Mata v. State, 20348

• Decision Date: 22 October 1993
• Docket Number: No. 20348,20348
• Citation: 861 P.2d 1253,124 Idaho 588
• Parties: Ray L. MATA, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

Page 1253

861 P.2d 1253

124 Idaho 588

Ray L. MATA, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 20348.

Court of Appeals of Idaho.

Oct. 22, 1993.

Whittier, McDougall, Souza, Murray & Clark, Chartered, Monte R. Whittier, Pocatello, for appellant.

Larry EchoHawk, Atty. Gen., Thomas P. Watkins, Deputy Atty. Gen., Boise, for respondent.

LANSING, Judge.

Ray L. Mata appeals the order of the district court summarily dismissing his application for post-conviction relief. Mata contends that the district court erred in dismissing his application without an evidentiary hearing on the issues of ineffective assistance of counsel, breach of the plea agreement and involuntariness of his guilty plea. Because we conclude that an evidentiary hearing must be afforded with respect to one of the issues raised, we affirm in part, vacate in part and remand for further proceedings consistent with this opinion.

I. BACKGROUND

Mata and his wife, Tonia Roach-Mata, were arrested and charged with the crime of grand theft, I.C. § 18-2403, I.C. § 18-2407(1)(b). Mata pled guilty at his arraignment pursuant to a negotiated plea agreement. In return for Mata's guilty plea, the prosecutor agreed to dismiss the charges against Mata's wife and to recommend that Mata be ordered to pay restitution and be placed on probation, rather than incarcerated. The prosecutor's agreement to that sentencing recommendation was based upon Mata's representation that he had no prior felony record, and it was expressly contingent upon subsequent confirmation of Mata's representation through a records check.

Mata was released on his own recognizance, ordered to cooperate with the presentence investigator and ordered to reappear for sentencing. Mata subsequently fled the state, but was later arrested in South Dakota and returned to Idaho. A presentence investigation revealed that Mata had a record of at least fourteen previous criminal charges in various states, some of which were felonies. At sentencing, the prosecutor recommended four to five years' incarceration. Mata was sentenced to a unified nine-year sentence, with a minimum period of confinement of three years.

At the time of sentencing, but prior to sentence being pronounced, Mata requested that he be allowed to change his plea from guilty to not guilty on grounds that he was "under a lot of pressure" at the time he entered his guilty plea. The district court treated this request as a motion to withdraw a guilty plea pursuant to I.C.R. 33(c) and denied the motion. Subsequently, Mata filed a motion under I.C.R. 35 to reduce his sentence, which was also denied.

Mata filed a verified application for post-conviction relief pursuant to I.C. § 19-4901, alleging that he received ineffective assistance of counsel during the sentencing phase and through his counsel's failure to file a direct appeal of the conviction. Mata further alleged that his guilty plea was invalid because the prosecutor breached the plea agreement by recommending confinement, and that his guilty plea was involuntary because of extreme pressures that induced him to plead guilty.

The state filed its answer to Mata's application, denying that Mata was entitled to relief. Pursuant to I.C. § 19-4906, the district court dismissed the application without an evidentiary hearing. It is from this order that Mata has filed the current appeal.

II. STANDARD OF REVIEW

An application for post-conviction relief initiates a proceeding that is civil in nature. State v. Bearshield, 104 Idaho 676, 662 P.2d 548 (1983). Like a civil plaintiff, the applicant must prove by a preponderance of the evidence all of the factual allegations upon which the request for relief is based. Russell v. State, 118 Idaho 65, 794 P.2d 654 (Ct.App.1990). A summary dismissal of an application pursuant to I.C. § 19-4906 is functionally equivalent to a summary judgment under I.R.C.P. 56. Nellsch v. State, 122 Idaho 426, 430, 835 P.2d 661, 665 (Ct.App.1992); Ramirez v. State, 113 Idaho 87, 89, 741 P.2d 374, 376 (Ct.App.1987). Where it appears from the pleadings and any affidavits or other evidence submitted by the parties that no genuine issue of material fact exists, and the applicant has not made a prima facie showing of entitlement to relief, the trial court may summarily dismiss the application. However, where genuine and material factual issues are raised, an evidentiary hearing must be conducted as provided in I.C. § 19-4906. Nellsch v. State, supra. The facts and inferences to be drawn from the evidence are construed liberally in favor of the applicant. On appeal, we review the entire record to determine whether genuine issues of material fact exist which, if resolved in the applicant's favor, would require that relief be granted. We freely review the district court's application of law. Nellsch, 122 Idaho at 434, 835 P.2d at 669.

