Allen v. State, 083019 IDCCA, 45910

Docket Nº:45910
Opinion Judge:LORELLO, JUDGE
Party Name:WESTON DAVID ALLEN, Petitioner-Appellant, v. STATE OF IDAHO, Respondent.
Attorney:Eric D. Fredericksen, State Appellate Public Defender; Brian R. Dickson, Deputy Appellate Public Defender, Boise, for appellant. Brian R. Dickson argued. Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent. John C. McKinney argued.
Judge Panel:Judge HUSKEY and Judge BRAILSFORD, CONCUR.
Case Date:August 30, 2019
Court:Court of Appeals of Idaho
 
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WESTON DAVID ALLEN, Petitioner-Appellant,

v.

STATE OF IDAHO, Respondent.

No. 45910

Court of Appeals of Idaho

August 30, 2019

UNPUBLISHED OPINION

Appeal from the District Court of the Third Judicial District, State of Idaho, Washington County. Hon. Susan E. Wiebe, District Judge.

Judgment denying petition for post-conviction relief, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Brian R. Dickson, Deputy Appellate Public Defender, Boise, for appellant. Brian R. Dickson argued.

Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent. John C. McKinney argued.

LORELLO, JUDGE

Weston David Allen appeals from the district court's judgment denying his petition for post-conviction relief following an evidentiary hearing. Allen argues the district court erred in denying his petition because he proved, by a preponderance of the evidence, that his trial counsel was ineffective for failing to file a motion to suppress. For the reasons set forth below, we affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

In his underlying criminal case, the State charged Allen with possession of a controlled substance (methamphetamine), driving without privileges, and failure to provide proof of insurance. Pursuant to a plea agreement, Allen pled guilty to possession of a controlled substance; and the State dismissed the other two charges, agreed not to file additional charges (including a persistent violator enhancement), and agreed to recommend a unified four-year sentence with two years fixed. The State complied with the terms of the plea agreement, including the agreed upon sentencing recommendation. However, the district court imposed a unified seven-year sentence with three years fixed.

Allen filed a pro se petition for post-conviction relief, alleging that his trial counsel was ineffective for failing to file an I.C.R. 35 motion for reduction of sentence despite Allen's request to do so. Allen further alleged that neither the vehicle he was driving at the time of his arrest, nor the methamphetamine found during the inventory search of the vehicle, belonged to him. Allen specifically averred: "I don't feel I am liable or elegible [sic] for possession when I am not the owner of the vehicle."

Allen also filed a motion for appointment of counsel, which the district court granted. Post-conviction counsel subsequently filed an amended petition. In the amended petition, Allen incorporated the allegations and claims from his pro se petition and included a "further claim of ineffective assistance of counsel," which was that trial counsel was ineffective for failing to file a motion to suppress based on the allegedly "illegal impoundment and inventory search of [Allen's] vehicle." Allen asserted the impoundment and inventory search was illegal because it was done in violation of the Fourth Amendment.

The district court conducted an evidentiary hearing, at which Allen and the arresting officer testified. Following the evidentiary hearing, the district court entered an order denying post-conviction relief and a judgment dismissing Allen's petition. The district court concluded that Allen did not have standing to challenge the impoundment and search of the vehicle and that, even if he did, the impoundment and search complied with constitutional standards.[1] Allen appeals.

II.

STANDARD OF REVIEW

In order to prevail in a post-conviction proceeding, the petitioner must prove the allegations by a preponderance of the evidence. I.C. § 19-4907; Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); Baxter v. State, 149 Idaho 859, 861, 243 P.3d 675, 677 (Ct. App. 2010). When reviewing a decision denying 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); Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004); Russell v. State, 118 Idaho 65, 67, 794...

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