               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 40458

STATE OF IDAHO,                                  )      2013 Unpublished Opinion No. 786
                                                 )
       Plaintiff-Respondent,                     )      Filed: December 10, 2013
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
CHRISTINA ALICIA BOLAN,                          )      THIS IS AN UNPUBLISHED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. Cheri C. Copsey, District Judge.

       Judgment of conviction and sentence for possession of a controlled substance,
       affirmed.

       Nevin, Benjamin, McKay & Bartlett LLP; Dennis A. Benjamin, Boise, for
       appellant.

       Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Christina Alicia Bolan appeals from her judgment of conviction and sentence for
possession of a controlled substance, Idaho Code § 37-2732(c). We affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Officers executed a search warrant at Bolan’s residence finding methamphetamine,
amphetamine, and marijuana. Pursuant to a plea agreement, Bolan was to plead guilty to
possession of a controlled substance, methamphetamine. The first attempt to accept Bolan’s
guilty plea was unsuccessful; because of Bolan’s demeanor, the district court requested a drug
test, which came back positive for methamphetamine and the court rescheduled the hearing. The
following week, the district court accepted Bolan’s guilty plea and ordered a substance abuse
evaluation as part of the presentence investigation. At sentencing, the district court indicated it



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carefully read and reviewed the presentence investigation report (PSI), which included multiple
references to Bolan’s traumatic childhood and her mental health.
       Before the district court sentenced Bolan, the parties were asked if any other evaluation
or investigation was necessary. The State and Bolan’s counsel responded, “No.” Bolan was
sentenced to a unified term of six years, with two years determinate. The district court also
retained jurisdiction and recommended that while serving her rider, Bolan participate in the
Correctional Alternative Placement Program (CAPP).
       While on her rider, Bolan was removed from multiple programs because she copied other
inmates’ assignments and she also failed the relapse prevention course. At the rider review
hearing, Bolan requested to be placed in drug court and asked the district court not to execute her
sentence. The district court emphasized Bolan’s dishonesty in the rider program and executed
her sentence.
                                                II.
                                           ANALYSIS
       Bolan alleges the district court erred in failing to order a psychological evaluation
pursuant to I.C. § 19-2522; however, she failed to object at sentencing. The Idaho Supreme
Court recently held “that all claims of unobjected-to error in criminal cases are now subject to
the fundamental error test set forth in Perry [150 Idaho 209, 226, 245 P.3d 961, 978 (2010)].”
State v. Carter, 155 Idaho 170, 173, 307 P.3d 187, 190 (2013). Under Perry the defendant must
show 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.
       Failure to order a presentencing psychological evaluation in compliance with I.C. § 19-
2522 is a statutory violation claim. Carter, 155 Idaho at 174, 307 P.3d at 191. Because a
statutory violation is not an alleged constitutional error, it fails to meet Perry’s threshold
requirement and is not fundamental error. Carter, 155 Idaho at 174, 307 P.3d at 191. Bolan
alleges a statutory violation and thus fails to establish fundamental error and the claimed error is
unreviewable.
       Bolan also contends the district court abused its discretion by failing to consider mental
health factors at sentencing pursuant to I.C. § 19-2523. An appellate review of a sentence is


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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).
       Additionally, if the defendant’s mental condition is a significant factor, the sentencing
court must also consider the defendant’s mental health at sentencing. I.C. § 19-2523; State v.
Miller, 151 Idaho 828, 834, 264 P.3d 935, 941 (2011). If implicated, I.C. § 19-2523 requires the
court to consider:
       (a) The extent to which the defendant is mentally ill;
       (b) The degree of illness or defect and level of functional impairment;
       (c) The prognosis for improvement or rehabilitation;
       (d) The availability of treatment and level of care required;
       (e) Any risk of danger which the defendant may create for the public, if at large,
       or the absence of such risk;
       (f) The capacity of the defendant to appreciate the wrongfulness of his conduct or
       to conform his conduct to the requirements of law at the time of the offense
       charged.

