               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 38866

STATE OF IDAHO,                                )     2013 Opinion No. 10
                                               )
       Plaintiff-Respondent,                   )     Filed: February 12, 2013
                                               )
v.                                             )     Stephen W. Kenyon, Clerk
                                               )
MANUEL GARCIA VELASCO,                         )
                                               )
       Defendant-Appellant.                    )
                                               )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Bingham County. Hon. Darren B. Simpson, District Judge.

       Judgment of conviction and sentence for lewd conduct with minor child under
       sixteen, vacated and case remanded for resentencing.

       Sara B. Thomas, State Appellate Public Defender; Justin M. Curtis, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Manuel Garcia Velasco appeals from the district court’s judgment of conviction and
sentence for lewd conduct with minor child under sixteen, Idaho Code § 18-1508. We vacate
and remand for resentencing.
                                              I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Prior to conviction, the district court ordered a competency evaluation pursuant to I.C.
§ 18-211. The evaluation found that Velasco was competent to stand trial. However, the
evaluation also suggested that Velasco exaggerated his neurocognitive difficulties and that his
performance suggested a “malingered cognitive dysfunction.” At a change of plea hearing,




                                              1
Velasco alleged that he was incapable of remembering the crime. He then entered an Alford
plea. 1
          The district court ordered a psychosexual evaluation (PSE), which was performed by the
same doctor who performed the competency evaluation. During the PSE, Velasco underwent a
polygraph examination, which alerted the doctor that he was being deceptive in many of his
answers.      After being confronted with the results of the polygraph examination, Velasco
admitted that he remembered the crime and admitted that he sexually abused the victim. The
written PSE included a section which summarized the competency evaluation and also reported
on the information learned as a result of the polygraph.
          At sentencing, defense counsel and the State recommended a sentence of probation.
While questioning defense counsel about the recommendation, the district court referenced the
competency evaluation and the competency evaluation summary contained in the PSE. The
district court then imposed and executed a unified sentence of thirty years with ten years
determinate.
          Velasco appealed, but his appellate counsel failed to file an appellate brief and the appeal
was dismissed. However, the district court granted Velasco post-conviction relief and reentered
the judgment of conviction. Velasco timely appeals.
                                                  II.
                                             ANALYSIS
          Velasco claims that the district court violated his Fifth Amendment privilege against self-
incrimination by considering for sentencing purposes information contained in his competency
evaluation report. The Fifth Amendment to the United States Constitution guarantees that “No
person . . . shall be compelled in any criminal case to be a witness against himself.” This
safeguard against compelled self-incrimination applies to both the guilt and penalty phases of a
trial. Mitchell v. United States, 526 U.S. 314, 325-27 (1999); Estelle v. Smith, 451 U.S. 454,
462-63 (1981); Estrada v. State, 143 Idaho 558, 563-64, 149 P.3d 833, 838-39 (2006); State v.
Lankford, 116 Idaho 860, 871-72, 781 P.2d 197, 208-09 (1989). A competency evaluation of
one charged with a crime ordinarily does not implicate the Fifth Amendment because any
disclosures made by the defendant are not used against him but are used only for the neutral,



1
          See North Carolina v. Alford, 400 U.S. 25 (1970).

                                                   2
limited purpose of determining whether he is competent to stand trial. See Estelle, 451 U.S. at
465. Fifth Amendment rights come into play, however, if disclosures made during a competency
evaluation, or medical conclusions derived from such disclosures, are later used against the
defendant at either the guilt or penalty phase of the proceedings. Id. See also Estrada, 143
Idaho at 564, 149 P.3d at 839 (“Incrimination is implicated . . . when punishment could be
enhanced as a result of the defendant’s statements.”). Consequently, statements made by an
accused during a competency evaluation and derivative psychiatric opinions generally may not
be admitted against the individual for sentencing purposes unless the defendant was advised of
the right against self-incrimination and waived those rights. Estelle, 451 U.S. at 469; State v.
Jockumsen, 148 Idaho 817, 820, 229 P.3d 1179, 1182 (Ct. App. 2010).
       Velasco did not object to the district court referencing his competency evaluation or the
summary thereof during sentencing. He therefore asserts the error is fundamental in order to
obtain appellate review. 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) the error is clear or obvious
without the need for reference to any additional information not contained in the appellate
record; and (3) the error affected the outcome of the trial proceedings. Id. at 226, 245 P.3d at
978.
       We start by discussing whether a constitutional violation occurs when a summary of a
competency evaluation is included in a PSE report that the court relies on for sentencing
purposes. The United States Supreme Court has held that competency evaluations used against
the defendant implicate the Fifth Amendment in certain circumstances. Estelle, 451 U.S. at 466.
In Estelle, the court ordered a psychiatrist to examine the defendant in order to determine his
competency to stand trial. The psychiatrist determined he was competent. The trial proceeded


