Bakke v. State
| Decision Date | 10 May 2022 |
| Docket Number | 48659 |
| Parties | DAVID ROY BAKKE, Petitioner-Appellant, v. STATE OF IDAHO, Respondent. |
| Court | Idaho Court of Appeals |
UNPUBLISHED OPINION
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. Benjamin J. Cluff, District Judge.
Judgment dismissing petition for post-conviction relief affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Ben P McGreevy, Deputy Appellate Public Defender, Boise, for appellant.
Hon Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney General, Boise, for respondent.
David Roy Bakke appeals from the district court's judgment dismissing his petition for post-conviction relief. Bakke was convicted in the underlying criminal case of grand theft for retaining a rental vehicle without paying for it. Bakke alleges the district court abused its discretion when it denied Bakke's discovery motion related to his claim of ineffective assistance of trial counsel for failing to obtain phone and vehicle rental history records. Bakke argues that because the district court erred in denying the discovery request, it erred in subsequently dismissing the above claims of ineffective assistance of counsel and his petition. Discovery in a post-conviction action is not required unless it is necessary to protect a petitioner's substantial rights. Neither the phone nor the vehicle history records are necessary to protect one of Bakke's substantial rights and the district court did not abuse its discretion by denying Bakke's discovery motion. Bakke failed to allege a genuine issue of material fact regarding his claim of ineffective assistance of trial counsel; consequently, the district court did not err in dismissing the claim, specifically, or the petition, generally. The judgment dismissing Bakke's petition for post-conviction relief is affirmed.
A jury found Bakke guilty of grand theft for retaining a rental vehicle for approximately four months without paying for it despite repeated contact with, and requests from, the rental company to return the vehicle. State v. Bakke, 168 Idaho 226, 228, 481 P.3d 1197, 1199 (Ct. App. 2020). Bakke filed an Idaho Criminal Rule 35 motion, which was denied. Bakke appealed, and this Court affirmed the district court's order of restitution and denial of Bakke's Rule 35 motion. Id. at 233, 481 P.3d at 1204.
Bakke filed a petition for post-conviction relief raising various claims, and the district court appointed Bakke counsel. Bakke filed an amended petition for post-conviction relief alleging, in part, ineffective assistance of counsel for failing to obtain phone records that would show frequent communication between Bakke and Avis during the time period Bakke retained the vehicle; financial records that would show Bakke made payments to Avis during that time period; and rental records that would show the course of dealings between the parties and that Bakke had a history with Avis of full payment upon returning vehicles.[1] Bakke filed a motion for discovery to subpoena the phone, financial, and rental history records to support his post-conviction claims. After a hearing, the district court granted Bakke leave to subpoena his financial records for the relevant time period but found Bakke's other discovery requests were irrelevant and/or speculative, and the court denied the remainder of the motion to subpoena the phone and rental history records.
The district court held an evidentiary hearing on Bakke's petition for post-conviction relief at which Bakke and the two attorneys, Rodriquez and Essma, [2] who represented Bakke during his underlying criminal proceeding testified. The district court made factual findings regarding the actions of each of Bakke's trial attorneys. Although there was conflicting testimony about the phone and rental history records, the district court found that "despite whatever records Petitioner communicated to Essma that he wanted to obtain prior to trial" and despite Essma explaining that a continuance of the trial was necessary to obtain and adequately analyze these records, Bakke did not want to continue the trial and chose to go to trial without the documents.
First, the district court held Bakke did not allege a genuine issue of material fact regarding his claims to establish ineffective assistance of counsel for failure to obtain his phone records. The district court found neither Rodriquez nor Essma acted deficiently in not obtaining the phone records because they were not put on notice of facts that would give rise to a need to investigate these records. Further, the district court found even if counsel were put on notice of the importance of the phone records, Bakke told Essma not to seek the records because it would have required a continuance of the trial; consequently, Bakke could not establish trial counsel acted unreasonably in pursuing that trial strategy.[3] Finally, the district court held Bakke could not establish prejudice even if counsel acted deficiently, because the records would merely indicate the number of calls made or attempted between the parties, not the substance of the calls. Bakke also did not show how the records would have a reasonable probability of disproving an element of grand theft. Thus, the district court found any assertion that the phone records would have changed the outcome of the case would be speculative.
Second, the district court found that Bakke did not establish ineffective assistance of counsel for the failure to obtain his past rental history. Again, because Bakke instructed Essma to proceed to trial without the records, Bakke could not establish deficient performance. Even if Bakke had established counsel acted deficiently by failing to obtain the rental history records, the district court found Bakke was not prejudiced by the deficiency because, despite any flexible relationship between Bakke and Avis in the past, the evidence of Avis's contacts with Bakke "overwhelmingly disprove[d]" the existence of permission to retain the car in the underlying criminal case. The district court found Bakke did not allege any genuine issue of material fact as to the claims of ineffective assistance of counsel and entered a judgment dismissing Bakke's petition. Bakke timely appeals.
Whether to authorize discovery is a matter directed to the discretion of the court. Raudebaugh v. State, 135 Idaho 602, 605, 21 P.3d 924, 927 (2001). When a trial court's discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine whether the lower court: (1) correctly perceived the issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted consistently with any legal standards applicable to the specific choices before it; and (4) reached its decision by an exercise of reason. Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018).
On appeal from an order of summary dismissal, we apply the same standards utilized by the trial courts and examine whether the petitioner's admissible evidence asserts facts which, if true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925, 929 (2010); Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (2008). Over questions of law, we exercise free review. Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069 (2009); Downing v. State, 136 Idaho 367, 370, 33 P.3d 841, 844 (Ct. App. 2001).
On appeal, Bakke alleges the district court abused its discretion when it denied his discovery motion for his phone and rental history records; therefore, the dismissal of his claims of ineffective assistance of counsel relating to these records, and the ultimate dismissal of the petition, was in error. In response, the State alleges the district court did not err by denying Bakke's discovery motion for his phone and rental history records and dismissing his petition for post-conviction relief.
When a petitioner believes discovery is necessary for acquisition of evidence to support a claim for post-conviction relief, the petitioner must obtain authorization from the district court to conduct discovery. I.C.R. 57(b); Raudebaugh, 135 Idaho at 605, 21 P.3d at 927. Discovery in a post-conviction action is not required unless necessary to protect a petitioner's substantial rights. Murphy v. State, 143 Idaho 139, 148, 139 P.3d 741, 750 (Ct. App. 2006); Griffith v. State, 121 Idaho 371, 375, 825 P.2d 94, 98 (Ct. App. 1992). Discovery may be denied where the petitioner's claims are nothing more than speculation, unsupported by any evidence. Raudebaugh, 135 Idaho at 605, 21 P.3d at 927. Indeed, discovery may not be used to engage in fishing expeditions, as post-conviction actions provide a forum for known grievances, not an opportunity to search for them. Murphy, 143 Idaho at 148, 139 P.3d at 750. Accordingly, before any post-conviction petitioner will be permitted to conduct discovery, he must identify the specific subject matter(s) where discovery is requested and why discovery as to the matter(s) is necessary to his petition. State v. Dunlap, 155 Idaho 345, 390, 313 P.3d 1, 46 (2013).
Bakke contends he needed his phone and rental history records to provide the factual support for his claims of ineffective assistance of trial counsel; thus, the records were necessary to protect his right to assistance of counsel. Although the right to assistance of counsel is a substantial right, a petitioner is not entitled to discovery simply by asserting that it would aid his ineffective assistance of counsel claim; as with all grounds for post-conviction relief, the discovery must be necessary to protect...
To continue reading
Request your trial