Beasley v. State, 20419

• Decision Date: 18 July 1994
• Docket Number: No. 20419,20419
• Citation: 126 Idaho 356,883 P.2d 714
• Parties: Travis L. BEASLEY, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

Page 714

883 P.2d 714

126 Idaho 356

Travis L. BEASLEY, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 20419.

Court of Appeals of Idaho.

July 18, 1994.

Rehearing Denied Aug. 26, 1994.

[126 Idaho 358] James H. Paulsen, Sandpoint, for appellant.

Larry EchoHawk, Atty. Gen., Thomas P. Watkins, Deputy Atty. Gen. (argued), Boise, for respondent.

PERRY, Judge.

In this appeal, Travis Beasley challenges the district court's denial of his post-conviction application alleging ineffective assistance of counsel in two related cases. After conducting a hearing on his application, the district court ruled that Beasley had not satisfied his burden of establishing a violation of his constitutional right to the effective assistance of counsel with regard to any of the claims alleged in his application. We affirm in part, vacate in part, and remand.

FACTUAL AND PROCEDURAL HISTORY

In October 1990, Beasley was initially questioned as part of a police investigation into a break-in at the Mountain Springs Laundromat in Bonners Ferry, Idaho. He was charged with one count of burglary and one count of grand theft. In exchange for an agreement with the state not to oppose his request for release, Beasley gave a statement to the police. As a result of the statement, which implicated him in another crime, Beasley was charged in connection with burglaries at Trygg Chain in Bonners Ferry. The magistrate subsequently denied Beasley's request to be released on his own recognizance.

When Beasley was first arrested in the Mountain Springs case in October 1990, he contacted Gary Elliott, a public defender with whom he had prior dealings. Attorney Elliott, however, was no longer under contract as public defender for Boundary County, the contract having expired October 1, 1990. ¹ At his arraignment in each case, counsel was appointed to represent Beasley in the district court. Elliott undertook Beasley's representation and acted as his counsel through the December 9, 1990, hearing on a motion to continue the trial date in the Mountain Springs case. Attorneys Featherston and Elliott testified at the post-conviction hearing that Elliott's efforts on behalf of Beasley were provided in his capacity as a conflicts attorney hired by Featherston.

At the hearing on the motion to continue, Elliott advised that he could no longer represent Beasley because he would be leaving his law practice to become a magistrate. Elliott further informed the district court that Featherston, the current Boundary County public defender, represented one of Beasley's co-defendants which created a conflict of interest precluding Featherston from representing Beasley in the Mountain Springs case.

The district court ordered that new counsel be appointed to represent Beasley and continued the trial in the Mountain Springs case. Pursuant to the public defender contract, Featherston hired a private attorney as substitute conflicts counsel for Beasley. A notice of substitution of counsel, signed by Elliott, Featherston and Roger Hanlon, the new conflicts counsel, was filed with the district court in both cases on December 18, 1990.

Following a two-day trial, a jury found Beasley guilty of burglary and grand theft in the Mountain Springs Laundromat case. In the Trygg Chain case, Beasley entered a plea of guilty to two counts of first degree burglary and the remaining three counts against him were dismissed. The cases were consolidated for sentencing, at which time Beasley received concurrent sentences of three to ten years. The judgment of conviction was entered on March 18, 1991.

On May 22, 1991, Beasley filed an application for post-conviction relief, raising various claims of ineffective assistance of counsel. He pointed to attorney Elliott's alleged failure to advise him against giving the statement to the police that led to the charges in the Trygg Chain case. Beasley also pointed to attorney Hanlon's allegedly deficient performance Beasley and the three attorneys involved in his representation testified at the hearing on his post-conviction application. Following the hearing, the district court denied relief and dismissed the application, concluding that Beasley had failed on each of his claims to show deficient performance by counsel or prejudice to Beasley sufficient to satisfy the two-pronged standard for ineffective assistance derived from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). On the conflict of interest claim and counsel's failure to directly appeal, the district court found that Beasley had requested an appeal that counsel inexplicably did not file. The district court, citing Russell v. State, 118 Idaho 65, 794 P.2d 654 (Ct.App.1990), said that Beasley must:

[126 Idaho 359] at trial in the Mountain Springs case. Beasley specifically alleged that Hanlon failed to move to suppress his statement to the police, failed to adequately investigate the case, failed to meet with Beasley until the day of trial, and failed to file an appeal from the judgment of conviction. Beasley also contended that a conflict of interest arose out of the public defender's representation of Beasley and his co-defendant, which denied him the effective assistance of counsel due him under the Constitution.

at a minimum demonstrate there were issues that could have been raised on direct appeal and that those issues will not be resolved on their merits as a result of this post-conviction proceeding.

