794 P.2d 654 (Idaho App. 1990), 17557, Russell v. State

Docket Nº:17557.
Citation:794 P.2d 654, 118 Idaho 65
Opinion Judge:WALTERS,
Party Name:Harold W. RUSSELL, Petitioner-Appellant, v. STATE of Idaho, Respondent.
Attorney:Fitzgerald & Sims, William J. Fitzgerald, Lewiston, for petitioner-appellant. Jim Jones, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., Boise, for respondent.
Judge Panel:BURNETT and SWANSTROM, JJ., concur.
Case Date:July 03, 1990
Court:Court of Appeals of Idaho

Page 654

794 P.2d 654 (Idaho App. 1990)

118 Idaho 65

Harold W. RUSSELL, Petitioner-Appellant,


STATE of Idaho, Respondent.

No. 17557.

Court of Appeals of Idaho.

July 3, 1990

Page 655

[118 Idaho 66] Fitzgerald & Sims, William J. Fitzgerald, Lewiston, for petitioner-appellant.

Jim Jones, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., Boise, for respondent.

WALTERS, Chief Judge.

This is a review of an order denying an application for relief under the Post-Conviction Procedure Act, I.C. § 19-4901 to -4911. In his application, Harold Russell alleged that he was denied effective assistance of counsel, causing him to enter an involuntary plea of guilty and to receive an excessive sentence for the crimes of first degree burglary and grand theft. Russell also submitted that the district judge failed to inform him of his Sixth Amendment rights before he entered his plea. After conducting an evidentiary hearing, the district judge concluded that Russell was not entitled to relief and denied the application. On appeal, Russell raises the same arguments and further avers that his former attorney failed to file a timely direct appeal of his judgment of conviction. 1 For the reasons explained below, we affirm the denial of Russell's post-conviction relief application.

The essential facts of this case are as follows. At approximately 4:00 a.m. on the morning of March 11, 1984, Deputy Thomas Myers of the Lewis County Sheriff's Office heard a burglar alarm sound at a cafe in Kamiah, Idaho. In the dim light,

Page 656

[118 Idaho 67] Myers observed a man walking away from the cafe. Upon Myers' order to stop, the suspect began to run away. Myers--alone at the time--pursued the suspect and eventually apprehended him in a field close to the cafe. While Myers was handcuffing the suspect, his police handgun discharged. The bullet struck the suspect in his ribs on the left side. The suspect, later identified as Russell, was hospitalized and subsequently charged with two counts of first degree burglary based upon evidence found at the crime scene.

The Lewis County public defender was appointed to represent Russell. Russell initially pled not guilty to both burglary charges. However, pursuant to a plea agreement, Russell pled guilty to one count of first degree burglary and one charge of grand theft. In exchange, the prosecutor agreed not to file a persistent violator charge against Russell. The district judge sentenced Russell to a ten-year fixed term for the first degree burglary conviction, and to a concurrent and identical term for grand theft. Russell did not file a direct appeal from his judgment of conviction, but he did file a motion to reduce his sentences under I.C.R. 35. This motion was denied by the district court and affirmed by this Court on appeal. State v. Russell, 109 Idaho 723, 710 P.2d 633 (Ct.App.1985).

Russell subsequently filed this application for post-conviction relief. An evidentiary hearing was held by the district court and the application was denied in its entirety. This appeal followed.



Our review of Russell's application is governed by the following standards. An application for post-conviction relief is resolved through a special proceeding, civil in nature. State v. Bearshield, 104 Idaho 676, 662 P.2d 548 (1983). To prevail, the petitioner must prove--by a preponderance of evidence--the allegations on which the application for relief is based. I.C.R. 57(c); Pierce v. State, 109 Idaho 1018, 712 P.2d 719 (Ct.App.1985). On appeal, we will not disturb the judge's findings of fact unless clearly erroneous. I.R.C.P. 52(a); Reeves v. State, 105 Idaho 844, 673 P.2d 444 (Ct.App.1983). Furthermore, to prevail on a claim of ineffective assistance of counsel, the applicant must show that his attorney's performance was deficient, and that he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Aragon v. State, 114 Idaho 758, 760 P.2d 1174 (1988); Young v. State, 115 Idaho 52, 764 P.2d 129...

To continue reading