                                                3
and resulted in a guilty conviction. During the sentencing hearing, the prosecution called the
psychiatrist to the stand to testify regarding the competency evaluation. The psychiatrist testified
that the defendant was a very severe sociopath and would continue his previous behavior. The
psychiatrist was the only witness for the State during the sentencing hearing. The defendant was
sentenced to death. The Supreme Court granted certiorari to review the case and held that the
defendant’s Fifth Amendment was implicated because the psychiatrist’s testimony resulted in
statements by the defendant being used against him in order to obtain the death penalty. Id. at
464-69.
       Likewise, this Court has held that using competency evaluations against a defendant
during sentencing is a violation of the Fifth Amendment. Jockumsen, 148 Idaho at 822, 229 P.3d
at 1184. In Jockumsen, competency evaluations were attached to the presentence investigation
report (PSI). This Court determined that the competency evaluations were “improperly placed
before the court as attachments to the PSI.”         Id. at 821, 229 P.3d at 1183.     Because the
competency evaluations were used against Jockumsen at his sentencing hearing, his Fifth
Amendment rights were implicated. In a footnote, this Court also suggested the discontinuance
of the practice of attaching competency evaluations to PSIs. Id. n.1.
       In this case, we determine that Velasco’s Fifth Amendment privilege against self-
incrimination was implicated because the findings from his competency evaluation were
included in the PSE and used against him at sentencing. In the PSE, the doctor included a
section entitled, “PRIOR COMPETENCY EVALUATION FINDINGS.” This section explained
that the doctor previously evaluated Velasco to determine his competency to stand trial and
provided a summary of the findings of that evaluation. The doctor’s summary of his competency
evaluation in the PSE is akin to attaching the actual competency evaluation to a PSI. First, the
summary of a competency evaluation and the actual competency evaluation contain very nearly
the same information and findings, only the summary is more concise. 2 Second, both PSEs and



2
        The State claims that the PSE’s summary of the competency evaluation constitutes
findings of the PSE. Therefore, the State asserts that the district court could properly consider
the information in the competency evaluation summary. We disagree. The summary of the
competency evaluation was included at the beginning of the PSE as a review of the doctor’s prior
evaluation, not as findings of the PSE. The conclusions and recommendations of the PSE do not
refer to any of the information from the competency evaluation. Therefore, we do not further
address this claim.

                                                 4
PSIs are considered by the court for sentencing purposes. See I.C. § 18-8316; Idaho Criminal
Rule 32. As in Estelle, this results in the defendant’s own statements being used against him in
the sentencing hearing. Indeed, in this case, the district court referred to both the summary of the
competency evaluation contained in the PSE and referred to the actual competency evaluation.
Consequently, we determine that Velasco’s Fifth Amendment privilege against self-
incrimination was violated. 3 As we stated in Jockumsen, if it is a practice to summarize or attach
competency evaluations in PSEs, the practice should be discontinued.
       We must next determine whether the constitutional violation was clear or obvious from
the record. The State contends that it is unclear from the record whether defense counsel’s
failure to object was a tactical decision. The State argues that the principal information from the
competency evaluation was known to the district court independent of the competency
evaluation and the summary thereof. In essence, the State argues that the district court could
have concluded on its own that Velasco had feigned an inability to recall the crime at the time of
the Alford plea, due to his clear recollection and admission after being confronted with the
polygraph results. This, the State implies, is no different than the diagnosis of “malingered
cognitive dysfunction” from the competency evaluation. Thus, the State reasons that defense
counsel likely made a tactical decision not to object because the court was possessed of similar
non-objectionable information. 4    The State also argues that because the court could have
independently concluded that Velasco had faked an inability to recall, any reliance on similar
information from the PSE summary of the competency evaluation was harmless.


3
        The State claims that Velasco waived his Fifth Amendment privilege as to the PSE by
failing to remain silent during the evaluation. Since Velasco waived his privilege as to the PSE,
and since the PSE contains findings from the competency evaluation, the State asserts that
Velasco thereby waived his privilege as to the competency evaluation summary contained in the
PSE. We disagree that a person can waive his Fifth Amendment privilege during the
competency evaluation simply because the doctor included those findings in a PSE. Therefore,
we do not further address this claim.
4
        The State further contends that defense counsel may not have objected to the use of the
competency evaluation in order to preserve the use of the favorable PSE. As a result of the PSE,
defense counsel and the prosecution recommended a sentence of probation. By objecting to the
use of the competency evaluation in the PSE, the State argues that Velasco could have risked the
loss of the favorable PSE. However, defense counsel could have objected to any references to
the competency evaluation without objecting to the entire PSE, thereby preserving the favorable
recommendations in the PSE.

