Boncz v. State
| Decision Date | 04 March 2015 |
| Docket Number | 2015 Unpublished Opinion No. 392,Docket No. 41597 |
| Court | Idaho Court of Appeals |
| Parties | MARK BONCZ, Petitioner-Appellant, v. STATE OF IDAHO, Respondent. |
Stephen W. Kenyon, Clerk
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Appeal from the District Court of the First Judicial District, State of Idaho, Bonner County. Hon. Jeff M. Brudie, District Judge.
Judgment summarily dismissing post-conviction action, reversed, and case remanded.
Sara B. Thomas, State Appellate Public Defender; Eric D. Fredericksen, Deputy Appellate Public Defender, Boise, for appellant. Eric D. Fredericksen argued.
Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent. Russell J. Spencer argued.
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Mark Boncz was convicted of lewd conduct with a minor. He filed a petition for post-conviction relief asserting, inter alia, that his lawyer wrongfully prevented him from testifying at his criminal trial. The post-conviction court agreed that there was a question of material fact regarding whether Boncz had been prevented from testifying, but held that any exclusion of his testimony was not prejudicial. Boncz appeals.
After a bench trial, Boncz was convicted of lewd conduct with a minor under sixteen years of age, in violation of Idaho Code § 18-508.1 Thereafter, Boncz filed a post-conviction action raising forty-one claims. Boncz twice amended his petition with the assistance of counsel. His second amended petition asserts the two claims that are at issue in this appeal. Boncz alleges that he had discussed with his defense attorney the possibility of testifying at trial and that he had planned to testify. However, his attorney did not call him to testify. Boncz alleged that this amounted to ineffective assistance of counsel and a deprivation of his constitutional right to testify.
The State filed a motion for summary disposition, and the district court granted the motion. In its memorandum decision, the court appears not to have distinguished the two claims at issue in this appeal, summarizing the issue as "Petitioner contends that trial counsel did not allow him to testify in his own defense at trial." It then cited the standard applicable to an ineffective assistance of counsel claim. Applying that standard, and noting that the trial court had not questioned Boncz to determine if he wished to testify, the district court held that Boncz raised a genuine issue of material fact as to whether his defense attorney had been deficient. However, the claim was summarily dismissed because the district court concluded that Boncz had not shown prejudice. In the court's view, "Boncz provided the court with no exculpatory facts or evidence not already presented at trial."2
On appeal, Boncz raises two claims of error. First, as to his ineffective assistance of counsel claim, Boncz argues that the court erred by concluding that he failed to show prejudice. He argues that the alleged victim was not credible because her trial testimony was inconsistent with her prior reports to her parents and investigators. Boncz, asserts that his own testimonywould have helped show that each version of her story lacked credibility or was implausible. Second, he argues that the district court improperly analyzed his constitutional claim. He contends that the district court properly found that he had been deprived of the right to testify, but then improperly applied the burden of proof with regard to prejudice. He contends that the State was required to prove harmlessness and because the State did not present any evidence regarding Boncz's right to testify, it did not meet its burden.
Idaho Code section 19-4906 authorizes summary dismissal of a petition for post-conviction relief, either pursuant to a motion by a party or upon the court's own initiative, if "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." I.C. § 19-4906(c). When considering summary dismissal, the district court must construe disputed facts in the petitioner's favor, but the court is not required to accept either the petitioner's mere conclusory allegations, unsupported by admissible evidence, or the petitioner's conclusions of law. State v. Payne, 146 Idaho 548, 561, 199 P.3d 123, 136 (2008); Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994). Moreover, because the district court rather than a jury will be the trier of fact in the event of an evidentiary hearing, the district court is not constrained to draw inferences in the petitioner's favor, but is free to arrive at the most probable inferences to be drawn from the evidence. State v. Yakovac, 145 Idaho 437, 444, 180 P.3d 476, 483 (2008); Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011); Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). Such inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify them. Chavez v. Barrus, 146 Idaho 212, 218, 192 P.3d 1036, 1042 (2008); Hayes, 146 Idaho at 355, 195 P.2d at 714; Farnsworth v. Dairymen's Creamery Ass'n, 125 Idaho 866, 868, 876 P.2d 148, 150 (Ct. App. 1994).
