Banuelos v. State

• Decision Date: 13 December 1995
• Docket Number: No. 21549,21549
• Parties: Ramiro Vasquez BANUELOS, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

Page 162

908 P.2d 162

127 Idaho 860

Ramiro Vasquez BANUELOS, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 21549

Court of Appeals of Idaho.

Dec. 13, 1995.

Van G. Bishop, Canyon County Public Defender, Nampa, for appellant.

Alan G. Lance, Attorney General; Myrna A.I. Stahman, Deputy Attorney General, Boise, for respondent.

LANSING, Judge.

Ramiro Vasquez Banuelos appeals from the district court's summary dismissal of his application for post-conviction relief. We affirm the district court's order with respect to Banuelos's claims that the prosecutor breached a plea agreement with Banuelos and that Banuelos's attorneys in the criminal case were ineffective for failure to challenge validity of a wiretap and for failure to reserve the right to appeal from an order denying Banuelos's motion to suppress evidence. We reverse, however, and remand for further proceedings with respect to Banuelos's claim that he received ineffective assistance because his attorneys forced him to plead guilty.

By indictment, Banuelos was charged with conspiracy to deliver cocaine, I.C. §§ 37-2732(a)(1)(A), 37-2732(f); conspiracy to deliver marijuana, I.C. §§ 37-2732(a)(1)(B), 37-2732(f); delivery of cocaine, I.C. § 37-2732(a)(1)(A); and delivery of marijuana, I.C. § 37-2732(a)(1)(B). Banuelos was represented by two attorneys. One of his attorneys was from out-of-state and apparently was admitted pro hac vice to represent Banuelos in association with a licensed Idaho attorney. After motions to suppress evidence were denied by the district court, the trial of Banuelos and two co-defendants began. Three days into the trial, a plea agreement was reached by which Banuelos agreed to plead guilty to the two conspiracy charges and the State agreed to dismiss the delivery charges. After being sentenced, Banuelos filed a motion to withdraw the guilty pleas. That motion was denied. Banuelos appealed from the judgment of conviction and the order denying his motion to withdraw the guilty pleas. On that direct appeal, this Court overturned a restitution order, but otherwise affirmed the judgment of conviction, the sentences, and the order disallowing Banuelos's request to withdraw his pleas. See State v. Banuelos, 124 Idaho 569, 861 P.2d 1234 (Ct.App.1993).

Following that appeal, Banuelos commenced the present proceeding for post-conviction relief, alleging breach of the plea agreement by the State and alleging that Banuelos's defense attorneys provided ineffective assistance in that (1) they failed to preserve Banuelos's right to appeal from an order denying his motion to suppress evidence, (2) they did not move to suppress evidence obtained by the State through a wiretap, and (3) one of the attorneys forced Banuelos to plead guilty after his co-defendants decided to plead guilty because Banuelos's attorney was dependant upon co-defendants' counsel and was not prepared to continue the trial alone. The State moved for summary dismissal of the application, and the district court granted the motion. Banuelos appeals from that order, contending that he was entitled to an evidentiary hearing on his claims.

A. Standard of Review

A post-conviction action is separate from the underlying criminal action and is civil in nature. Peltier v. State, 119 Idaho 454, 456, 808 P.2d 373, 375 (1991); Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct.App.1994). The applicant must prove by a preponderance of the evidence the allegations supporting his claim for relief. I.C.R. 57(c); 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 I.C. § 19-4906 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. Roman, 125 Idaho at 647, 873 P.2d at 901. However, if there exist genuine issues of material fact which, if resolved in the applicant's favor, would entitle the applicant to relief, summary disposition is improper and an evidentiary hearing must be conducted. Gonzales v. State, 120 Idaho 759, 819 P.2d 1159 (Ct.App.1991). On appeal from a summary dismissal, therefore, the question presented is whether the application, affidavits and other evidence supporting the application allege facts which, if true, would entitle the applicant to the requested relief. Whitehawk v. State, 116 Idaho 831, 833, 780 P.2d 153, 155 (Ct.App.1989).

