Tramel v. State
| Decision Date | 26 December 1968 |
| Docket Number | No. 10265,10265 |
| Citation | 92 Idaho 643,448 P.2d 649 |
| Parties | Elmer Jackson TRAMEL, Plaintiff-Appellant, v. STATE of Idaho, Defendant-Respondent. |
| Court | Idaho Supreme Court |
Norman H. Nielson, Burley, for plaintiff-appellant.
Allen G. Shepard, Atty. Gen., and Roger B. Wright, Deputy Atty. Gen., Boise, Herman E. Bedke, Pros. Atty., of Cassia County, Burley, for defendant-respondent.
This is an action under the Uniform Post-Conviction Procedure Act, I.C. § 19-4901 through § 19-4911, based primarily on the grounds that (1) appellant was not adequately and properly represented by counsel in one proceeding and (2) that his plea of guilty in another proceeding was involuntary because it was coerced.
The pertinent facts are that on March 9, 1967 appellant was convicted by a jury of the crime of grand larceny after a trial in which he was represented by court-appointed counsel. While awaiting the judgment of the court and pronouncement of a sentence appellant escaped from the Cassia County jail on March 12, 1967. He later was apprehended in the State of Pennsylvania and on May 9, 1967 was returned to face the charge of escaping after having been convicted of a felony, and for sentencing on his grand larceny conviction. The latter was accomplished on May 15, 1967. A different attorney was appointed by the court to defend appellant on the escape charge, and on May 16, 1967 appellant was transferred to the Idaho State Penitentiary to begin serving his sentence on the grand larceny conviction.
On or about July 12, 1967 appellant was returned from the penitentiary for a preliminary hearing on the escape charge, and he was bound over to the district court. An information was regularly filed against him on July 17, and on the same date appellant entered a plea of not guilty. On July 20, the date set for trial on the escape charge, appellant, in a surprise move, and in writing, changed his plea from 'not guilty' to one of 'guilty.' The guilty plea was accepted by the trial court and after appellant properly waived any delay, the court forthwith entered judgment and sentenced appellant to an additional confinement in the State Penitentiary of not to exceed five years, such sentence to start after the completion of the sentence previously pronounced on the conviction of grand larceny.
Appellant filed a motion for post-conviction relief on September 18, 1967, and after arguments thereon the court permitted appellant additional time to amend his motion. The amended application was filed on November 14, 1967. The State moved to dismiss the amended application 'on the grounds and for the reasons that the facts contained in the motion does not place the Movant under the purview of any remedy set out in chapter 25 of the 1967 Session Laws, nor any other provision of Idaho law.' Appellant opposed this motion through his court-appointed counsel, being a separate and different counsel from the ones who had represented appellant in the trial of the grand larceny charge and in the proceedings in the escape charge.
After hearing arguments of counsel, without an evidentiary hearing at which appellant was produced and permitted to participate, appellant's application was dismissed as being one without substance on February 20, 1968. It is from this order that this appeal has been taken.
The appellant makes two principal assignments of error, i. e., (1) That he was not adequately and properly represented by counsel after the conviction of the grand larceny charge because (a) his court-appointed attorney incompetently informed him that he had no right to appeal from a jury conviction, and (b) the same attorney advised appellant that the attorney was appointed by the court and that the case (the appeal) was not one in which he could make any money and by being an indigent without funds to hire counsel appellant was deprived of his right of appeal. In conjunction with this assignment of error appellant contends that the lower court erred in not vacating the judgment of conviction and sentence, imposing a new sentence and allowing appellant to regularly appeal from the new judgment and sentence; and (2) that the court erred in not holding a formal or evidentiary hearing and making findings of fact and conclusions of law in disposing of the application of appellant.
To dispose of these contentions, it is necessary to examine in detail the pertinent allegations in appellant's motion or application for relief. After having stated that he had not appealed from the grnad larceny conviction. The next question and appellant's answer on the form is:
'* * * state your reasons for not so appealing:
'(a) That I was represented by a Court appointed attorney; that I was informed by my Court appointed attorney that in his last case he had received the sum of $10,000.00 and that in the case where he represented me, that he was appointed by the Court and that the case was not one in which he could make any money.
'(b) That I was informed by my Court appointed attorney that I had no right of appeal from a jury conviction and that an appeal would not do me any good.
'(c) I was not informed that I had a right of appeal by my counsel and that the Court would have to appoint counsel for me in an appeal from my conviction.
'(d) I know that if I had the funds that I could have appealed my conviction on the basis of grand larceny, but because of the fact that I was an indigent and without funds, I did not have an opportunity to appeal and have my conviction reviewed by the appellate Court.'
The next question and the pertinent portions of the answer thereto are as follows:
'State concisely all the grounds on which you base your allegation that you are being held in custody unlawfully:
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State v. Pratt
...which he or she contends entitle him or her to relief under the Act by a preponderance of the evidence." Tramel v. State, 92 Idaho 643, 646, 448 P.2d 649, 652 (1968); I.C.R. 57(c). This Court will not set aside a district court's finding of fact unless it is clearly erroneous, Sanders v. St......
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Coleman v. State, 81-115
...if the allegations are without merit or would otherwise not entitle the petitioner to relief. Clark v. State, supra; Tramel v. State (1968), 92 Idaho 643, 448 P.2d 649; Donnelly v. State (Alaska 1973), 516 P.2d 396 (allegations in post-conviction petition were too vague and illusory to warr......
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Clark v. State
...has the burden of proving by a preponderance of the evidence the allegations which he contends entitle him to relief. Tramel v. State, 92 Idaho 643, 448 P.2d 649 (1968). Until the allegations are controverted, they are deemed true; a motion to dismiss unsupported by affidavits or other mate......
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Smith v. State
...state, they must be deemed to be true, no matter how incredible they may appear to the trial court or to this Court. Tramel v. State, 92 Idaho 643, 448 P.2d 649 (1968). A motion to dismiss, unsupported by affidavits or depositions, does not controvert the facts alleged in the petition. Ibid......