               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38799

STATE OF IDAHO,                                   )     2014 Unpublished Opinion No. 316
                                                  )
       Plaintiff-Respondent,                      )     Filed: January 9, 2014
                                                  )
v.                                                )     Stephen W. Kenyon, Clerk
                                                  )
PATRICK ANTHONY MORRISSEY,                        )     THIS IS AN UNPUBLISHED
                                                  )     OPINION AND SHALL NOT
       Defendant-Appellant.                       )     BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. Randy J. Stoker, District Judge.

       Judgment of conviction and sentence, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Jason C. Pintler, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
        After a jury trial, Morrissey was found guilty of conspiracy to commit arson, Idaho
Code §§ 18-802(4), 18-1701, and arson in the first degree, I.C. § 18-802(4). The jury also found
that Morrissey was a persistent violator, I.C. § 19-2514. As to each offense, the district court
imposed a unified sentence of fifteen years, with five years determinate. These sentences ran
concurrently with each other but consecutively with sentences in other cases.           On appeal,
Morrissey argues that the district court erred by failing to order a mental health evaluation and by
imposing an excessive sentence. We affirm the judgment of conviction.
                                                 I.
                                        BACKGROUND
       Because Morrissey asserts sentencing errors and not trial errors, our recitation of the facts
focuses on post-trial issues. Immediately after the jury returned its verdict and was dismissed,
the court issued an order that a presentence investigation report be prepared. At that time, the

                                                 1
court asked Morrissey’s counsel if he would like to request any additional evaluations. Counsel
indicated that he was not requesting any additional evaluations.
       At the sentencing hearing, neither party disputed the contents of the presentence
investigation report (PSI). The report generally showed that Morrissey had significant indicators
of mental illness. Morrissey reported a troubled childhood: he suffered oxygen deprivation at
birth, a parent physically abused him, and he behaved poorly in school. He and others indicated
he had been diagnosed with numerous conditions:               a seizure disorder, attention-deficit
hyperactivity disorder, bipolar disorder, obsessive compulsive disorder, oppositional-defiant
disorder, an unspecified mood disorder, conduct disorder, damage to the limbic region of his
brain, and substance dependence. For these conditions, he had been treated with numerous
psychotropic medications and had self-medicated by abusing alcohol, marijuana, LSD, cocaine,
opium, psilocybin mushrooms, methamphetamine, and prescription opiates.
       In addition to Morrissey’s reports, the PSI contained a psychiatric discharge summary
that was prepared approximately four years before the sentencing hearing. In that document,
Morrissey was diagnosed with conduct disorder and an unspecified mood disorder.                   The
discharge summary indicated that Morrissey was not well-suited for care in the community and
would best be served by treatment in a penal institution because “he cannot voluntarily cooperate
with care.” An earlier report, also in the PSI, diagnosed Morrissey with disruptive behavior
disorder, attention deficit hyperactivity disorder, mixed seizure disorder, and a mixed
developmental disorder.
       At the sentencing hearing, the State argued that Morrissey should be imprisoned on
several grounds. These included Morrissey’s relatively long criminal record including three
prior adult felonies by the age of twenty-two. He had been given opportunities for treatment in
the community and on a rider, but neither had proven effective at reducing Morrissey’s criminal
conduct.
       During the sentencing hearing, the court discussed the reasoning that undergirded its
sentencing decision.    First, it made clear that it had “very carefully read this presentence
investigation.” Then, it discussed the distinction between the view of Morrissey held by his
friends and family and his course of criminal conduct:
       I have gone back and I’ve looked at the history of these other cases and I’m not
       sure what it is that causes your conduct, but it’s clear that it’s been there for years.
       There is an element of kind of a Jekyll and Hyde element going on in your life. If

                                                  2
       I listen to the people that know you like your mother, the mother of your child and
       your friends and so forth, they think that Patrick Morrissey is just a fine, young
       man and has had a tough life and deserves a break and so forth and so forth. If I
       look at the history of this case in terms of your conduct with the legal system,
       you’re the Hyde because you’ve had nothing but problems in schooling, problems
       in the juvenile system.

