Clapp v. State
| Decision Date | 26 May 2015 |
| Docket Number | Docket No. 42258,2015 Unpublished Opinion No. 503 |
| Court | Idaho Court of Appeals |
| Parties | TYLER SHAWN CLAPP, 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THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY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 Fourth Judicial District, State of Idaho, Ada County. Hon. Michael E. Wetherell, District Judge.
Judgment of the district court summarily dismissing amended petition for post-conviction relief, affirmed.
Nevin, Benjamin, McKay & Bartlett, LLP; Dennis A. Benjamin, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.
____________________
Tyler Shawn Clapp appeals from the judgment of the district court summarily dismissing his amended petition for post-conviction relief. He argues that the district court dismissed two claims on grounds different from those asserted by the State in its motion for summary dismissal, and therefore without the required notice. He also argues that the district court erroneously dismissed one of the claims. For the reasons that follow, we affirm.
Underlying this post-conviction relief action, Clapp pled guilty to felony driving under the influence and was, at some point, on probation with a suspended sentence. After Clapp violated his probation, the trial court revoked Clapp's probation and executed a reduced sentence, granted sua sponte pursuant to Idaho Criminal Rule 35. Clapp filed his own Rule 35motion seeking further reduction of his sentence, but that motion was denied. Clapp appealed, arguing that his sentence was excessive and that the trial court should have further sua sponte reduced his sentence; this Court affirmed in State v. Clapp, Docket No. 39389 (Ct. App. Nov. 13, 2012) (per curiam) (unpublished).
Clapp then filed a pro se petition for post-conviction relief and, after counsel was appointed to represent him, filed an amended petition for post-conviction relief. The amended petition alleged five claims, including claims of ineffective assistance of defense counsel and appellate counsel. The State moved for summary dismissal, and the district court granted the State's motion. Clapp appeals.
On appeal, Clapp argues that the district court erred by summarily dismissing his amended petition for post-conviction relief. Specifically, Clapp contends that the court erred by dismissing his ineffective assistance of defense counsel claim on grounds different from those asserted by the State, and therefore without the required notice. Clapp also asserts that the court erred by dismissing his ineffective assistance of appellate counsel claim on grounds different from those asserted by the State, and therefore without the requisite notice, and further avers that this claim was erroneously dismissed.
Idaho Code section 19-4906 authorizes summary dismissal of a petition for post-conviction relief, either pursuant to motion of a party or upon the court's own initiative. Summary dismissal of a petition pursuant to I.C. § 19-4906 is the procedural equivalent of summary judgment under Idaho Rule of Civil Procedure 56. A claim for post-conviction relief will be subject to summary dismissal if the petitioner has not presented evidence making a prima facie case as to each essential element of the claims upon which the petitioner bears the burden of proof. DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary dismissal is permissible when the petitioner's evidence has raised no genuine issue of material fact that, if resolved in the petitioner's favor, would entitle the petitioner to the requested relief. If such a factual issue is presented, an evidentiary hearing must be conducted. Goodwin v. State, 138 Idaho 269, 272, 61 P.3d 626, 629 (Ct. App. 2002). Summary dismissal of a petition for post-conviction relief may be appropriate, however, even where the State does not controvert the petitioner's evidence because the court is not required to accept either the petitioner's mereconclusory allegations, unsupported by admissible evidence, or the petitioner's conclusions of law. Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994); Baruth v. Gardner, 110 Idaho 156, 159, 715 P.2d 369, 372 (Ct. App. 1986).
Where the State has filed a motion for summary disposition, but the court dismisses the petition on grounds different from those asserted in the State's motion, it does so on its own initiative and the court must provide twenty days' notice. Saykhamchone v. State, 127 Idaho 319, 322, 900 P.2d 795, 798 (1995). If the district court dismisses on grounds not contained in the State's motion, the petitioner has no opportunity to respond and attempt to establish a material issue of fact. See Baxter v. State, 149 Idaho 859, 865, 243 P.3d 675, 681 (Ct. App. 2010).
