Berg v. State, 23663

• Court: United States State Supreme Court of Idaho
• Writing for the Court: SCHROEDER; TROUT
• Citation: 960 P.2d 738,131 Idaho 517
• Parties: Michael BERG, Petitioner-Appellant, v. STATE of Idaho, Respondent. North Idaho, April 1998 Term
• Docket Number: No. 23663,23663
• Decision Date: 18 June 1998

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960 P.2d 738 131 Idaho 517 Michael BERG, Petitioner-Appellant,
v.
STATE of Idaho, Respondent. No. 23663. Supreme Court of Idaho, North Idaho, April 1998 Term.
June 18, 1998.

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G. Lamarr Kofoed, Fruitland, for Petitioner-Appellant.

Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for Respondent.

SCHROEDER, Justice.

Michael Berg appeals from the district court's summary dismissal of his application for post-conviction relief. Berg argues: (1) that the prosecutor breached the plea agreement, (2) that the sentence imposed by the district court was an abuse of discretion, and (3) that he was denied effective assistance of counsel.

I.

FACTS AND PROCEDURAL BACKGROUND

Berg pled guilty to one count of forgery and one count of delivery of a controlled substance. In exchange the State agreed to: (1) dismiss several misdemeanor charges, (2) recommend that Berg be released on his own recognizance pending sentencing, and (3) recommend a retained jurisdiction at sentencing.

The agreement did not require the district court to either impose the agreed upon sentence or allow Berg to withdraw the plea. The district court was free to impose whatever sentence appeared appropriate. Berg failed to appear at the sentencing hearing and the court ordered a bench warrant for his arrest. Berg eventually was found in California and extradited back to Idaho.

At the sentencing hearing held following Berg's return to Idaho, the prosecutor recommended a prison sentence without a retained jurisdiction. The district court imposed a unified six-year sentence with three years fixed for forgery and a concurrent unified five-year sentence with three years fixed for delivery of a controlled substance. Berg did not file a timely appeal, but later filed a petition for post-conviction relief alleging: (1) that the prosecution breached the plea agreement, and (2) that he was denied effective assistance of counsel.

At the summary disposition hearing on the petition for post-conviction relief, the district court held that the prosecution did not breach the plea agreement and that Berg was not denied effective assistance of counsel.

II.

STANDARD OF REVIEW

A post-conviction action is separate from the underlying criminal action and is civil in nature. Mata v. State, 124 Idaho 588, 591, 861 P.2d 1253, 1256 (Ct.App.1993). The applicant must prove by a preponderance of the evidence the allegation supporting his or her claim for relief. Id.; 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 section 19-4906 of the Idaho Code (I.C.) 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. However, if genuine issues of material fact exist that would entitle the applicant to relief if resolved in the applicant's favor, summary disposition is improper and an evidentiary hearing must be conducted. Mata, 124 Idaho

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at 591, 861 P.2d at 1256; Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct.App.1994). On appeal from a summary dismissal the question is whether the application, affidavits and other evidence supporting the application allege facts which, if true, would entitle the applicant to relief. Nellsch v. State, 122 Idaho 426, 431, 835 P.2d 661, 666 (Ct.App.1992).

III.

THE PROSECUTION DID NOT BREACH THE PLEA AGREEMENT.

Berg asserted that the prosecutor breached the parties' plea agreement by recommending that he be sentenced to prison rather than recommending a retained jurisdiction. The State argued that the prosecution was not bound by the plea agreement because Berg breached the agreement when he failed to appear at the sentencing hearing. " '[A] defendant is constitutionally entitled to relief when the state breaches a promise made to him in return for a plea of guilty.' " State v. Rutherford, 107 Idaho 910, 913, 693 P.2d 1112, 1115 (Ct.App.1985) (quoting United States v. Ocanas, 628 F.2d 353, 358 (5th Cir.1980)). " '[W]hen the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand.' " Id. (quoting Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 2547, 81 L.Ed.2d 437 (1984)). See also State v. Ballard, 114 Idaho 799, 761 P.2d 1151 (1988); Mata, 124 Idaho at 595, 861 P.2d at 1260; State v. Litz, 122 Idaho 387, 834 P.2d 904 (Ct.App.1992); Jones...