Because Beasley failed to specify direct appeal issues in his post-conviction application, supported by proof at the hearing, the district court concluded that Beasley had not shown prejudice and therefore, was not entitled to relief. Beasley appealed.

ANALYSIS

The Uniform Post-Conviction Procedure Act, I.C. §§ 19-4901 to 19-4911, is available to show that the conviction was in violation of constitutional rights. I.C. § 19-4901(a)(1). Beasley's claim that he was denied his Sixth Amendment right to the effective assistance of counsel, therefore, is properly raised on post-conviction. See Parrott v. State, 117 Idaho 272, 787 P.2d 258 (1990); Nellsch v. State, 122 Idaho 426, 835 P.2d 661 (Ct.App.1992).

In order to establish a violation of the constitutional guarantee to effective assistance of counsel, the defendant must show both deficient performance and resulting prejudice. Gibson v. State, 110 Idaho 631, 634-35, 718 P.2d 283, 286-87 (1986), citing Strickland, supra. To show that counsel's performance was deficient, the applicant for post-conviction relief has the burden of showing that his or her attorney's representation fell below an objective standard of reasonableness. Aragon v. State, 114 Idaho 758, 760 P.2d 1174 (1988). To establish prejudice, the applicant must show a reasonable probability that, but for his or her attorney's deficient performance, the outcome of the trial would have been different. Id.

1. COUNSEL'S FAILURE TO FILE A DIRECT APPEAL

In his application, Beasley asserts that his counsel's conduct in not filing a direct appeal upon his request was deficient performance under Flores v. State, 104 Idaho 191, 657 P.2d 488 (Ct.App.1983), and State v. Dillard, 110 Idaho 834, 718 P.2d 1272 (Ct.App.1986), cert. denied, 479 U.S. 887, 107 S.Ct. 283, 93 L.Ed.2d 258 (1986), where the Court did not require that prejudice be shown before affording the applicant post-conviction relief. Accordingly, Beasley argues that the district court erred in requiring him to identify the meritorious issues which were lost as a result of the lack of a direct appeal pursuant to Russell v. State, 118 Idaho 65, 794 P.2d 654 (Ct.App.1990). Beasley contends that Russell, supra, is superseded by subsequent United States Supreme Court authority which holds that it is prejudice per se when a criminal defendant requests that an appeal be filed and his counsel fails to comply with this request. See Lozada v. Deeds, 498 U.S. 430, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991). We agree.

A defendant's right to representation by counsel extends to all critical stages of his trial, including appeal. Flores, supra, 104 Idaho at 194, 657 P.2d at 491, citing Douglas v. California, 372 U.S. 353, 83 S.Ct Beasley's case is distinguishable from Flores, supra, where the appellate court remanded to the district court for a factual finding as to whether the defendant had made known to counsel his desire to appeal. Compare also Sanders v. State, 117 Idaho 939, 792 P.2d 964 (Ct.App.1990) (trial court's finding in post-conviction proceeding that petitioner had failed to communicate to his attorney his desire to appeal, based upon evidence presented, was not clearly erroneous). It is undisputed here that Beasley advised his trial counsel of his wish to appeal his conviction. The record also clearly shows that trial counsel, and the public defender who assumed Beasley's representation after the entry of his judgment of conviction, understood that Beasley desired to appeal. ² Therefore, a remand in this case for that factual finding is unnecessary.

[126 Idaho 360] 814, 9 L.Ed.2d 811 (1963). This right to counsel includes the right to effective assistance of counsel. State v. Clayton, 100 Idaho 896, 897, 606 P.2d 1000, 1001 (1980). Where a criminal defendant advises his or her attorney of a desire to appeal, and the attorney fails to take the necessary steps to file an appeal, such a defendant has been denied his or her constitutional right to the effective assistance of counsel at a critical stage in the proceedings. Flores, supra, 104 Idaho at 194-95, 657 P.2d at 491-92.

Unlike Flores and Sanders, which dealt only with the deficient performance prong of the defendant's ineffective assistance claim, Russell addressed the issue of prejudice from counsel's failure to file an appeal. The Court of Appeals explained therein, that because Russell had failed to show prejudice by not identifying what meritorious issues were lost as a result of the lack of a direct appeal, he was not...