecution by the state and punishment, not
simply the amount of punishment.
2
        Indeed, it is plain from the record that the district court did not view Skogen as a
nonculpable defendant, as the district court indicated she very well may have been minimizing
her actions.

                                                  3
        An appellate review of a sentence is based on an abuse of discretion standard. State v.
Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal,
the appellant has the burden to show that it is unreasonable and, thus, a clear abuse of discretion.
State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such
an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice,
103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it
appears at the time of sentencing that confinement is necessary “to accomplish the primary
objective of protecting society and to achieve any or all of the related goals of deterrence,
rehabilitation or retribution applicable to a given case.” State v. Toohill, 103 Idaho 565, 568, 650
P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed
an excessively harsh sentence, we conduct an independent review of the record, having regard
for the nature of the offense, the character of the offender, and the protection of the public
interest.   State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). When
reviewing the length of a sentence, we consider the defendant’s entire sentence. State v. Oliver,
144 Idaho 722, 726, 170 P.3d 387, 391 (2007). Idaho does not engage in comparative sentencing
in determining what a reasonable term of imprisonment is. State v. Pederson, 124 Idaho 179,
183, 857 P.2d 658, 662 (Ct. App. 1993). Further, Idaho’s sentencing scheme does not require
the district court to make findings of fact under I.C. § 19-2521. State v. Stevens, 146 Idaho 139,
149, 191 P.3d 217, 227 (2008); see also State v. Thomas, 133 Idaho 682, 688, 991 P.2d 870, 876
(Ct. App. 1999) (court is not required to recite the sentencing guidelines of I.C. § 19-2521 during
sentencing, nor even required to give reasons for imposing the sentence).
        A review of the record establishes that the district court was within its discretion in
imposing a unified term of thirteen years, with a minimum period of confinement of four years.
With regard to the packet of cases submitted by Skogen, the district court properly declined to
engage in comparative sentencing. See Pederson, 124 Idaho at 183, 857 P.2d at 662. 3 It is of no
import that the district court did not expressly articulate each and every factor under I.C. § 19-
2521(1) or I.C. § 19-2523. See Stevens, 146 Idaho at 149, 191 P.3d at 227; Thomas, 133 Idaho at




3
       To the extent Skogen argues on appeal that this packet demonstrates the ineffectiveness
of general deterrence, we note that this was not the purpose they were offered for below. At
sentencing, this packet was offered for what amounted to a request for comparative sentencing.

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688, 991 P.2d at 876. Last, considering the position of trust a babysitter holds as an aggravating
factor in sentencing raises no separation of power issues.
       Skogen’s argument that the district court erred by considering general deterrence as a
factor when imposing her sentence fails to meet the fundamental error test. Also, the district
court did not abuse its discretion in imposing a unified term of thirteen years, with a minimum
period of confinement of four years. Therefore, Skogen’s judgment of conviction and sentence
for voluntary manslaughter are affirmed.
       Chief Judge GRATTON and Judge GUTIERREZ, CONCUR.




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