III. INADEQUATE REPRESENTATION

Both the Sixth Amendment to the United States Constitution and Art. I, § 13 of the Idaho Constitution provide criminal defendants with a right to counsel. This entitlement includes the right to representation by reasonably competent counsel in an adequate fashion. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). To establish that counsel's representation has been ineffective, the applicant must show that the attorney's performance fell below a standard of "competence demanded of attorneys in criminal cases" and that the defendant was prejudiced as a result. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Demonstration of prejudice requires a showing of "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id.

Mata claims that he lacked effective assistance of counsel in that his former attorney failed to advise him of his right to speak on his own behalf at sentencing, failed to give him a copy of his presentence investigation report and failed to file an appeal of the judgment of conviction and sentence. We will address each of these allegations in turn.

A. Failure to advise defendant of his right to speak on his own behalf.

A criminal defendant has the absolute right to speak on his or her own behalf at sentencing. I.C.R. 33(a)(1); State v. Goodrich, 97 Idaho 472, 480, 546 P.2d 1180, 1188 (1976); State v. Kingston, 121 Idaho 879, 883, 828 P.2d 908, 912 (Ct.App.1992); State v. Goldman, 107 Idaho 209, 211, 687 P.2d 599, 601 (Ct.App.1984). The failure of an attorney to advise a client of this right of allocution, however, does not automatically constitute ineffective assistance of counsel. Where the court complies with Rule 33(a)(1) and advises the defendant of the right to address the court prior to sentencing, any failure on the part of counsel also to so advise the defendant may be obviated, and the defendant may suffer no prejudice from counsel's omission.

The district court here advised Mata of his right to speak and specifically asked if Mata had any comments. Mata then stated that he was not guilty of the theft and made a lengthy plea to the district court for leave to withdraw his guilty plea. Mata's verified application for post-conviction relief, which constitutes the only evidence he presented to the district court in the present proceeding, contains no explanation of how better advice of counsel regarding the right of allocution would have changed the presentation that Mata made to the district court or would have altered the sentence imposed. Consequently, Mata has not identified any prejudice arising from his counsel's alleged inadequate advice.

Mata asserts, however, that he is entitled to an evidentiary hearing on this issue merely because he has alleged that his counsel was inadequate. He cites State v. Kraft, 96 Idaho 901, 906, 539 P.2d 254, 259 (1975), where Justice Bakes stated in a concurrence that, "[t]he question of competency of counsel is an extremely complex factual determination which, in all but the most unusual cases requires an evidentiary hearing for determination." Mata's reliance upon that observation is misplaced. An applicant for post-conviction relief claiming ineffective assistance of counsel is not automatically entitled to an evidentiary hearing. Like a civil litigant resisting a motion for summary judgment, an applicant opposing summary dismissal under I.C. § 19-4906, must present evidence to support every controverted element of the claim for relief. Griffith v. State, 121 Idaho 371, 825 P.2d 94 (Ct.App.1992). See also, Badell v. Beeks, 115 Idaho 101, 102, 765 P.2d 126, 127 (1988); Garzee v. Barkley, 121 Idaho 771, 774, 828 P.2d 334, 337 (Ct.App.1992). If the applicant fails to present evidence establishing an essential element on which he or she bears the burden of proof, summary dismissal is appropriate. Because Mata offered no evidence on an essential element of his claim--that he was prejudiced by his attorney's failure to inform him of his right of allocution--the district court correctly dismissed Mata's application as to this claim. The order of dismissal with respect to this claim is affirmed.

B. Failure of counsel to provide Mata a copy of the presentence report.

Mata also contends that he was denied the effective assistance of counsel at sentencing because his attorney did not provide a copy of the presentence report to him sufficiently in advance of the hearing to allow Mata an opportunity to review it and point out any errors to the court. On this point Mata again fails to show prejudice. While a defendant is entitled to review a presentence investigation and make any corrections necessary, I.C.R. 32(g)(1), the absence of such opportunity does not entitle the defendant to post-conviction relief unless some resulting prejudice is demonstrated. In the present proceeding Mata has not identified any errors in the presentence report that he would have brought...