Claims may be summarily dismissed if the petitioner's allegations are clearly disproven by the record of the criminal proceedings, if the petitioner has not presented evidence making a prima facie case as to each essential element of the claims, or if the petitioner's allegations do not justify relief as a matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281 (2010); McKay v. State, 148 Idaho 567, 570, 225 P.3d 700, 703 (2010); DeRushé v. State, 146Idaho 599, 603, 200 P.3d 1148, 1152 (2009); Charboneau v. State, 144 Idaho 900, 903, 174 P.3d 870, 873 (2007); Berg v. State, 131 Idaho 517, 518, 960 P.2d 738, 739 (1998); Murphy v. State, 143 Idaho 139, 145, 139 P.3d 741, 747 (Ct. App. 2006); Cootz v. State, 129 Idaho 360, 368, 924 P.2d 622, 630 (Ct. App. 1996). Thus, summary dismissal of a claim for post-conviction relief is appropriate when the court can conclude, as a matter of law, that the petitioner is not entitled to relief even with all disputed facts construed in the petitioner's favor. For this reason, summary dismissal of a post-conviction petition may be appropriate even when the State does not controvert the petitioner's evidence. See Payne, 146 Idaho at 561, 199 P.3d at 136; Roman, 125 Idaho at 647, 873 P.2d at 901.
Conversely, if the petition, affidavits, and other evidence supporting the petition allege facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be summarily dismissed. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004); Berg, 131 Idaho at 519, 960 P.2d at 740; Stuart v. State, 118 Idaho 932, 934, 801 P.2d 1283, 1285 (1990); Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008); Roman, 125 Idaho at 647, 873 P.2d at 901. If a genuine issue of material fact is presented, an evidentiary hearing must be conducted to resolve the factual issues. Kelly, 149 Idaho at 521, 236 P.3d at 1281; Payne, 146 Idaho at 561, 199 P.3d at 136; Goodwin, 138 Idaho at 272, 61 P.3d at 629.
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); Berg, 131 Idaho at 519, 960 P.2d at 740; Sheahan, 146 Idaho at 104, 190 P.3d at 923; Roman, 125 Idaho at 647, 873 P.2d at 901. 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); Martinez v. State, 130 Idaho 530, 532, 944 P.2d 127, 129 (Ct. App. 1997).
To prevail on an ineffective assistance of counsel claim, the petitioner must show that the attorney's performance was deficient and that the petitioner was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct. App. 1995). Because the parties do not contend that the district courterred by finding that there was a genuine issue of material fact as to whether Boncz's counsel performed deficiently by preventing Boncz from testifying, we address only the prejudice prong.
To establish prejudice, the petitioner must show a reasonable probability that, but for the attorney's deficient performance, the outcome of the trial would have been different. Strickland, 466 U.S. at 694; Aragon v. State, 114 Idaho 758, 761, 760 P.2d 1174, 1177 (1988). The significance of Boncz's proposed testimony can be evaluated only within the context of the testimony of several prosecution witnesses, including the child, both of her parents, and a pediatrician. Accordingly, we briefly review the relevant testimony.
It was undisputed that the child lived in a two-story home with her parents and siblings. It is also undisputed that Boncz lived for several months in a camp trailer that was situated in the home's backyard. At the time of the alleged offense, the child was approximately five or six years old, but ten at the time of trial. At trial, she testified to a single incident of touching wherein Boncz rubbed his penis on her vaginal area, and she said that she resisted by trying to push him off with her arms. She said that this occurred inside the trailer.
The child's father testified that the child had reported to him a single episode of manual-genital touching. The child's mother testified at trial that the child...
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