In his amended petition, Clapp argued that defense counsel failed to properly investigate and obtain mental health treatment records and an updated mental health evaluation, prior to the disposition hearing. The State's memorandum in support of its motion for summary dismissal asserted that Clapp's claim "that his counsel was ineffective in not obtaining or investigating medical record[s] requested by [Clapp]" was disproven by the trial record. Further, the State articulated that Clapp agreed to use a prior mental health evaluation at the probation revocation hearing. The district court dismissed this claim after reviewing the underlying trial record, determining that "Clapp waived his right to an updated [pre-sentence investigation report] in open court after consultation with his attorney" and noting that "prior to [the disposition hearing], the Court had all the information Mr. Clapp felt was necessary to make the existing pre-sentence material complete."
On appeal, Clapp argues that the grounds asserted by the district court were different than those offered by the State for dismissing the portion of the claim relating to defense counsel's alleged failure to obtain mental health treatment records.1 The State argues that the district court dismissed the claim based on the reasoning asserted by the State below, namely that the trial record disproved the claim.
Initially, we note that because there was one claim (asserting different theories or means of ineffective assistance), the district court's dismissal of the claim based in part on the grounds asserted by the State satisfies the notice requirement. See Kelly v. State, 149 Idaho 517, 523, 236 P.3d 1277, 1283 (2010). ("When a trial court summarily dismisses an application for post-conviction relief based in part on the arguments presented by the State, this is sufficient to meet the notice requirements."). Even so, the district court dismissed the portion of the claim concerning the alleged failure to obtain mental health treatment records after reviewing the trial record; it noted that Clapp had informed the trial court at the probation revocation hearing of his mental health treatment and progress in reducing his alcohol consumption, which the district court understood to be the "information these records would have conveyed." Effectively, the district court adopted the State's reasoning, although it expounded upon why the trial record disproved the allegation that defense counsel was ineffective in not obtaining Clapp's mental health treatment records. Therefore, Clapp was provided the requisite notice.
Clapp also contended in his amended petition that appellate counsel provided ineffective assistance. Specifically, Clapp averred that he "informed appellate counsel that he wished to challenge the court's reliance upon [unreliable evidence]" and asserted that he "asked appellate counsel to challenge the sentence on due process grounds and for a challenge to the denial of his Rule 35 motion," but that appellate counsel did not raise these issues on appeal. The State's memorandum in support of its motion for summary dismissal argued that the claim was bare and conclusory without any showing of prejudice and without evidence to support the assertions. The district court dismissed the claim, assuming that Clapp requested appellate counsel to raise the issues, but finding that "no prejudice has been, or could be, shown as a result of these issues being forfeited."
On appeal, Clapp maintains that the district court dismissed the claim on grounds different from those asserted by the State. However, the district court's order adopted the State's argument concerning the lack of prejudice, although the district court expanded upon why prejudice had not been shown. For example, the district court explained that it found the alleged unreliable evidence credible and determined there was substantial evidence of the conduct at issue and asserted that it could rely on this evidence. Thus, the ineffective assistance of appellatecounsel claim was dismissed upon the grounds asserted by the State, and Clapp received the requisite notice.
Clapp also argues on appeal that the State was not entitled to judgment as a matter of law and that there was a genuine issue of material fact for his claim. As this Court explained in Mintun v. State, 144 Idaho 656, 661, 168 P.3d 40, 45 (Ct. App. 2007), a post-conviction petitioner's ineffective assistance of appellate counsel claim is subject to the standard set forth in Strickland v. Washington, 466 U.S. 668, 687-88 (1984). That is, a petitioner must demonstrate that appellate counsel provided deficient performance and show that he was prejudiced by the deficient performance. See Mintun, 144 Idaho at 661, 168 P.3d at 45. Where counsel files an appeal but fails to raise a particular issue, it is difficult to show deficient performance. Smith v. Robbins, 528 U.S. 259, 288 (2000). To overcome the presumption of competent...
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