Chippewa v. State

• Decision Date: 13 August 2014
• Docket Number: No. 40527.,40527.
• Citation: 332 P.3d 827,156 Idaho 915
• Court: Idaho Court of Appeals
• Parties: Daniel CHIPPEWA, Petitioner–Appellant, v. STATE of Idaho, Respondent.

156 Idaho 915

332 P.3d 827

Daniel CHIPPEWA, Petitioner–Appellant,

v.STATE of Idaho, Respondent.

No. 40527.

Court of Appeals of Idaho.

Aug. 13, 2014.

Review Denied Sept. 9, 2014.

Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent.

GUTIERREZ, Chief Judge.

Daniel Chippewa appeals from the judgment of the district court summarily dismissing his petition for post-conviction relief. The issue raised on appeal is whether the district court erred when it summarily dismissed Chippewa's post-conviction claim that he received ineffective assistance of counsel because he was represented by conflicted counsel. For the reasons that follow, we affirm.

I.FACTS AND PROCEDURE

Underlying this post-conviction action is Chippewa's conviction for felony driving under the influence and subsequent probation violations. Chippewa was charged with felony driving under the influence and an attorney (a former prosecutor) was appointed to represent him. Less than a week later, the former prosecutor moved to withdraw because she had previously prosecuted Chippewa and noted that Chippewa's conviction for which she served as the prosecutor may have been used in the pending charge as an enhancement. After the court granted the former prosecutor's motion to withdraw, Chippewa was appointed new counsel and pleaded guilty to felony driving under the influence. The court imposed a unified sentence of nine years, with six years determinate, but suspended the sentence and placed Chippewa on probation for five years. Chippewa violated his probation, admitted to the violation, and the court revoked probation, executed his sentence, and retained jurisdiction.

At a review hearing on Chippewa's retained jurisdiction, the former prosecutor was again appointed to represent Chippewa, which she did. Subsequently, the court granted Chippewa probation for a second time. Chippewa again violated his probation, admitted to the violation, and was represented by the former prosecutor at the probation revocation hearing. The court decided to revoke probation and executed Chippewa's original sentence. A week after the court revoked Chippewa's probation, the former prosecutor filed an Idaho Criminal Rule 35 motion for relief from the sentence. After considering the motion, the district court denied the Rule 35 motion¹ and entered an amended judgment.

Approximately a year after the court denied Chippewa's Rule 35 motion, he filed a pro se petition for post-conviction relief alleging three claims of ineffective assistance of counsel, including with the petition an affidavit with factual support. Relevant to this appeal, one claim in the petition alleged, "Presumptive prejudice: counsel was previous prosecutor in my case, she was asked to withdraw, did so, but th[e]n assigned again at the sentencing stage, creating gross conflict of interest, against objection." The State filed a motion for summary dismissal, and at a hearing on that motion, the court determined that the State's motion was not timely filed. Subsequently, the court granted Chippewa's petition for post-conviction relief in part,² but summarily dismissed Chippewa's two remaining claims, including the claim that he received ineffective assistance of counsel because he was represented by conflicted counsel. Chippewa appeals.

II.STANDARD OF REVIEW

A petition for post-conviction relief initiates a civil, rather than criminal, proceeding, governed by the Idaho Rules of Civil Procedure. I.C. § 19–4907 ; State v. Yakovac, 145 Idaho 437, 443, 180 P.3d 476, 482 (2008). See also Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642, 646 (2008). Like plaintiffs in other civil actions, the petitioner must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990) ; Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct.App.2002). A petition for post-conviction relief differs from a complaint in an ordinary civil action, however, in that it must contain more than "a short and plain statement of the claim" that would suffice for a complaint under Idaho Rule of Civil Procedure 8(a)(1). State v. Payne, 146 Idaho 548, 560, 199 P.3d 123, 135 (2008) ; Goodwin, 138 Idaho at 271, 61 P.3d at 628. The petition must be verified with respect to facts within the personal knowledge of the petitioner, and affidavits, records or other evidence supporting its allegations must be attached, or the petition must state why such supporting evidence is not included. I.C. § 19–4903. In other words, the petition must present or be accompanied by admissible evidence supporting its allegations or it will be subject to dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct.App.2011) ; Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct.App.1994).

Idaho Code § 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. Payne, 146 Idaho at 561, 199 P.3d at 136 ; Roman, 125 Idaho at 647, 873 P.2d at 901. 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. Yakovac, 145 Idaho at 444, 180 P.3d at 483 ; Wolf, 152 Idaho at 67, 266 P.3d at 1172 ; 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.3d 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, 146 Idaho 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). We also note that an appellate court may affirm a lower court's decision on a legal theory different from the one applied by that court. In re Estate of Bagley, 117 Idaho 1091, 1093, 793 P.2d 1263, 1265 (Ct.App.1990).

III.ANALYSIS

The sole issue raised by Chippewa on appeal is whether the district court erred when it summarily dismissed his post-conviction claim that he received ineffective assistance of counsel because he was represented by conflicted counsel. A petition for post-conviction relief may raise the issue of conflicted counsel under a claim of ineffective assistance of counsel. E.g., Nevarez v. State, 145 Idaho 878, 885, 187 P.3d 1253, 1260 (Ct.App.2008) (analyzing a claim of...