       Thereafter, the court explained that it gave significant credence to Morrissey’s mental
health evaluations:
                I’ve looked at this case from the standpoint of is there something in
       Patrick Morrissey’s life that would be causing him to do these things? In other
       words, are there mental problems? I’m aware that you have a history in that area.
       I’ve looked very carefully at the evaluations of Dr. Heidenreich that was done a
       couple of years ago and the Canyon View reports and so forth. Frankly, I was
       astounded to see in Dr. Heidenreich’s report the statement that the prosecutor
       quoted, that if you have further problems in life you need to go to a penal
       institution. I don’t know that I’ve ever seen that out of a psychiatrist. It tells me
       something about your character that I think really does influence my decision
       today.

       Finally, the court summarized the difficult nature of its decision, “I don’t understand, at
this juncture, what is driving Patrick Morrissey.” On the one hand, the court considered the
possibility that Morrissey was merely “a young man who has just not felt the impact, if you will,
of punishment and thinks that you can get away with anything.”              Alternatively, the court
considered the potential impact of the mental health reports. Those indicated that Morrissey had
an antisocial personality disorder and would be likely to ignore “anything anybody says,
including the parole board [and] this court.” If that were true, the court said, it was inclined to
impose a longer sentence to protect society. After explaining its sentencing rationale, the court
imposed unified sentences of fifteen years, with five years determinate.
       On appeal, Morrissey argues that the district court erred by failing to order a mental
health evaluation for purposes of sentencing and that his sentence is excessive.
                                                 II.
                                            ANALYSIS
A.     Failure to Order Mental Health Evaluation
       Morrissey bases his first claim of error upon Idaho Code § 19-2522(1), which provides
that “if there is reason to believe the mental condition of the defendant will be a significant factor




                                                  3
at sentencing and for good cause shown, the court shall appoint at least one (1) psychiatrist or
licensed psychologist to examine and report upon the mental condition of the defendant.”
       Morrissey’s claim of a violation of this statute has been waived because it was invited.
He not only did not request a mental health evaluation, his counsel specifically declined when
asked if any additional evaluations were desired. We have previously held that when the
sentencing court asks counsel if an evaluation is needed and counsel indicates it is not, any error
in failing to provide that evaluation is invited error. State v. Rollins, 152 Idaho 106, 114 n.4, 266
P.3d 1211, 1219 n.4 (Ct. App. 2011). “Invited errors are not reversible.” Thomson v. Olsen, 147
Idaho 99, 106, 205 P.3d 1235, 1242 (2009) (quoting State v. Caudill, 109 Idaho 222, 226, 706
P.2d 456, 460 (1985)).      That is true even if the claimed error would otherwise constitute
fundamental error. State v. Norton, 151 Idaho 176, 187, 254 P.3d 77, 88 (Ct. App. 2011).
Therefore, we will not further address the issue.
B.     Sentence
       Morrissey also claims that the trial court erred by imposing an excessively harsh
sentence. Sentencing is a matter for the trial court’s discretion. Both our standard of review and
the factors to be considered in evaluating the reasonableness of the sentence are well established
and need not be repeated here. See State v. Hernandez, 121 Idaho 114, 117-18, 822 P.2d 1011,
1014-15 (Ct. App. 1991); State v. Lopez, 106 Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct. App.
1984); State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (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). Applying these standards, and having reviewed the record
in this case, we cannot say that the district court abused its discretion.
                                                 III.
                                          CONCLUSION
       Morrissey’s claim that the trial court erred by failing to sua sponte order a mental health
evaluation fails; to the extent any error occurred, it was invited error. He also failed to show that
the trial court abused its discretion by imposing an excessively harsh sentence. Therefore, the
judgment of conviction and sentence are affirmed.
       Judge GRATTON and Judge MELANSON CONCUR.




                                                    4
