CRONE, J.
On October 7, 2009, the trial court held the sentencing hearing. The State argued that “[b]ased upon” the evaluations of Dr. Mueller and Dr. Krause and “the definition of a sexually violent predator,” the trial court should find Baugh “to be a sexually violent predator and require him to register for life in the sex registry.” . . . Baugh’s counsel asserted that with respect “to the determination of the sexual violent predator, I think that the Court has to make that determination based upon the charge that he’s been convicted [sic] and the doctors’ reports, and I would leave that up to the Court.” . . .The trial court “reviewed the reports of Dr. Mueller and Dr. Krause” and found that Baugh was a sexually violent predator “within the meaning of the statute.” . . . The trial court sentenced Baugh to serve twelve years executed on each count, with the sentences “served consecutively.” . . . .
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Baugh argues that the trial court failed to comply with the statutory requirements for making a sexually violent predator determination. Specifically, he notes that “[n]o live testimony was presented at the sentencing hearing regarding the doctors’ evaluations”; that no other “hearing on the matter was conducted”; and that there is no evidence “that the two persons who submitted reports had any expertise in criminal behavioral disorders.” . . . Accordingly, he argues, the determination that he is a sexually violent predator must be vacated. The State responds that Baugh “has waived this claim on appeal” because “he did not object to this determination at sentencing[.]” . . . .
We agree with the State. . . . Because Baugh failed to present his argument to the trial court, we conclude that he has procedurally defaulted and thus waived it for purposes of this appeal. [Footnote omitted.]
BAKER, C.J., concurs.
DARDEN, J., dissents with separate opinion:
. . . [T]he entirety of Baugh’s representation regarding the sexual predator determination is the single statement by Baugh’s counsel that he “th[ought] that the Court ha[d] to make that determination based upon the charge that he’s been convicted [sic] and the doctors’ reports, and [he] would leave that up to the Court.” . . . Accordingly, I find the matter to be one of fundamental error. How could a constitutionally competent attorney allow his client to suffer the consequences that befell Baugh without advising him of the statutorily required hearing, at which he could subject the experts’ conclusions to the crucible of cross-examination?
Therefore, I would hold that the trial court’s sentencing determination that Baugh is a sexually violent predator cannot stand, and I would order a remand to the trial court to either conduct a hearing at which the examining experts testify [footnote omitted] or inform Baugh of the statutory requirement for such a hearing and elicit from him an express waiver of the experts’ testifying at such a hearing.