Cherniwchan v. State
Decision Date | 02 May 1978 |
Docket Number | No. 12493,12493 |
Citation | 578 P.2d 244,99 Idaho 128 |
Parties | James Arthur CHERNIWCHAN, also known as Ben Cole, Petitioner-Appellant, v. STATE of Idaho, Respondent. |
Court | Idaho Supreme Court |
W. Baxter Brown, Coeur d'Alene, for petitioner-appellant.
Wayne L. Kidwell, Atty. Gen., Arthur James Berry, III, Asst. Atty. Gen., Boise, for appellee.
This appeal is from the judgment of the district court denying, without an evidentiary hearing, appellant's application for post-conviction relief. The judgment of the district court is reversed and the case is remanded.
Petitioner-appellant James A. Cherniwchan pleaded guilty to charges of second degree kidnapping and was sentenced to twenty-five years imprisonment. Appellant then applied for post-conviction relief, alleging that he had been denied effective assistance of counsel at his sentencing hearing. When the state failed to respond to the post-conviction relief application, appellant moved for summary disposition of the application pursuant to I.C. § 19-4906(c). The district court summarily dismissed the application based on the sentencing hearing transcript, the application for post-conviction relief and the affidavits of appellant and appellant's counsel. Appellant appeals from the denial of post-conviction relief pursuant to I.C. § 19-4909 and requests a resentencing hearing.
Appellant's claim for post-conviction relief is based on the alleged denial of competence assistance of counsel at the sentencing hearing. The substance of this claim is that his newly appointed counsel was not given sufficient time to adequately prepare for the sentencing hearing. The basic issue presented by this appeal is whether the district court erred in summarily denying appellant's application.
From the transcript of the sentencing hearing it is apparent that appellant's newly appointed counsel, James F. Judd, Chief Public Defender, had only minimal time to prepare for appellant's sentencing hearing. However, that record also shows that appellant advised the court that he then wished to proceed with the sentencing hearing, that he was fully aware of the consequences that could follow, and that appellant agreed to be represented by Mr. Judd at the hearing.
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Saykhamchone v. State
...the application for post-conviction relief. Peltier v. State, 119 Idaho 454, 456-57, 808 P.2d 373, 375-76 (1991); Cherniwchan v. State, 99 Idaho 128, 578 P.2d 244 (1978). However, under I.C. § 19-4906(c), where a party moves to dismiss the application without a hearing, the twenty-day notic......
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State v. Haggard
...enforcement. See Balla v. State, 98 Idaho 344, 345, 563 P.2d 402, 403 (1977), overruled on other grounds by Cherniwchan v. State, 99 Idaho 128, 578 P.2d 244 (1978). The equal protection clauses of the state and federal constitutions embrace the principle that all persons in like circumstanc......
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State v. Haggard, Docket No. 33948 (Idaho App. 2/11/2008)
...enforcement. See Balla v. State, 98 Idaho 344, 345, 563 P.2d 402, 403 (1977), overruled on other grounds by Cherniwchan v. State, 99 Idaho 128, 578 P.2d 244 (1978). The equal protection clauses of the state and federal constitutions embrace the principle that all persons in like circumstanc......
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State v. Beorchia
...on an application for post-conviction relief without any factual or legal issues first being framed." Cherniwchan v. State, 99 Idaho 128, 130 n. 2, 578 P.2d 244, 246 n. 2 (1978). In this case, after denying Beorchia's motion for summary disposition, the district court ordered the state to f......