Baruth v. Gardner
| Citation | 110 Idaho 156,715 P.2d 369 |
| Decision Date | 20 February 1986 |
| Docket Number | No. 15893,15893 |
| Parties | Roger E. BARUTH, Petitioner-Appellant, v. Darroll GARDNER, Warden; Idaho State Correctional Institution and State of Idaho; Defendants-Respondents. |
| Court | Court of Appeals of Idaho |
Charles L.A. Cox, Evans, Keane, Koontz, Boyd & Ripley, Kellogg, for petitioner-appellant.
Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., for defendants-respondents.
ON DENIAL OF PETITION FOR REHEARING
This Opinion Supercedes Prior Opinion Issued December 10, 1985, Which is Withdrawn.
Roger Eugene Baruth appeals from the summary dismissal of his petition for post-conviction relief, under I.C. § 19-4906. Baruth was convicted after a jury trial of robbery. 1 On appeal he presents three issues: (1) whether the district court erred by not giving Baruth twenty-days notice under I.C. § 19-4906 before dismissing the petition for post-conviction relief; (2) whether the judge who dismissed his application erred in requiring Baruth to provide factual support for the allegations contained in the petition for post-conviction relief; (3) whether the pretrial identification procedure was unnecessarily suggestive so as to constitute fundamental error. In response, the state contends Baruth's appeal was untimely filed and should be dismissed. We decline to dismiss the appeal. On the merits, we affirm the order of dismissal.
As a preliminary matter, we will address first the state's position that Baruth's appeal should be dismissed as untimely. The state supports this contention by pointing out that Idaho Appellate Rule 14 requires a notice of appeal to be filed with the clerk of the district court within forty-two days from the filing of an appealable judgment or order. The order dismissing Baruth's petition for post-conviction relief was filed November 23, 1984. Baruth filed his notice of appeal from that order on January 21, 1985, fifty-nine days later. However, prior to July 1, 1985, the statutorily prescribed time for review on a final judgment under the Uniform Post-Conviction Act was within sixty days from the entry of judgment. I.C. § 19-4909. The statute has since been amended to provide for a forty-two day period, consistent with I.A.R. 14. When Baruth filed his appeal, he was timely under the statute, but not under the appellate rule.
Our Supreme Court recently dealt with the conflict between the appellate rule and I.C. § 19-4909. Under similar circumstances the Court declined to dismiss an appeal as being untimely. Carter v. State, 108 Idaho 788, 702 P.2d 826 (1985). The Court found that, in the interest of justice and because of the conflict between the rule and the statute, the appeal should not be dismissed. Therefore, we decline to dismiss Baruth's appeal but will address the merits.
Baruth contends that the district court erred in not providing him with twenty-days notice of the proposed dismissal pursuant to I.C. § 19-4906(b). This argument invites note of the distinctions between sections (b) and (c) of I.C. § 19-4906:
(b) When a court is satisfied, on the basis of the application, the answer or motion, and the record, that the applicant is not entitled to post-conviction relief and no purpose would be served by any further proceedings, it may indicate to the parties its intention to dismiss the application and its reasons for so doing. The applicant shall be given an opportunity to reply within 20 days to the proposed dismissal....
(c) The court may grant a motion by either party for summary disposition of the application when it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Idaho Code § 19-4906(b) governs only those situations where the trial court on its own initiative determines to dismiss the petition. State v. Christensen, 102 Idaho 487, 632 P.2d 676 (1981). The purpose of the notice requirement is to ensure that the petitioner will have the opportunity to challenge an adverse decision before it becomes final. Gibbs v. State, 103 Idaho 758, 653 P.2d 813 (Ct.App.1982). Idaho Code § 19-4906(c) contains no provision for the twenty-day notice requirement because the motion itself, brought by either party, serves as notice that summary dismissal is being sought. State v. Christensen, supra. When the court dismisses a case upon the state's motion for dismissal, it must still provide twenty-days notice if the dismissal is based on grounds different from those presented in the motion for dismissal. Gibbs v. State, supra. In such a situation the motion for dismissal would provide insufficient notice of the reasons for the proposed dismissal.
In the present case the state filed a motion for dismissal pursuant to I.C. § 19-4906(c). It was accompanied by a brief and it listed six grounds for dismissal including three grounds based on a lack of factual allegations in the petition. Baruth responded with a "Traverse" which contained argument and citation of authority against the motion. Several months later, after counsel was appointed for Baruth, the court dismissed the petition without an evidentiary hearing. In its order of dismissal, the court discussed only three of the grounds raised by the state. In two instances the court agreed with the state, that Baruth had failed to make any specific factual allegations about pretrial publicity and its alleged effect upon witness identification. In the third instance the court conceded that Baruth may have alleged sufficient facts to raise the issue as to whether the victim's in-court identification--at the preliminary hearing--was unduly suggestive. However, the court concluded that even if error had occurred, it was harmless error. Even without the objectionable evidence, the remaining evidence so strongly identified Baruth and connected him to the robbery, the trial result would have been the same beyond a reasonable doubt. See, e.g., State v. LePage, 102 Idaho 387, 630 P.2d 674 (1981), cert. denied, 454 U.S. 1057, 102 S.Ct. 606, 70 L.Ed.2d 595 (1981); State v. Urquhart, 105 Idaho 92, 665 P.2d 1102 (Ct.App.1983). Because the court disposed of the petition on grounds set forth in the state's motion, we hold that the motion provided sufficient notice to Baruth and that no additional notice was required to be given by the court. State v. Christensen, supra.
We next address whether the court erred by applying an incorrect test for summary disposition of Baruth's petition. Baruth specifically disputes the trial court's ruling that he failed to support his allegations that pretrial publicity and identification procedures influenced the victim to identify him.
Baruth correctly asserts that until the allegations in an application for post-conviction relief are in some manner controverted by the state, those allegations must be deemed to be true. Tramel v. State, 92 Idaho 643, 448 P.2d 649 (1968). Although the state in its brief in support of the motion for dismissal contended that Baruth's allegations of tainted identification were not supported by relevant facts, the state did not directly controvert the substance of the allegations. "A motion to dismiss, unsupported by affidavits or depositions, does not controvert the facts alleged in the petition." Smith v. State, 94 Idaho 469, 472, 491 P.2d 733, 736 (1971). However, if the allegations would not entitle Baruth to relief even if proved, it would not be error to dismiss the application without affording an evidentiary hearing. See Clark v. State, 92 Idaho 827, 452 P.2d 54 (1969). The issue on appeal from a dismissal of an application for post-conviction relief is whether the petition alleges facts which if true would entitle the petitioner to relief. Smith v. State, supra.
It is also the rule that a conclusory allegation, unsubstantiated by any fact, is insufficient to entitle a petitioner to an evidentiary hearing. Smith v. State, supra; Drapeau v. State, 103 Idaho 612, 651 P.2d 546 (Ct.App.1982). Idaho Code § 19-4903 states that "[a]ffidavits, records, or other evidence supporting its allegations shall be attached to the application or the application shall recite why they are not attached." Baruth made only conclusory allegations about the effect of pretrial publicity on witness identifications. Therefore, we hold that the...
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