                                                 5
       Velasco claims that the district court significantly relied upon the information in the
competency evaluation beyond and apart from any independent conclusions the court could have
reached. In addition, Velasco asserts that the reliance on such information affected the sentence
imposed.
       As noted, Velasco initially denied recall of the charged events.          The competency
evaluation stated that Velasco had neurocognitive difficulties but expressed concerns about the
nature and extent of his cognitive abilities because he had not put forth a consistent and complete
effort on testing procedures. The competency evaluation suggested that Velasco exaggerated his
neurocognitive difficulties and that his testing performance showed a “malingered cognitive
dysfunction.” After being confronted with the results of the polygraph, Velasco acknowledged
recall of the events and ultimately admitted the allegations. At sentencing, defense counsel
asked for probation and attempted to minimize Velasco’s prior deception arguing that the sexual
misconduct allegations were “a hard matter to admit,” and that Velasco was repressing his guilt.
In response, the court engaged counsel as follows:
       COURT:                 [Defense counsel], do you really think a sentence of
                              probation is appropriate given the age of the victim at the
                              time of the offense?
       [COUNSEL]:             I do, Your Honor, and--
       COURT:                 Especially where it appears that Dr. Lindsey, to some
                              degree, really pegged his neurocognitive function at the
                              beginning where he figured that he was--what was the term
                              he used? Let’s see if I can find it here. I want to say
                              manipulating; but I don’t think that was the actual term he
                              used.
       [COUNSEL]:             Are you, are you thinking of the prior competency
                              evaluation?
       COURT:                 Yes.
       [COUNSEL]:             I think that’s on page 2 of the psychosexual.
       COURT:                 Oh, malingering was the term that he used, right?
       [COUNSEL]:             I don’t recall him using that term here in the psychosexual;
                              but I believe he--
       COURT:                 That was the term he used initially, and that’s why we
                              jumped through all these hoops with him.




                                                6
Thereafter, the prosecution clarified which evaluation the term malingering originated:

       [PROSECUTION]: Your Honor, before I share my recommendation, I would
                      note on Dr. Lindsey’s 18-211 report dated March 10, 2008,
                      at the bottom of page 3--it’s the very last line on that--it
                      indicates that Mr. Velasco’s responses and performance
                      under the condition were inconsistent and suggested of a
                      malingered cognitive dysfunction. . . . And, and I think
                      that’s kind of what the Court was referring to earlier.

        The district court further relied on the competency evaluation by referencing the
notation that Velasco put forth inconsistent and inadequate effort on the testing procedures:
       COURT:                 The other thing that was of concern of Dr. Lindsey and a
                              concern of this Court, as we’ve discussed, is that given
                              your neurocognitive functioning, you tend to play upon that
                              and exaggerate that deficit to more than what it really is,
                              which may have a bearing on how treatable you are.
       ....
       COURT:                 In addition, part of my concern that I have with, with your
                              evaluation, as indicated by Dr. Lindsey on page 2, is that
                              we still have some concerns about the nature and severity
                              and extent of your cognitive abilities because you didn’t
                              put forth a consistent and adequate effort on those testing
                              procedures.

        The medical diagnosis and the competency evaluation’s notation that Velasco put forth
inconsistent and inadequate effort on the testing procedures were relied on by the court to
conclude something beyond what defense counsel argued--that Velasco’s guilt was hard to
admit. The district court relied on the medical opinion to conclude that Velasco had malingered
cognitive dysfunction instead of simply noting that Velasco denied the allegations and then
admitted them. In other words, while the district court, as the State suggests, could have
independently concluded that Velasco lied on this occasion, the district court instead relied on
the competency evaluation to determine that Velasco possessed a trait of exaggerating
neurocognitive dysfunction, something the district court could only conclude from the
competency evaluation information. Based upon this information, the Court clearly expressed
reservations about Velasco’s treatability, a significant sentencing concern. The information
which the district court possessed independently and the information from the competency
evaluation were significantly different and, thus, do not support the State’s claims regarding
defense counsel’s failure to object being a tactical decision. Moreover, considering the probation


                                                7
recommendations from the PSE, the prosecutor, and defense counsel against the sentence
received amid the district court’s reservations regarding treatability, Velasco has demonstrated a
reasonable probability that the error affected sentencing and, therefore, was not harmless.
                                               III.
                                        CONCLUSION
       The district court erred by relying on Velasco’s competency evaluation during
sentencing. Therefore, we vacate the district court’s sentence and remand for resentencing.
       Chief Judge GUTIERREZ and Judge MELANSON CONCUR.




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