A Bingham County man currently serving 10 to 30 years in prison for lewd conduct with a minor had that sentence vacated this week by the Idaho Court of Appeals, which also ordered he be remanded back to Bingham County for a new sentencing.

    Manuel Garcia Velasco was charged with lewd conduct with a child under 16 in May of 2007, eventually pleading guilty in early 2008 to the charge by entering an Alford plea, one in which the defendant does not admit guilt, but does agree that there is sufficient evidence that a jury would likely find him guilty.

    But before that plea was ever entered, Velasco was ordered in the fall of 2007 to undergo a competency evaluation. That evaluation found he was competent to stand trial, but also suggested that Velasco exaggerated his neurocognitive difficulties. The report said the exaggeration suggested a “malingered cognitive dysfunction.”

    In entering his Alford plea, Velasco also said he couldn’t remember having committed the crime.

    After the defendant entered the plea, a psychosexual evaluation was ordered, during which Velasco underwent a polygraph examination. According to the evaluation, that polygraph show Velasco was being deceptive in many of his answers.

    After being confronted about the deception, Velasco admitted he remembered the crime and that he sexually abused the victim.

    Both prosecuting and defense attorneys, at sentencing, recommended probation for Velasco.

    But after Seventh District Judge Darren B. Simpson sentenced Velasco to 10 years fixed and 20 years indeterminate in prison, he sent the defendant to serve his time rather than placing him on probation. During that sentencing, Simpson mentioned the competency evaluation and the competency evaluation’s summary, which was included in the presentencing investigation report.

    The sentence was appealed initially, but after a failure to file an appellate brief, that appeal was dismissed. The district court granted Velasco post-conviction relief, re-entered the judgment of conviction, allowing Velasco to appeal again.

    In that appeal, Velasco claimed a violation of his Fifth Amendment right against self-incrimination by Simpson’s consideration of information in his competency evaluation report during sentencing.

    The Idaho Court of Appeals said Simpson’s reliance on the competency evaluation and that section of the presentence investigation report that summarized the competency evaluation did compromise Velasco’s Fifth Amendment right against self-incrimination.

    The court ordered Velasco’s sentence be vacated and he be remanded back to Bingham County for a new sentencing hearing.

    That decision was released on Tuesday and as of Wednesday, the Idaho Department of Correction still shows Velasco as an inmate at the Idaho Correctional Center in Boise.