Ciccone v. State
| Decision Date | 06 May 2016 |
| Docket Number | No. 43075.,43075. |
| Citation | 160 Idaho 354,372 P.3d 409 |
| Court | Idaho Court of Appeals |
| Parties | Albert A. CICCONE, Petitioner–Appellant, v. STATE of Idaho, Respondent. |
Nevin, Benjamin, McKay & Bartlett, LLP; Deborah A. Whipple, Boise, for appellant. Dennis Benjamin argued.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent. Lori A. Fleming argued.
Albert A. Ciccone appeals from the district court's dismissal of his successive petition for post-conviction relief. He specifically argues that his trial counsel was ineffective for failing to submit a psychological evaluation as mitigation evidence at sentencing. For the reasons set forth below, we affirm.
Ciccone deliberately struck his pregnant wife with his car, killing her and the unborn child. Ciccone was found guilty of murder in the first degree for the death of his wife ( Idaho Code §§ 18–4001, 18–4002, and 18–4003 ), and murder in the second degree for the death of the child ( I.C. §§ 18–4001, 18–4002, 18–4003, and 18–4016 ). After the trial, but prior to sentencing, the court ordered a psychological evaluation of Ciccone, at county expense, upon the stipulation of the parties.1 Ciccone's trial counsel ultimately decided against presenting this evaluation to the court as mitigation evidence at sentencing. The trial court imposed a determinate life sentence for the first degree murder conviction and a concurrent determinate fifteen-year sentence for the second degree murder conviction. Ciccone appealed his conviction and sentences, but the Idaho Supreme Court dismissed the appeal as untimely. State v. Ciccone, 150 Idaho 305, 246 P.3d 958 (2010). Ciccone then filed a petition for post-conviction relief, alleging trial counsel was ineffective for failing to timely file a notice of appeal from the judgment in the underlying criminal case. Pursuant to a stipulation of the parties, the district court granted relief and reentered the judgment of conviction allowing Ciccone to appeal. Ciccone filed a timely appeal, and this Court affirmed his conviction and sentences. State v. Ciccone, 154 Idaho 330, 297 P.3d 1147 (Ct.App.2012).
Ciccone then filed a successive petition for post-conviction relief alleging various claims of ineffective assistance of trial and appellate counsel. The district court appointed counsel and granted Ciccone an evidentiary hearing. Following the hearing, the district court dismissed Ciccone's petition, holding that he had not met his burden of proving ineffective assistance of counsel.
Ciccone appeals the district court's denial of his claim for post-conviction relief. Specifically, he argues that the district court erred in dismissing his claim that trial counsel was ineffective for failing to submit a written psychological evaluation as mitigation evidence at sentencing.2 In order to prevail in a post-conviction proceeding, the petitioner must prove the allegations by a preponderance of the evidence. I.C. § 19–4907 ; Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990). When reviewing a decision denying post-conviction relief after an evidentiary hearing, an appellate court will not disturb the lower court's factual findings unless they are clearly erroneous. I.R.C.P. 52(a) ; Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct.App.1990). The credibility of the witnesses, the weight to be given to their testimony and the inferences to be drawn from the evidence are all matters solely within the province of the district court.
Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct.App.1988). We exercise free review of the district court's application of the relevant law to the facts. Nellsch v. State, 122 Idaho 426, 434, 835 P.2d 661, 669 (Ct.App.1992).
A claim of ineffective assistance of counsel may properly be brought under the Uniform Post–Conviction Procedure Act. Murray v. State, 121 Idaho 918, 924–25, 828 P.2d 1323, 1329–30 (Ct.App.1992). To prevail on an ineffective assistance of counsel claim, the petitioner must show that (1) the attorney's performance was deficient and (2) the petitioner was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687–88, 104 S.Ct. 2052, 2064–65, 80 L.Ed.2d 674, 693–94 (1984) ; Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct.App.1995). To establish a deficiency, the petitioner has the burden of showing that the attorney's representation fell below an objective standard of reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). 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. Id. at 761, 760 P.2d at 1177. This Court has long adhered to the proposition that tactical or strategic decisions of trial counsel will not be second-guessed on appeal unless those decisions are based on inadequate preparation, ignorance of relevant law, or other shortcomings capable of objective evaluation. Howard v. State, 126 Idaho 231, 233, 880 P.2d 261, 263 (Ct.App.1994).
