828 P.2d 1323 (Idaho App. 1992), 19371, Murray v. State

Docket Nº:19371.
Citation:828 P.2d 1323, 121 Idaho 918
Opinion Judge:WALTERS,
Party Name:Leon R. MURRAY, Petitioner-Appellant, v. STATE of Idaho, Respondent.
Attorney:Leon R. Murray, appearing pro se. Larry EchoHawk, Atty. Gen. and Joel D. Horton, Deputy Atty. Gen., Boise, for respondent.
Judge Panel:SWANSTROM and SILAK, JJ., concur.
Case Date:March 31, 1992
Court:Court of Appeals of Idaho

Page 1323

828 P.2d 1323 (Idaho App. 1992)

121 Idaho 918

Leon R. MURRAY, Petitioner-Appellant,


STATE of Idaho, Respondent.

No. 19371.

Court of Appeals of Idaho.

March 31, 1992

Page 1324

[121 Idaho 919] Leon R. Murray, appearing pro se.

Larry EchoHawk, Atty. Gen. and Joel D. Horton, Deputy Atty. Gen., Boise, for respondent.

WALTERS, Chief Judge.

This is an appeal from an order denying relief in a post-conviction proceeding brought under I.C. § 19-4901. The petitioner, Leon Murray, challenged the two, ten-year indeterminate and concurrent sentences he had received for aggravated assault on police officers, claiming coercion in accepting a plea bargain and asserting that he had been denied effective assistance of counsel because his court-appointed attorney had failed to request concurrent sentences of five years determinate. He also alleged that he was denied effective assistance of counsel with regard to a motion under I.C.R. 35 to reduce his sentences. After an evidentiary hearing, the district court ruled that Murray had failed to establish he was entitled to any relief. We affirm.



In October, 1986, Murray was charged with several offenses in Twin Falls County after a high speed chase while Murray was driving a vehicle he had stolen in Nevada. Murray was apprehended when his vehicle collided with a police vehicle at a roadblock. A public defender was appointed to represent Murray. Later, pursuant to a plea bargain, Murray pled guilty to two counts of aggravated assault on a peace officer and other misdemeanor and felony charges were dismissed. He was sentenced in December, 1986, on the assault charges to two concurrent, indeterminate terms of ten years in the custody of the Board of Correction. Murray did not appeal from the judgment of conviction or his sentences.

Eighteen months after he commenced serving his sentences, Murray filed a motion, pro se, under I.C.R. 35 to reconsider his sentences. The motion was denied as

Page 1325

[121 Idaho 920] untimely. 1 Murray did not appeal from the order denying this motion.

In June, 1990, again acting pro se, Murray filed an application under I.C. § 19-4901 for post-conviction relief, claiming that the length of his sentences was unreasonable, that he had been coerced into pleading guilty under threat of being charged as a persistent violator and that the public defender had failed to request determinate sentences of five years as desired by Murray, but instead had argued for sentences of five years indeterminate. This petition also represented that Murray had discussed the filing of a Rule 35 motion with the public defender; that he was told that law clerks at the penitentiary could help Murray in that regard; that this advice proved untrue and that Murray ultimately filed his own motion, pro se, but it was denied as untimely. For relief, he asked the court to reduce his sentences to five-year determinate periods. He did not request any relief with regard to his assertion that counsel failed to assist him with a motion under I.C.R. 35.

This application was assigned case number SP-90-00371. At Murray's request, new counsel was appointed to represent Murray in the proceeding. The state answered, denied the allegations in the petition and moved for summary dismissal, arguing that there was no basis for relief on Murray's application. After hearing arguments from the county prosecutor and from Murray's counsel, the court granted the state's motion and entered an order on August 7, 1990, denying relief. However, according to the court's minutes of the hearing, the court also ordered Murray's counsel "to remain as counsel of record pending further post-conviction relief motions." No appeal was taken from the August 7 order.

Later, on November 28, 1990, Murray's counsel filed another application for post-conviction relief, entitled "Second Petition for Post-conviction Relief." This application was not assigned a new case number by the district court, but was filed as part of the previous proceeding under case number SP-90-00371. In addition to incorporating by reference "all of the documents presently on file with the court in case No. SP-90-00371," the pleading specifically alleged ineffective assistance of counsel through the public defender's failure, after sentencing, to file a Rule 35 motion on Murray's behalf within the time limits prescribed by the Rule. For relief, the application requested that Murray's right to file a Rule 35 motion be reinstated.

