Cootz v. State

• Citation: 924 P.2d 622,129 Idaho 360
• Decision Date: 27 August 1996
• Docket Number: No. 20321,20321
• Parties: Anthony G. COOTZ, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Court of Appeals of Idaho

Page 622

924 P.2d 622

129 Idaho 360

Anthony G. COOTZ, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 20321.

Court of Appeals of Idaho.

Aug. 27, 1996.

Petition for Review Denied Oct. 28, 1996.

Robert R. Chastain, Boise, for appellant.

Hon. Alan G. Lance, Attorney General; John C. McKinney (argued), Deputy Attorney General, Boise, for respondent.

PERRY, Judge.

This appeal stems from the denial of post-conviction relief requested by Anthony G. Cootz, in relation to his 1982 conviction for robbery, aggravated battery, and possession of a firearm during the commission of these crimes. The district court summarily dismissed the application, and Cootz appeals. We affirm.

I. BACKGROUND

The facts of the crimes are as follows:

On the evening of August 26, 1982, the Boisean Motel was robbed at gunpoint. Cash, including a $100 bill, was taken and the robber fled on foot. Just before the robbery, the manager of the motel observed a white sedan parked around back at a spot not normally used by the public or motel patrons. This car was gone shortly after the robbery. Gary Fost, an intern-officer candidate with the Boise Police Department, was on routine patrol in the vicinity. He observed a white sedan speed past him in the opposite direction. Fost turned around and followed, intending to cite the driver for speeding. The white sedan led Fost into a residential area where it came to a stop. The driver fled on foot. Fost gave chase. The suspect went over a fence. When Fost peered over the fence he was hit in the face by bird-shot fired from a pistol. The suspect returned to his car and drove away.

The next morning, Jim Davis, Cootz's father-in-law, contacted the authorities. He told investigators that Cootz came to the Davis residence on the evening of the robbery, appeared excited and wanted to talk to his wife, who was then living with her parents. Davis said he and his wife overheard Cootz tell their daughter he was in trouble and had shot a policeman. Cootz finally left; but not before trying to give his wife some money and giving her and Mrs. Davis guns, ammunition, clothing and makeup to hide.

State v. Cootz, 110 Idaho 807, 809, 718 P.2d 1245, 1247 (Ct.App.1986). This Court affirmed the judgments of conviction and sentences. Id. In June 1990, Cootz filed a pro se application for post-conviction relief, which was dismissed after Cootz failed to respond to the district court's notice of its intent to dismiss. The dismissal order was vacated, and counsel was appointed to represent Cootz in the post-conviction proceedings. Cootz submitted an amended application, which was summarily dismissed on April 14, 1992. Cootz then filed a motion to reconsider, which was denied on October 1, 1992. From these 1992 orders, Cootz appealed.

Pursuant to an order of the Idaho Supreme Court temporarily suspending the appeal, Cootz was allowed to file a second amended application for post-conviction relief in the district court, which was prepared by newly appointed counsel. The state submitted a response to the application, and a summary dismissal hearing was held. On November 1, 1994, the district court issued its memorandum decision and order denying relief on the post-conviction application, except to grant credit for time served. This order reiterated all of the district court's rulings and rationales of the earlier dismissal orders in the post-conviction proceedings. Cootz's appeal, therefore, is from the order of the district court denying his second amended application for post-conviction relief without an evidentiary hearing.

II. STANDARD OF REVIEW

An application for post-conviction relief initiates a proceeding which is civil in nature. State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct.App.1992). Summary dismissal of an application pursuant to Idaho Code Section 19-4906 is the procedural equivalent of summary judgment under I.R.C.P. 56. Like a plaintiff in a civil action, the applicant must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. I.C. § 19-4907; Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct.App.1990). An application for post-conviction relief differs from a complaint in an ordinary civil action, however, for an application must contain much more than "a short and plain statement of the claim" that would suffice for a complaint under I.R.C.P. 8(a)(1). Rather, an application for post-conviction relief must be verified with respect to facts within the personal knowledge of the applicant, and affidavits, records or other evidence supporting its allegations must be attached, or the application must state why such supporting evidence is not included with the petition. I.C. § 19-4903. In other words, the application must present or be accompanied by admissible evidence supporting its allegations, or the application will be subject to dismissal.

