King v. State, 16919

Citation114 Idaho 442,757 P.2d 705
Decision Date20 June 1988
Docket NumberNo. 16919,16919
PartiesBarry D. KING, Petitioner-Appellant, v. STATE of Idaho, Respondent.
CourtCourt of Appeals of Idaho

Roger J. Hoopes, Rexburg, for petitioner-appellant.

Jim Jones, Atty. Gen., David R. Minert, Deputy Atty. Gen., Boise, for respondent.

WALTERS, Chief Judge.

This is an appeal from an order dismissing an application for post-conviction relief. The appellant, Barry King, pled guilty to a charge of burglary. He was granted probation upon a suspended sentence of ten years. Subsequently, he pled guilty to a charge of rape that was alleged to have occurred while he was under probation on the burglary conviction. He was sentenced to ten years for the rape. Based upon the intervening conviction for rape, King's probation on the burglary charge was revoked and the court ordered the burglary sentence to be served consecutive to the sentence for the rape offense. King filed an application for post-conviction relief, asking "in the interest of justice" that the court order the two sentences to be served concurrently. That application was denied when the court concluded the remedy sought by King was not within the grounds for relief set forth in I.C. § 19-4901. 1 Thereafter King filed another application for post-conviction relief, alleging several reasons that arguably would suffice under § 19-4901 to provide a remedy for him. That application was denied on the ground that "Petitioner had every opportunity to raise all grounds of relief in his original Application; [and that] there is no new evidence or new information coming to light and petitioner does not give sufficient reason why he did not raise the grounds raised in his latter Application the first time." The court concluded that King had "waived" his right to bring the second application. King then brought this appeal from the order dismissing his second application. We affirm but remand this case for modification of the sentence imposed for the burglary offense.

In greater detail, the facts show that King pled guilty in September, 1980, to burglary in the first degree. The district court imposed an indeterminate sentence of ten years but suspended execution of the sentence and placed King on probation for five years. A few months later, in 1981, King was charged with committing a rape. He pled guilty to that charge and, on September 14, 1981, the district court sentenced King to an indeterminate ten years in the custody of the Board of Correction. Based upon the rape conviction, King also was charged with violation of his probation on the suspended burglary sentence. He admitted the violation. On September 30, 1981, the district court ordered execution of the burglary sentence but also ordered that it run consecutive to the rape sentence.

On April 25, 1984, King filed an application for post-conviction relief under the provisions of I.C. § 19-4901. On December 5, 1984, the district court denied the application. In its order the district court noted that King based his application upon claims that did not fall within the provisions of § 19-4901. 2 The district court noted that King's application was "nothing more than a motion to reduce the sentence imposed by making it run concurrently rather than consecutively." This conclusion was supported by citation to I.C.R. Rule 35. 3 The district court observed that since King made no complaint of illegal sentence or illegal imposition of sentence, the district court was without jurisdiction to reduce the sentence under Rule 35. King did not appeal from that decision.

In 1986, King filed a second application for post-conviction relief. In that application King sought vacation of the rape conviction and a trial on the charge or, in the alternative, for an order directing that the rape sentence run concurrently with the burglary sentence. King alleged generally that he did not knowingly or willingly plead guilty; he was denied effective assistance of counsel; there were new facts available to support his claim for relief; the special prosecutor appointed was "related" to his former counsel; and the prosecution used threats of filing another charge to induce King to plead guilty. In January, 1987, the district court, citing denial of King's prior application and lack of new evidence, dismissed King's application for post-conviction relief. King then brought this appeal. He asserts the district court erred by dismissing the application on the basis that King should have raised all grounds for relief in his earlier, initial application.

In beginning our analysis, we note that I.C. § 19-4908 raises two threshold inquiries: did King set forth all grounds for relief available to him under I.C. § 19-4901 in his original application? And, did King's first application seek relief only from one or from both convictions? As mentioned in footnote 2, infra, King's sole contention was that the sentences received for the rape and burglary should have run concurrently rather than consecutively. The dismissal of King's first application was based upon King's failure to state claims that fell within the provision of the post-conviction procedure act. Idaho Code § 19-4908 precludes subsequent applications unless "the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original ... application." (Emphasis added). As the district court correctly noted, King's initial application did not contain a request for relief which could be granted under the post-conviction procedure act. In that respect, the dismissal was proper. We also note from the record that King's application repeatedly referred to both crimes and sentences, therefore both the burglary and the rape convictions were before the court for review on the first application.