During the hearing, Ciccone presented testimony from himself as well as an affidavit from the psychologist that conducted Ciccone's psychological evaluation. Ciccone testified that trial counsel had originally told him an evaluation might be useful as mitigating evidence during sentencing because of Ciccone's mental health history. Ciccone also stated that counsel later changed his mind after speaking with the psychologist that performed the evaluation, advising Ciccone that the evaluation had not gone well and that publishing an official report would be unfavorable. In the affidavit, the psychologist wrote that had he prepared a formal report, it would have included the following information:
The affidavit also stated the psychologist's opinion that "a report to the Court, had one been created, would have assisted the Court in determining Mr. Ciccone's sentence and, in fact, may very well have led the Court to a sentence other than fixed life."
After Ciccone rested, trial counsel then testified that he did not obtain a written report because he thought doing so would be detrimental to Ciccone. Trial counsel indicated that he had spoken with the psychologist over the phone after Ciccone's evaluation, during which time counsel took notes. After refreshing his memory with those notes, which also included research that counsel had conducted after the phone conversation, trial counsel testified that the psychologist diagnosed Ciccone as having recurrent major depression and borderline personality disorder. Counsel testified he wrote "first wife—controlling and abusive" in his notes regarding the borderline personality disorder diagnosis. He explained that he made this notation because the same psychologist had previously done the home study in counsel's divorce and during the conversation regarding Ciccone, the psychologist told counsel, "[Ciccone is] just like your first wife." The psychologist also told counsel that Ciccone was in deep denial of his culpability. Counsel further testified that when he asked the psychologist if Ciccone was likely to kill again, the psychologist responded that he did not know because it was context specific. Trial counsel went on to state that he was concerned that if he submitted a written psychological evaluation, the State could then evaluate Ciccone's mental health using its own expert.
Regarding the deficiency prong of the Strickland test, the district court found that Ciccone failed to meet his burden of showing that counsel's decision was the result of an objective shortcoming. Instead, the court found that counsel's decision was a reasonable strategic and tactical decision. Ciccone asserts that the court erred because trial counsel's decision not to submit a written psychological evaluation was premised upon both factual and legal mistakes, and thus could not have been a reasonable tactical or strategic decision.
Ciccone first contends that counsel's decision was based upon a mistake of fact—his erroneous belief that a diagnosis of borderline personality disorder meant Ciccone is controlling and abusive. The evidence in the record indicates that although trial counsel noted the traits "controlling and abusive" as related to his wife with a similar borderline personality diagnosis, counsel also conducted his own independent research of the diagnosis. Moreover, the fact that trial counsel initially compared Ciccone to his ex-wife is not only insufficient to establish that counsel then based his strategic decision entirely on a mistaken belief that Ciccone was also controlling and abusive, but is refuted by evidence in the record that counsel also was persuaded by the psychologist's opinion that Ciccone was in deep denial of his culpability. Just as the district court concluded, it would not have been objectively unreasonable for trial counsel to surmise, based upon his verbal report from the psychologist, that a written psychological evaluation would negatively impact Ciccone's sentencing.
Ciccone next contends that counsel's decision was based upon two mistakes of law. The first alleged mistake is that the psychologist would have been required to include the borderline personality disorder diagnosis in the report. Ciccone argues that the applicable statute, I.C. 19–2522(3)(b), requires the report to include "a diagnosis, evaluation or prognosis of the mental...
To continue reading
Request your trial