Again the state answered by denial of the allegations and moved for summary dismissal. The court denied the state's motion to dismiss and proceeded to a hearing on the merits of the application. During the hearing, Murray and the public defender testified. At the conclusion of the hearing, the court ruled from the bench, denying Murray's application for relief.

The court's ruling was comprised of two parts. First, the judge stated:

The court is going to find there was actually no contention that the plea hearing was at all coerced or out of line ... [I]t was obvious from [the public defender's] argument that he made for a 5-year indeterminate sentence that Judge Hurlbutt knew that the defendant was not personally in favor of an indeterminate 10-year sentence.

So whether or not he had agreed previously to that, the judge was made aware at sentencing even if Mr. Murray personally didn't make a statement, the judge was made aware at sentencing that Mr. Murray wished to have a lesser sentence. The judge certainly had within his authority to give a determinate 5-year sentence and [it] was obvious that the judge determined that a time for parole or time where the defendant might be on parole would be desirable if in fact the defendant served 5 years or less.

Next, with regard to the Rule 35 question, the court acknowledged Murray's testimony that the public defender had told

Page 1326

[121 Idaho 921] Murray that "clerks" at the law library in the penitentiary would aid Murray in filing a Rule 35 motion. The court then found that Murray became aware that the individuals at the penitentiary library would not help him, within two months after he began serving his sentence and well within the time when he could have filed his own motion. The court observed that it was then incumbent upon Murray "to write to the court requesting further action be done or write to his attorney requesting that further action be done. Nothing was done at that time." The judge explained:

[T]he court is going to rule that the defendant was on notice two months into the sentence[s], less than the 120 days, far less, that there was a problem with having the law clerk doing it and he had no right to sit around and hope that somebody would do something for him without him taking further action [and] without making his position known.

Mr. Murray has shown in this proceeding he is quite articulate, that when he has a definite idea he expresses it. A letter to the court or his attorney would have been able to solve this problem. Therefore, the petition for post-conviction relief will be denied.

Accordingly, the court entered an order denying Murray's second petition for post-conviction relief. Murray timely appealed from this order.



Murray raises several issues, which may be summarized as follows. First, he contends that the court erred by not entering specific findings of fact and conclusions of law relating to each of the issues presented by his original application for post-conviction relief as required by I.C. § 19-4907(a). 2 Next, he questions whether the court's oral ruling in denying his supplemental petition sufficed as the findings and conclusions required by the statute. Finally, he challenges the court's determination that Murray was not deprived of effective assistance of counsel when the public defender failed to follow up on Murray's expressed desire to seek a modification of his sentences.



Preliminarily, we note our standards of review. An application for post-conviction relief is a special proceeding, civil in nature. State v. Bearshield, 104 Idaho 676, 662 P.2d 548 (1983). In order to prevail in such an action, the applicant must prove his allegations by a preponderance of the evidence. Stuart v. State, 118 Idaho 865, 801 P.2d 1216 (1990). When reviewing a decision denying a petition for post-conviction relief after an evidentiary hearing, an appellate court will not disturb the lower court's factual findings unless they are clearly erroneous. I.R.C.P. 52(a); Russell v. State, 118 Idaho 65, 794 P.2d 654 (Ct.App.1990). The role of the reviewing court is to determine whether there was substantial evidence to support the trial court's findings. Holmes v. State, 104 Idaho 312, 658 P.2d 983 (Ct.App.1983). A claim of ineffective assistance of counsel presents mixed questions of law and fact. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). On appeal, when faced with mixed questions of fact and law, we will defer to the factual findings made by lower courts if those determinations are based upon substantial

Page 1327

[121 Idaho 922] evidence, but we will exercise free review of the application of the relevant law to those facts. Young v. State, 115 Idaho 52, 764 P.2d 129 (Ct.App.1988). In order to prevail on a claim of ineffective assistance of counsel, the claimant must establish that his counsel was deficient in his performance and that this deficiency resulted in prejudice to the claimant. State v. Bingham, 116 Idaho 415, 776 P.2d 424 (1989). There is a strong presumption that counsel's performance falls within the wide range of professional assistance, and the defendant bears the burden of proving that counsel's representation fell below an objective...

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