We turn next to the question of whether King's second application fulfilled the requirement of I.C. § 19-4908 with respect to a "sufficient reason" provided for failure to raise in the earlier application the grounds alleged in the subsequent application. In its notice of intent to summarily dismiss the second application (I.C. § 19-4906(b)), the district court recited the allegations submitted by King in the second application as follows:

(a) That Petitioner did not knowingly or willingly plead guilty.

(b) That Petitioner was denied effective assistance of counsel.

(c) That there are new facts that would support relief.

(d) That a special prosecutor was appointed who was related to the Petitioner's former counsel.

The district court noted that "for each of the foregoing allegations, the Petitioner failed to set forth sufficient facts to give any support to the allegations. The bare allegations are not sufficient." The district court made note of a fifth assertion:

The Defendant also alleges that the Prosecutor used threats of filing additional charges to induce a plea. However, as the State points out, the Prosecutor is at liberty to use the threat of filing additional charges as a bargaining tool in plea negotiations. There is nothing to show that this was used in any other way than as a legitimate bargaining tool.

The district court concluded by stating:

Based upon the foregoing facts, the Court informs the Petitioner, under authority of Idaho Code 19-4906(b), that the petition of Barry King will be dismissed. The Petitioner shall have 20 days to reply to this notice of intent to dismiss.

King then filed a "Traverse to Responding Motion to Dismiss." On January 20, 1987, the district court ordered the second application dismissed, finding that King had "every opportunity to raise all grounds of relief in his original application;" and "there is no new evidence coming to light and petitioner does not give sufficient reason why he did not raise the grounds raised in this latter application the first time." (Emphasis added.)

The standard for dismissal under I.C. § 19-4906(b) states: "Disposition on the pleadings and record is not proper if there exists a material issue of fact." King correctly asserts that allegations in an application for post-conviction relief must be deemed to be true until those allegations are in some manner controverted by the state. Baruth v. Gardner, 110 Idaho 156, 715 P.2d 369 (Ct.App.1986), citing Tramel v. State, 92 Idaho 643, 448 P.2d 649 (1968). However, in Baruth, we further held that It is also the rule that a conclusory allegation, unsubstantiated by any fact, is insufficient to entitle a petitioner to an evidentiary hearing. Smith v. State, 94 Idaho 469, 491 P.2d 733 (1971); Drapeau v. State, 103 Idaho 612, 651 P.2d 546 (Ct.App.1982). Idaho Code § 19-4903 states that "[a]ffidavits, records, or other evidence supporting its allegations shall be attached to the application or the application shall recite why they are not attached."

110 Idaho at 159, 715 P.2d at 372.

There were no affidavits, records or other evidence offered either with King's second application or with his "Traverse", other than an affidavit by King outlining the factual circumstances of the commission of the rape and expressing dissatisfaction because of lesser penalties meted out to co-defendants on the rape charge. The conclusory allegations offered by King were not substantiated as required by the statute. As to this ground for dismissal, the district court was correct. Moreover, insofar as the application was dismissed for failure to provide sufficient reason to show why the grounds alleged in that application were not raised in the first application, we uphold the district court's determination. However, this conclusion does not end our inquiry.

In reviewing the record we are mindful of the earlier observation by the district court that King's first application was essentially a motion for correction or reduction of sentence. See I.C.R. 35. The district court avoided a Rule 35 analysis by noting King had failed to assert his sentence was illegal or improperly...

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  • Lint v. State
    • United States
    • Court of Appeals of Idaho
    • March 6, 2008
    ...a petitioner to an evidentiary hearing. Nielson v. State, 121 Idaho 779, 780, 828 P.2d 342, 343 (Ct.App.1992); King v. State, 114 Idaho 442, 446, 757 P.2d 705, 709 (Ct.App. 1988). Lint did not aver how the evidence was affected when the state allegedly broke the chain of custody or what wou......
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