Anderson v. State, Docket No. 32398 (Idaho App. 10/31/2007)
| Decision Date | 31 October 2007 |
| Docket Number | Docket No. 32398. |
| Parties | FREDERICK J. ANDERSON, Petitioner-Appellant, v. STATE OF IDAHO, Respondent. |
| Court | Idaho Court of Appeals |
Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. Peter D. McDermott, District Judge.
Summary dismissal of petition for post-conviction relief, affirmed in part, reversed in part, and case remanded.
Molly J. Huskey, State Appellate Public Defender; Justin M. Curtis, Deputy Appellate Public Defender, Boise, for appellant. Justin M. Curtis argued.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent. Lori A. Fleming argued.
Frederick J. Anderson appeals from the summary dismissal of his petition for post-conviction relief.
Frederick J. Anderson was originally charged with first degree murder by aggravated battery of a child under twelve, Idaho Code §§ 18-4001, -4003(d), and with being a persistent violator, I.C. § 19-2514. Pursuant to a plea agreement, he pleaded guilty to an amended charge of voluntary manslaughter, I.C. § 18-4006(1). Anderson was sentenced to a unified term of fifteen years, with seven years determinate. He then filed an Idaho Criminal Rule 35 motion for reduction of sentence, which the district court denied. This Court affirmed the sentence and denial of the Rule 35 motion on appeal. State v. Anderson, Docket No. 30740 (Ct. App. April 15, 2005) (unpublished).
Anderson thereafter filed a petition for post-conviction relief, raising several claims, including the argument that counsel was ineffective for advising him that he did not have a viable challenge to the persistent violator enhancement. The state responded with an answer and a motion for summary judgment. Without providing further notice, the district court dismissed Anderson's petition for post-conviction relief after a hearing on the motion. Anderson now appeals, asserting that the state's motion for summary dismissal did not express the reasons for summary dismissal with particularity, and that he raised a genuine issue of material fact on his ineffective assistance of counsel claim regarding the persistent violator enhancement.
An action for post-conviction relief is civil in nature and is governed by the Idaho Rules of Civil Procedure. Pizzuto v. State, 127 Idaho 469, 470, 903 P.2d 58, 59 (1995); Mata v. State, 124 Idaho 588, 591, 861 P.2d 1253, 1256 (Ct. App. 1993). Like a plaintiff in a civil action, the applicant must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. I.C. § 19-4907; Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). An application for post-conviction relief differs from a complaint in an ordinary civil action, however, for an application must contain much more than "a short and plain statement of the claim" that would suffice for a complaint under I.R.C.P. 8(a)(1). Rather, an application for post-conviction relief must be verified with respect to facts within the personal knowledge of the applicant, and affidavits, records or other evidence supporting its allegations must be attached, or the application must state why such supporting evidence is not included with the application. I.C. § 19-4903. In other words, the application must present or be accompanied by admissible evidence supporting its allegations, or the application will be subject to dismissal. We do not give evidentiary value to mere conclusory allegations that are unsupported by admissible evidence. Drapeau v. State, 103 Idaho 612, 617, 651 P.2d 546, 551 (Ct. App. 1982).
If the applicant's evidence has raised no genuine issue of material fact which, if resolved in the applicant's favor, would entitle him to the requested relief, the trial court may summarily dismiss a petition for post-conviction relief, either upon motion of a party or on the court's own initiative. I.C. § 19-4906; Medrano v. State, 127 Idaho 639, 643, 903 P.2d 1336, 1340 (Ct. App. 1995); Gonzales v. State, 120 Idaho 759, 761, 819 P.2d 1159, 1161 (Ct. App. 1991). On review of a dismissal of a post-conviction relief application without an evidentiary hearing, we determine whether a genuine issue of fact exists based on the pleadings, depositions and admissions together with any affidavits on file, liberally construing the facts and reasonable inferences in favor of the non-moving party. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct. App. 1993).
