452 P.2d 54 (Idaho 1969), 10291, Clark v. State

Docket Nº:10291.
Citation:452 P.2d 54, 92 Idaho 827
Opinion Judge:DONALDSON,
Party Name:Dennis Guy CLARK, Applicant-Appellant, v. The STATE of Idaho, Defendant-Respondent.
Attorney:Gordon S. Nielson, Minidoka County Public Defender, Burley, for appellant. Allan G. Shepard, Atty. Gen., and Denison E. Smith, Asst. Atty. Gen., Boise, Larry R. Duff, Pros. Atty., and Donald J. Chisholm, Deputy Pros. Atty., Minidoka County, Rupert, for appellee.
Judge Panel:McFADDEN, C. J., McQUADE, and SPEAR, JJ. and NORRIS, D. J., concur.
Case Date:March 17, 1969
Court:Supreme Court of Idaho
 
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Page 54

452 P.2d 54 (Idaho 1969)

92 Idaho 827

Dennis Guy CLARK, Applicant-Appellant,

v.

The STATE of Idaho, Defendant-Respondent.

No. 10291.

Supreme Court of Idaho.

March 17, 1969

Page 55

Page 56

[92 Idaho 829] Gordon S. Nielson, Minidoka County Public Defender, Burley, for appellant.

Allan G. Shepard, Atty. Gen., and Denison E. Smith, Asst. Atty. Gen., Boise, Larry R. Duff, Pros. Atty., and Donald J. Chisholm, Deputy Pros. Atty., Minidoka County, Rupert, for appellee.

DONALDSON, Justice.

Applicant (appellant) Dennis Guy Clark brought this action for post-conviction relief from a judgment in which he was found, inter alia, to come within the status of persistent violator of the law. Appellant alleged by petition that in December, 1967, in Minidoka County, he had pleaded not guilty to a charge of escape 1 and of being a persistent violator of the law. 2 Subsequently Clark changed his plea to guilty of escape and admitted his status of being a persistent violator of the law. He was then sentenced by the court to a term of imprisonment 'not to exceed life.' He further alleged that he was represented by an attorney at the time of arraignment, at the time he admitted his prior convictions, and at the time of sentencing. No claims are made by appellant that counsel was incompetent, that there was insufficient time to prepare a defense, that the plea was in any manner involuntary, that he was unaware of the nature of the charges made against him, or that he failed to understand the consequence of the plea of guilty and admitting he was a persistent violator. The only ground for relief alleged by the application was that appellant should not have been found to be a persistent violator for the reason that one of the former convictions pleaded in the information was invalid. The former conviction in question, also for the crime of escape, was rendered in Cassia County in 1965. According to appellant he had been denied his right to a speedy trial in the Cassia County proceedings. Parenthetically we observe that the application was prepared by petitioner. Counsel thereafter was appointed, who could have amended the petition, had he and the applicant decided that the facts and the law necessitated such revision.

June 4, 1968, the prosecuting attorney moved to have the application dismissed. After a hearing, at which arguments on the motion were heard but no evidence introduced and at which Clark was represented by counsel, the court issued an order granting the motion to dismiss. The order, dated June 18, bore a handwritten notation that it would become final July 8. On July 8 a further order was entered making the June 18 order final.

[92 Idaho 830]

Page 57

The applicant now appeals to this court from the decision of the district court.

An application for post-conviction relief is a special proceeding, civil in nature. Idaho Const., art. 5, § 1; Uniform Post-Conviction Procedure Act, I.C. §§ 19-4901(b), 19-4907; Pulver v. State, 92 Idaho 627, 448 P.2d 241 (1968). The petitioner 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 materials, does not controvert the allegations in the petition. Tramel v. State, supra. It is not error to dismiss an application without affording an evidentiary hearing if the allegations, though uncontroverted, do not entitle applicant to relief. I.C. § 19-4906; Tramel v. State, supra; Walker v. State, 92 Idaho 517, 446 P.2d 886 (1968). In considering an application for post-conviction relief, the court looks to the substance and disregards defects of form. I.C. § 19-4906.

The issue on appeal, then, is whether the petition alleged facts which, if true, would entitle Clark to relief.

In Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), James Oyler and Paul Crabtree were serving life sentences imposed under a West Virginia habitual criminal statute. Each petitioned the Supreme Court of Appeals of West Virginia for a writ of habeas corpus, and each was denied relief. The Supreme Court of the United States granted certiorari.

Oyler was convicted of second degree murder on February 5, 1953. On February 11, the prosecuting attorney was granted leave to file an information alleging Oyler to be the same person who was thrice previously convicted of crimes which were punishable by confinement in a penitentiary. The same day Oyler, who was cautioned as to the effect of the information and who was accompanied by counsel, admitted in open court that he was the person so named by the information. On the basis of the acknowledgement, the court sentenced him to life imprisonment. Oyler attacked the life sentence on the ground of denial of due process, in that he had not received advance notice of the recidivist prosecution and thus was prevented from showing the inapplicability of the habitual criminal law. The ground which would have been presented, had there been adequate notice, was that Oyler, though convicted of crimes subjecting him to the possibility of sentence in a penitentiary, never had been so sentenced.

Crabtree pleaded guilty in 1957 to a forgery charge. A week later the prosecuting attorney informed the trial court that Crabtree had been convicted previously of two felonies, once in Washington State and once in West Virginia. Crabtree, who also was represented by counsel, admitted the prior convictions and was sentenced to life...

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