960 P.2d 738 (Idaho 1998), 23663, Berg v. State

Docket Nº:23663.
Citation:960 P.2d 738, 131 Idaho 517
Opinion Judge:SCHROEDER,
Party Name:Michael BERG, Petitioner-Appellant, v. STATE of Idaho, Respondent.
Attorney:G. Lamarr Kofoed, Fruitland, for Petitioner-Appellant. Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for Respondent.
Judge Panel:TROUT, C.J., and JOHNSON, SILAK and WALTERS, JJ., concur.
Case Date:June 18, 1998
Court:Supreme Court of Idaho
 
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Page 738

960 P.2d 738 (Idaho 1998)

131 Idaho 517

Michael BERG, Petitioner-Appellant,

v.

STATE of Idaho, Respondent.

No. 23663.

Supreme Court of Idaho, North Idaho.

June 18, 1998

Page 739

[131 Idaho 518] G. Lamarr Kofoed, Fruitland, for Petitioner-Appellant.

Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for Respondent.

SCHROEDER, Justice.

Michael Berg appeals from the district court's summary dismissal of his application for post-conviction relief. Berg argues: (1) that the prosecutor breached the plea agreement, (2) that the sentence imposed by the district court was an abuse of discretion, and (3) that he was denied effective assistance of counsel.

I.

FACTS AND PROCEDURAL BACKGROUND

Berg pled guilty to one count of forgery and one count of delivery of a controlled substance. In exchange the State agreed to: (1) dismiss several misdemeanor charges, (2) recommend that Berg be released on his own recognizance pending sentencing, and (3) recommend a retained jurisdiction at sentencing.

The agreement did not require the district court to either impose the agreed upon sentence or allow Berg to withdraw the plea. The district court was free to impose whatever sentence appeared appropriate. Berg failed to appear at the sentencing hearing and the court ordered a bench warrant for his arrest. Berg eventually was found in California and extradited back to Idaho.

At the sentencing hearing held following Berg's return to Idaho, the prosecutor recommended a prison sentence without a retained jurisdiction. The district court imposed a unified six-year sentence with three years fixed for forgery and a concurrent unified five-year sentence with three years fixed for delivery of a controlled substance. Berg did not file a timely appeal, but later filed a petition for post-conviction relief alleging: (1) that the prosecution breached the plea agreement, and (2) that he was denied effective assistance of counsel.

At the summary disposition hearing on the petition for post-conviction relief, the district court held that the prosecution did not breach the plea agreement and that Berg was not denied effective assistance of counsel.

II.

STANDARD OF REVIEW

A post-conviction action is separate from the underlying criminal action and is civil in nature. Mata v. State, 124 Idaho 588, 591, 861 P.2d 1253, 1256 (Ct.App.1993). The applicant must prove by a preponderance of the evidence the allegation supporting his or her claim for relief. Id.; Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct.App.1990). A claim for post-conviction relief will be subject to summary dismissal pursuant to section 19-4906 of the Idaho Code (I.C.) if the applicant has not presented evidence making a prima facie case as to each essential element of the claims upon which the applicant bears the burden of proof. However, if genuine issues of material fact exist that would entitle the applicant to relief if resolved in the applicant's favor, summary...

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