All of the claims that Anderson raised in his petition alleged ineffective assistance of counsel. In order to prevail on such a claim, the applicant must demonstrate by competent evidence both that his attorney's performance was deficient, and that he was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 687 (1984); Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct. App. 1995); Davis v. State, 116 Idaho 401, 406, 775 P.2d 1243, 1248 (Ct. App. 1989). To show deficient performance, a defendant must overcome the strong presumption that counsel's performance was adequate by demonstrating "that counsel's representation did not meet objective standards of competence." Roman v. State, 125 Idaho 644, 648-49, 873 P.2d 898, 902-03 (Ct. App. 1994). Strategic or tactical decisions will not be found to be deficient performance "unless those decisions are made upon a basis of inadequate preparation, ignorance of the relevant law, or other shortcomings capable of objective evaluation." Davis, 116 Idaho at 406, 775 P.2d at 1248. If a defendant succeeds in establishing that counsel's performance was deficient, he must also prove the prejudice element by showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different." Roman, 125 Idaho at 649, 873 P.2d at 903.
In his petition for post-conviction relief, Anderson raised several claims, arguing that counsel was ineffective for (1) failing to challenge the interrogation procedures used by the police; (2) incorrectly advising him that he did not have a viable challenge to the persistent violator enhancement in light of the fact that one of his previous felonies had resulted in a withheld judgment; (3) failing to investigate Anderson's version of events; and (4) telling him that he had no defense and coaching him on what to say so that his plea would be accepted.1 The state's motion for summary judgment addressed only one of these issues, asserting that Anderson had shown neither deficient performance nor prejudice in his attorney's advice regarding the persistent violator enhancement. The state did not touch at all on Anderson's other three claims. Anderson argues that his petition for post-conviction relief was improperly dismissed because he did not receive sufficient notice of the evidentiary or legal deficiencies in his application. We agree in part.
Initially, the state argues that Anderson cannot complain of lack of particularized notice in this appeal because he waived the issue by responding, without objection, to the state's motion to dismiss. This Court rejected that argument in Franck-Teel v. State, 143 Idaho 664, 152 P.3d 25 (Ct. App. 2006) rev. denied. See also Garza v. State, 139 Idaho 533, 82 P.3d 445 (2003). The state urges us to reconsider Franck-Teel. We decline the invitation.
It is well established that a petitioner is entitled to notice and an opportunity to respond before his petition for post-conviction relief is dismissed. I.C. § 19-4906(b); Saykhamchone v. State, 127 Idaho 319, 321, 900 P.2d 795, 797 (1995); State v. Christensen, 102 Idaho 487, 488-89, 632 P.2d 676, 677-78 (1981); Martinez v. State, 126 Idaho 813, 892 P.2d 488 (Ct. App. 1995). If the dismissal is based upon the state's motion for summary dismissal, this requirement is met only if the motion states with particularity the ground on which summary dismissal is sought. Saykhamchone, 127 Idaho at 322, 900 P.2d at 798; Christensen; 102 Idaho at 488-89, 632 P.2d at 677-78. Broad and generic contentions of deficiencies in a petition for post-conviction relief do not suffice. Franck-Teel, 143 Idaho at 668-69, 152 P.3d at 29-30. Proper notice must refer to specific allegations in the petition on a claim-by-claim basis, and specifically refer to deficiencies in the evidence or additional legal analysis necessary to avoid summary dismissal of the claim. Id. at 668, 152 P.3d at 29. See also Crabtree v. State, 144 Idaho 489, 494, 163 P.3d 1201, 1206 (Ct. App. 2006).
As noted above, the state's motion did not specifically address three of Anderson's claims. The state's general recitation of the required elements of ineffective assistance of counsel and the rules about conclusory allegations is insufficient to provide notice. Likewise, trial counsel's affidavit, which merely disputed the facts, did not explain why, as a matter of law and even assuming that the facts were resolved in Anderson's favor, the state was entitled to summary dismissal. The state's motion for summary dismissal simply did not furnish Anderson with the requisite notice on these three issues. See Franck-Teel, 143 Idaho at 669, 152 P.3d at 30.
Alternatively, the state argues that the inadequacy of notice was harmless error. Inadequate notice is harmless if the petitioner's response to the state's motion for summary dismissal reveals that the petitioner understood the basis for dismissal of the issues inadequately addressed in the motion to dismiss. Franck-Teel, 143 Idaho at 671, 152 P.3d at 32. The error here was not harmless.
Although post-conviction counsel for Anderson filed a response to the state's motion for summary disposition and argued the merits of each...
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