B. Breach of Plea Agreement

Banuelos's application alleged that the prosecutor breached the plea agreement with Banuelos by recommending to the court a sentence in excess of that which the prosecutor agreed to recommend. The district court dismissed this claim on the ground that an identical claim for relief had already been presented in the criminal action by Banuelos's motion for withdrawal of the guilty pleas pursuant to I.C.R. 33, and the district court's denial of that motion had been affirmed in the prior appeal.

The district court's determination was correct. Banuelos's motion in the criminal action to set aside the guilty pleas was predicated upon an allegation that the prosecutor breached a term of the plea agreement regarding sentencing. After taking evidence and conducting a hearing on that motion, the district court found that a specific sentencing recommendation was not part of the plea agreement. This Court affirmed that finding and the order denying Banuelos's motion to withdraw his guilty pleas in the direct appeal. Banuelos, 124 Idaho at 575, 861 P.2d at 1240.

Post-conviction relief is available where "there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice." I.C. § 19-4901(a)(4) (emphasis added). A post-conviction action is not a substitute for and does not supplant a direct appeal from the conviction or sentence. I.C. § 19-4901(b); Paradis v. State, 110 Idaho 534, 537, 716 P.2d 1306, 1309. Therefore, "[a] convicted defendant may not simply relitigate the same factual questions in his application, in virtually the same factual context already presented in a direct appeal." Whitehawk, 116 Idaho at 833, 780 P.2d at 155. The district court therefore correctly dismissed this claim.

C. Ineffective Assistance of Counsel

Banuelos next claims that his guilty pleas should be set aside because he received ineffective assistance of counsel. An applicant seeking relief on this basis must satisfy a two-part test. First, the applicant must show that the attorney's performance in the criminal proceeding was deficient, i.e., that counsel's representation "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). Second, the applicant must demonstrate that the attorney's ineffective performance prejudiced the applicant. Strickland, 466 U.S. at 691-96, 104 S.Ct. at 2066-69; Aragon, 114 Idaho at 760-61, 760 P.2d at 1176-77. To withstand a motion for summary dismissal of an ineffective assistance claim, a post-conviction applicant must allege facts meeting both prongs of this test. Ivey v. State, 123 Idaho 77, 80, 844 P.2d 706, 709 (1992); Roman, 125 Idaho at 649, 873 P.2d at 903. With these standards in mind we will examine each of Banuelos's claims of ineffective assistance of counsel.

1. Lack of preparedness for trial.

The criminal action against Banuelos and related actions against two co-defendants were consolidated for trial. On the third day of the joint trial, the co-defendants decided to plead guilty. Banuelos contends that he was then forced to also plead guilty because his trial attorney had been relying on counsel for the co-defendants to present a joint defense and was unprepared to continue the trial without the other attorneys' participation. According to Banuelos's verified application for post-conviction relief, once the co-defendants had decided to plead guilty, one of Banuelos's defense attorneys insisted that Banuelos also enter guilty pleas, informed Banuelos that the attorney was not prepared to continue with the trial because he was dependent upon the co-defendants' counsel, and informed Banuelos that the attorney was unwilling to continue with the trial defense. Banuelos asserts that as a result, he was forced to plead guilty. Banuelos maintains that he would have gone forward with the trial but for his attorney's insistence that Banuelos give up his defense and plead guilty.

The district court dismissed this claim on the ground that it had already been determined on Banuelos's direct appeal. We find this conclusion erroneous. As noted above, in the criminal case Banuelos had sought to withdraw his guilty pleas on grounds of a breach of the plea agreement by the prosecutor. That was the only basis for setting aside the guilty pleas that was raised in the direct appeal and, so far as we can discern from the record, it was the only challenge to the guilty pleas raised before the trial court in the criminal action. No claim of ineffective assistance of counsel was asserted or resolved in that appeal. Our statement that "the plea was made voluntarily ...," Banuelos, 124 Idaho at 572, 861 P.2d at 1237, was made with reference to the issue then presented regarding the alleged breach of a plea agreement, and did not address any other challenge to the voluntariness of the plea that was not then before the Court. Banuelos's claim that his guilty pleas should be set aside because they were the product of deficient representation by his attorney is based upon alleged facts entirely different from the factual allegations that underlay his claim of a prosecutorial breach of the plea agreement. Therefore, the decision on the prior appeal does not foreclose the present challenge to the guilty pleas based on ineffective assistance of counsel.

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