               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 40525

STATE OF IDAHO,                                 )     2014 Unpublished Opinion No. 479
                                                )
       Plaintiff-Respondent,                    )     Filed: April 25, 2014
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
MICHAEL FRANCIS MOORE,                          )     THIS IS AN UNPUBLISHED
                                                )     OPINION AND SHALL NOT
       Defendant-Appellant.                     )     BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Richard D. Greenwood, District Judge.

       Judgment of conviction and unified sentence of five years, with a minimum
       period of confinement of one year, for burglary, affirmed; order denying I.C.R. 35
       motion for reduction of sentence, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       Pursuant to a plea agreement, Michael Francis Moore pled guilty to one count of
burglary. I.C. § 18-1401. The terms of the agreement provided that the state would recommend
probation provided that Moore did not fail to appear for any court hearings. Moore failed to
appear at sentencing and the district court issued a warrant. Officers subsequently arrested
Moore on the warrant. At sentencing, Moore requested that the district court order a mental
health evaluation pursuant to I.C. § 19-2524. The district court reviewed Moore’s mental health
history contained in the records attached to the presentence investigation report and determined
Moore’s history of mental illness was already well documented and that an I.C. § 19-2524
evaluation would not provide any additional information. The district court imposed a unified
sentence of five years, with a minimum period of confinement of one year. Moore filed an




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I.C.R. 35 motion for reduction of sentence and presented additional evidence. The district court
denied the motion. Moore appeals.
       Moore argues the district court erred by failing to order a mental health evaluation
pursuant to I.C. § 19-2522. Moore also argues the district court erred by denying his Rule 35
motion for reduction of sentence in light of new information Moore presented at the Rule 35
hearing. The state responds Moore did not request this specific evaluation, and therefore, it is
not properly before this Court for the first time on appeal. The state also contends Moore has
failed to establish the district court abused its discretion in denying his Rule 35 motion.
       Moore’s claim of error was not preserved by a proper objection before the district court.
Moore specifically requested a mental health evaluation pursuant to I.C. § 19-2524. Moore did
not request a psychological evaluation under I.C. § 19-2522. While Moore contends “counsel
was only required to bring the issue of Moore’s mental health condition to the attention of the
district court and request further evaluation of Moore’s mental health,” this misapprehends what
is required for preservation of an issue for appeal. At the sentencing hearing, counsel for Moore
stated as follows:
               And it seems--it’s come to my attention that at the time of this incident,
       Mr. Moore was experiencing hallucinations, symptoms of his schizophrenia. He
       is also bipolar and is not on his medication. And it has come to my attention that
       his mental health issues probably played a very big role in this incident.
               I know the Court and the State is not in support of his mental health court
       screening, and I think it’s also because the crime is burglary, and they probably
       won’t accept him because of that. But I think it would be a beneficial--if he had a
       19-2524 mental health evaluation, I think that information would be beneficial to
       this Court prior to his sentencing.

This passage demonstrates counsel was requesting an evaluation pursuant to I.C. § 19-2524, not
further evaluation generally, as Moore argues on appeal. For an objection to be preserved for
appellate review, either the specific ground for the objection must be clearly stated, or the basis
of the objection must be apparent from the context. I.R.E. 103(a)(1); State v. Sheahan, 139
Idaho 267, 277, 77 P.3d 956, 966 (2003). Moore failed to articulate the specific ground and the
basis is not apparent from the context. Therefore, this issue was not objected to below.
       The fundamental error standard articulated in State v. Perry, 150 Idaho 209, 245 P.3d 961
(2010) 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.



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State v. Carter, 155 Idaho 170, 174, 307 P.3d 187, 191 (2013). Thus, we apply the fundamental
error standard in determining whether to review Moore’s claim. In Perry, the Idaho Supreme
Court abandoned the definitions it 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. Perry, 150 Idaho at 226, 245 P.3d at 978.
        In Carter, the Idaho Supreme Court considered an unobjected-to claim of error based on
the district court’s failure to sua sponte order a mental health evaluation and determined that the
alleged error was based on a statutory violation, not upon a violation of a constitutional right.
Carter, 155 Idaho at 173-74, 307 P.3d at 190-91. The Court also stated that the affirmative duty
imposed upon the district court by I.C. § 19-2522 to order a mental health evaluation does not
relieve the defendant of the obligation to preserve the claim of error by making an appropriate
objection. Carter, 155 Idaho at 173-74, 307 P.3d at 190-91. Therefore, the Court did not review
the error as it failed to satisfy the first prong established in Perry. Carter, 155 Idaho at 173-74,
307 P.3d at 190-91. Likewise, in this case, Moore’s claim is based upon a statutory violation,
not upon a violation of his constitutional rights. Therefore, Moore is unable to satisfy the first
prong of the Perry fundamental error standard. Thus, we will not review Moore’s claim of error
with respect to the I.C. § 19-2522 psychological evaluation.
       Next, we address Moore’s claim that the district court abused its discretion by failing to
reduce his sentence after the Rule 35 hearing. A motion for reduction of sentence under Rule 35
is essentially a plea for leniency, addressed to the sound discretion of the court. State v.
Knighton, 143 Idaho 318, 319, 144 P.3d 23, 24 (2006); State v. Allbee, 115 Idaho 845, 846, 771
P.2d 66, 67 (Ct. App. 1989). In presenting a Rule 35 motion, the defendant must show that the
sentence is excessive in light of new or additional information subsequently provided to the
district court in support of the motion. State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840
(2007). Upon review of the record, including the new information submitted with Moore’s
Rule 35 motion, we conclude no abuse of discretion has been shown. Accordingly, Moore’s
judgment of conviction and sentence for burglary and the district court’s order denying Moore’s
Rule 35 motion for reduction of sentence are affirmed.


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        Judge LANSING, CONCURRING IN THE RESULT
       I do not agree with the lead opinion’s assessment that the issue raised on appeal was not
preserved for review. I conclude, however, that the district court correctly determined that a new
psychological evaluation was not needed in view of the extensive information already before the
district court concerning Moore’s mental health condition and history.
       Chief Judge GUTIERREZ, joins in Judge Lansing’s opinion and also CONCURS IN
THE RESULT.




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