73 P.3d 108 (Idaho App. 2003), 28493, Peterson v. State

Docket Nº:28493.
Citation:73 P.3d 108, 139 Idaho 95
Party Name:Marcus PETERSON, Petitioner-Appellant, v. STATE of Idaho, Respondent.
Attorney:Molly J. Huskey, State Appellate Public Defender; Paul S. Sonenberg, Deputy Appellate Public Defender, Boise, for appellant., Hon. Lawrence G. Wasden, Attorney General; Kimberly J. Blas, Deputy Attorney General, Boise, for respondent.
Case Date:March 05, 2003
Court:Court of Appeals of Idaho
 
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Page 108

73 P.3d 108 (Idaho App. 2003)

139 Idaho 95

Marcus PETERSON, Petitioner-Appellant,

v.

STATE of Idaho, Respondent.

No. 28493.

Court of Appeals of Idaho.

March 5, 2003.

Review Denied July 28, 2003.

Molly J. Huskey, State Appellate Public Defender; Paul S. Sonenberg, Deputy Appellate Public Defender, Boise, for appellant.

Page 109

[139 Idaho 96] Hon. Lawrence G. Wasden, Attorney General; Kimberly J. Blas, Deputy Attorney General, Boise, for respondent.

PERRY, Judge

Marcus Ivan Peterson appeals from an order of the district court partially granting his application for post-conviction relief. We affirm.

I.

FACTS AND PROCEDURE

In 1997, Peterson was charged in Ada County with aggravated assault, misdemeanor battery, and misdemeanor resisting and obstructing an officer. Peterson failed to appear for a scheduled preliminary hearing and an arrest warrant was issued. In 1998, Peterson was arrested on the outstanding warrant but again failed to appear for a scheduled preliminary hearing. Peterson was subsequently taken into custody in Washington on unrelated charges. On August 6, 1999, Peterson delivered a request for final disposition of the pending Ada County charges to officials at the correctional facility in Washington pursuant to the Interstate Agreement on Detainers (IAD). The Washington officials mailed Peterson's request to the Ada County court clerk but failed to mail a copy to the Ada County prosecutor.

Peterson was arraigned in Idaho on the pending Ada County charges on January 12, 2000. The court appointed an attorney to represent Peterson. Thereafter, the state filed an amended complaint charging Peterson with aggravated battery rather than aggravated assault. A preliminary hearing was held, and an order of commitment was entered on January 26. On January 31, an information was filed charging Peterson with aggravated assault, misdemeanor battery, and misdemeanor resisting and obstructing an officer. On the same day, Peterson filed a motion to dismiss, contending that his right to a speedy trial under the IAD had been violated. Peterson's motion was ultimately denied. After Peterson's arraignment in district court on February 9, the state amended the information again in order to bring it into compliance with the magistrate's order of commitment and charged Peterson with aggravated battery. Peterson objected to the amendment of the information, which was overruled. Pursuant to a plea agreement, Peterson pled guilty on February 14 to aggravated battery, I.C. §§ 18-903, -907, and the remaining charges were dismissed. Peterson retained a different attorney and was thereafter sentenced to a unified term of fifteen years, with a three-year minimum period of confinement.

Peterson, represented by yet another attorney, filed an application for post-conviction relief. Peterson asserted that his trial counsel was ineffective for failing to investigate Peterson's claim that he was innocent of the aggravated battery charge and for failing to adequately preserve the issue of the state's alleged violation of the IAD for appellate review. Additionally, Peterson contended that his sentencing attorney rendered ineffective assistance by not preserving for appellate review the IAD issue because counsel failed to move to withdraw Peterson's guilty plea. Peterson further claimed that sentencing counsel was ineffective for failing to file a direct appeal from Peterson's judgment of conviction and sentence despite Peterson's request to do so. After an evidentiary hearing, the district court partially granted Peterson's application. The district court found that sentencing counsel was ineffective for failing to consult with Peterson concerning filing a direct appeal. The district court reissued Peterson's judgment of conviction in order to allow Peterson to file an appeal but dismissed the remainder of Peterson's claims.

Peterson now appeals from the district court's post-conviction decision. Peterson again asserts that his sentencing counsel was ineffective for failing to seek...

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