I.C. § 19-2523(1)(a)-(f). A defendant’s mental health is only one of the factors to be considered
and weighed by the court at sentencing; the statute does not require that a defendant’s mental
condition be the controlling factor at sentencing, nor does it require the district court to
specifically reference all of the factors of I.C. § 19-2523. Miller, 151 Idaho at 836, 264 P.3d at
943; State v. Strand, 137 Idaho 457, 461, 50 P.3d 472, 476 (2002); State v. Quintana, 155 Idaho
124, 129, 306 P.3d 209, 214 (Ct. App. 2013). However, the record must show the court
adequately considered the substance of the factors when it imposed the sentence. Miller, 151
Idaho at 836, 264 P.3d at 943; Strand, 137 Idaho at 461, 50 P.3d at 476.




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       Because we find the district court complied with I.C. § 19-2523, we assume for this
appeal that Bolan’s mental health was a significant factor and the statute was implicated. 1 In
Strand, the Idaho Supreme Court held that the record adequately showed the district court
reviewed the I.C. § 19-2523 factors:
               In this case, the district court continued completion of the sentencing
       hearing in order to obtain a psychological examination of the Defendant. The
       record shows that the district court reviewed the report of that examination prior
       to sentencing the Defendant. In fact, the district court quoted portions of the
       report during the sentencing hearing. Thus, the district court complied with Idaho
       Code § 19-2523.

Strand, 137 Idaho at 461, 50 P.3d at 476.
       Here, the district court did not expressly recount the specific mental health conditions2
Bolan may have suffered from, but the court carefully read the PSI report and explicitly
acknowledged Bolan’s traumatic past, which the reports indicated played a large role in Bolan’s
mental health problems. The court, while referencing the reports, discussed with Bolan that she
had the ability to get beyond her past and that there was hope for recovery. While not directly
relating its findings to individual factors of I.C. § 19-2523, the district court discussed the danger
Bolan posed of relapsing if put on probation, her ability for rehabilitation, and recommended
CAPP to help her achieve recovery. The district court indicated its primary purpose was to get
Bolan well and acknowledged that Bolan was not a bad person, but that she had a lot
overwhelming her.
       Bolan argues that the court’s comments that she move beyond her past indicates that the
district court did not review the attached evaluations because the reports recommended treatment
focusing on dealing with her past. The court offering Bolan advice to rise above her past and to
focus on her future does not indicate the district court was suggesting to Bolan that she ignore

1
        The district court made no express determination that Bolan’s mental health was a
significant factor and Bolan failed to object to the lack of a psychological evaluation. As noted
above, under Carter, failure to object to lack of a psychological evaluation precludes a court
from reviewing alleged error under I.C. § 19-2522. Because we determine the district court
adequately considered the mental health factors, we need not determine whether the district court
was unaware of mental health problems. Failure to object precludes review under I.C. § 19-
2523.
2
       The PSI reviewed Bolan’s potential mental health disorders, which included major
depressive disorder recurrent, anxiety, PTSD, ADHD, and Dysthymia disorder.

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mental health treatment or simply forget about her past all together. The district court carefully
considered the reports and focused much of its express attention on Bolan’s immediate need for
substance abuse treatment at sentencing, which is not surprising since the State and Bolan did not
request a psychological evaluation or place any emphasis on Bolan’s mental health.              The
preeminent theme was substance abuse. At the rider review hearing, Bolan again did not raise
her mental health as a significant factor, but instead requested to be placed in drug court. I.C.
§ 19-2523 does not require that mental health be the controlling factor, it simply requires that the
factors are considered. The record shows the district court adequately considered the statutory
factors.
                                                  III.
                                           CONCLUSION
           This Court will not review the lack of a psychological evaluation because Bolan failed to
object at sentencing. Additionally, the district court did not abuse its discretion because it
adequately considered the I.C. § 19-2523 factors. Bolan’s judgment of conviction and sentence
are affirmed.
           Chief Judge GUTIERREZ and Judge LANSING CONCUR.




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