Andrus v. State, 010919 IDCCR, 45297

Docket Nº:45297
Opinion Judge:HUSKEY, Judge
Party Name:LAWRENCE SCOTT ANDRUS, Petitioner-Appellant, v. STATE OF IDAHO, Respondent.
Attorney:Fyffe Law; Robyn A. Fyffe, Boise, for appellant. Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent.
Judge Panel:Chief Judge GRATTON and Judge LORELLO CONCUR.
Case Date:January 09, 2019
Court:Court of Appeals of Idaho

LAWRENCE SCOTT ANDRUS, Petitioner-Appellant,


STATE OF IDAHO, Respondent.

No. 45297

Court of Appeals of Idaho

January 9, 2019

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. John K. Butler, District Judge.

Order denying Idaho Rule of Civil Procedure 60(b) motion for relief from judgment, reversed; and case remanded.

Fyffe Law; Robyn A. Fyffe, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent.


Lawrence Scott Andrus appeals from the district court's order denying his Idaho Rule of Civil Procedure 60(b) motion following the summary dismissal of his petition for post-conviction relief. Andrus claims that under the circumstances, he has established unique and compelling circumstances that demonstrate the district court erred when it denied the I.R.C.P. 60(b) motion. We reverse the district court's order and remand the case for further proceedings consistent with this opinion.


In the underlying criminal case, Andrus was charged with felony driving under the influence of alcohol. After trial, the jury returned a guilty verdict. Andrus filed an Idaho Criminal Rule 35 motion for a reduction of his sentence, which was denied by the district court. Andrus appealed and this Court affirmed the judgment of conviction and the sentence. State v. Andrus, Docket No. 42878 (Ct. App. Jan. 14, 2016) (unpublished). Thereafter, Andrus filed a petition for post-conviction relief and requested that counsel be appointed. Initially, the district court appointed the Twin Falls County Public Defender's Office. However, due to a conflict, that office was unable to represent Andrus and needed to provide conflict counsel. These circumstances made it unlikely that Andrus, with the assistance of counsel, could comply with the sixty-day deadline for amending the petition as set forth in the district court's scheduling order. Consequently, the public defender's office requested an extension of time to amend the petition. The district court granted the extension and ordered that any amended petition be filed by May 31, 2016.

Conflict counsel was appointed on April 21, 2016. The State filed its answer on June 15, 2016. On July 11, 2016, the district court filed a notice of intent to dismiss the initial petition pursuant to Idaho Code § 19-4906(b). As of July 11, 2016, no documents had been filed by appointed counsel. However, on July 26, 2016, conflict counsel requested an extension of time to amend the petition. The motion, in its entirety, read as follows: COMES NOW [conflict counsel], counsel for the Petitioner, LAWRENCE SCOTT ANDRUS, and hereby requests an Extension of Time in which to file a response to file a response in the Notice of Dismissal. The basis for this Motion is that the counsel of the Petitioner has not been able to speak with the Petitioner and obtain further information from him. The Petitioners schedule has not allowed him sufficient time to allow him to respond. Counselor request an additional 30 days.

Conflict counsel provided no explanation of the actions he took to contact Andrus or why he had not spoken to his client in more than three months. Also on July 26, 2016, counsel sent what appears to be the first and only letter to Andrus.1 The district court granted Andrus a thirty-day extension. However, the record reflects that counsel filed no other motions, documents, amendments, or pleadings in the case. Andrus failed to reply within the thirty-day extension and thereafter, the district court dismissed Andrus's petition for post-conviction relief with prejudice.

Andrus timely appealed and this Court, on the record before it, affirmed the dismissal of the petition. Andrus v. State, Docket No. 44686 (Ct. App. Jan. 24, 2018) (unpublished). Andrus then filed a request in the district court for a copy of the register of actions. Next, Andrus filed a motion seeking relief pursuant to I.R.C.P. 60(b)(6). He alleged that aside from counsel notifying him that he had filed a motion for extension of time, Andrus had no written or oral communication with or from his appointed post-conviction counsel. He further asserted his appointed counsel filed no motions, amendments, or other documents on behalf of Andrus, despite Andrus having sent two letters requesting investigation and/or asking questions about the case. Andrus asserted that this inaction constituted a complete absence of meaningful representation and that Andrus relied on his counsel's representation to Andrus's detriment. Andrus further argued that because he could not file a successive petition, relief was warranted under I.R.C.P. 60(b)(6). Post-conviction counsel was not listed on the certificate of service for the I.R.C.P. 60(b) motion.

The State objected to the motion, arguing that the district court no longer had jurisdiction because...

To continue reading