Idaho Code Section 19-4906 authorizes summary disposition of an application for post-conviction relief, either pursuant to motion of a party or upon the court's own initiative. Summary dismissal is permissible only when the applicant's evidence has raised no genuine issue of material fact which, if resolved in the applicant's favor, would entitle the applicant to the requested relief. If such a factual issue is presented, an evidentiary hearing must be conducted. Gonzales v. State, 120 Idaho 759, 763, 819 P.2d 1159, 1163 (Ct.App.1991); Hoover v. State, 114 Idaho 145, 146, 754 P.2d 458, 459 (Ct.App.1988); Ramirez v. State, 113 Idaho 87, 89, 741 P.2d 374, 376 (Ct.App.1987). Summary dismissal of a petition for post-conviction relief may be appropriate, however, even where the state does not controvert the applicant's evidence, because the court is not required to accept either the applicant's mere conclusory allegations, unsupported by admissible evidence, or the applicant's conclusions of law. Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct.App.1994); Hays v. State, 113 Idaho 736, 739, 747 P.2d 758, 761 (Ct.App.1987); Baruth v. Gardner, 110 Idaho 156, 159, 715 P.2d 369, 372 (Ct.App.1986).

On review of a dismissal of a post-conviction application without an evidentiary hearing, we will determine whether a genuine issue of fact exists based on the pleadings, depositions and admissions together with any affidavits on file; moreover, the court will liberally construe the facts and reasonable inferences in favor of the non-moving party. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct.App.1993).

III. DISCUSSION

A. Denial of Due Process

Cootz first contends that he suffered a denial of his due process rights because the charging information in his case failed to give him proper notice that the state was seeking an enhancement for use of a firearm on both the robbery and aggravated battery charges. He argues that Count III of the information does not, under Idaho Code § 19-2520, convey fair notice of the state's intent to seek four sentences rather than one sentence for each of the three counts charged in the information. He also asserts that jury instructions 9, 10, and 25 misled him to believe that only one sentence enhancement was being sought. However, the sufficiency of the information and the correctness of the jury instructions are issues which could have been raised on direct appeal, but were not, and are, therefore, forfeited and not to be considered in post-conviction proceedings. I.C. § 19-4901. The issues should have been raised in conjunction with the claims of excessive sentence and double punishment which were before this Court in the direct appeal.

Also with regard to Count III of the information, Cootz argues that his counsel rendered ineffective assistance by failing to recognize the penalty enhancement issue and seek clarification as to which crime the enhancement would be applied. Cootz alleges that counsel failed to challenge the sufficiency of the pleading and, as a result, was unprepared to offer testimony from Cootz that a different gun was used in each of the two alleged crimes and that only one gun was operable.

Count I of the information charged Cootz with robbery with the use of a pistol. Count II charged Cootz with aggravated battery with the use of a deadly weapon. Count III of the information read as follows:

That the said defendant, Gerald R.A. Cootz, on or about the 26th day of August, 1980, in the County of Ada, State of Idaho, did carry and use a firearm, to wit: a pistol, during the commission of the crimes alleged in Count I and Count II.

Idaho Code Section 19-2520 provides for an extended sentence for the use of a firearm or deadly weapon in the commission of certain enumerated crimes, including robbery and aggravated battery. The statute does not define a separate substantive offense, but is merely a sentence-enhancing statute that comes into play after a defendant is convicted of one of the enumerated offenses. State v. Galaviz, 104 Idaho 328, 329-30, 658 P.2d 999, 1000-01 (Ct.App.1983), citing State v. Cardona, 102 Idaho 668, 670, 637 P.2d 1164, 1166 (1981). Until the statute was amended in 1983, it was not necessary to allege in a separate count in the information that the defendant used a firearm. State v. Baruth, 107 Idaho 651, 659, 691 P.2d 1266, 1274 (Ct.App.1984). An information charging two robberies in two counts which set forth the essential facts of the crimes, including the defendant's use of a firearm in the commission of those crimes, was sufficient to invoke I.C. § 19-2520. Id., citing Galaviz, 104 Idaho at 330, 658 P.2d at 1001.

The district court concluded that Count III gave adequate notice to Cootz that an enhancement of the sentence would be sought upon a verdict of guilty on one or both counts. We agree that, as a matter of law, the notice met the pre-1983 pleading standards...