Cunningham v. State, 17812

• Citation: 117 Idaho 428,788 P.2d 243
• Decision Date: 05 March 1990
• Docket Number: No. 17812,17812
• Parties: Wayne Lee CUNNINGHAM, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Court of Appeals of Idaho

Page 243

788 P.2d 243

117 Idaho 428

Wayne Lee CUNNINGHAM, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 17812.

Court of Appeals of Idaho.

March 5, 1990.

Alan E. Trimming, Ada County Public Defender, Timothy L. Hansen, Deputy Public Defender (argued), Boise, for petitioner-appellant.

Jim Jones, Atty. Gen., James E. Leuenberger, Deputy Atty. Gen. (argued), Boise, for respondent.

WALTERS, Chief Judge.

Wayne Cunningham was convicted in the district court for Ada County of aggravated assault involving the use of a firearm. His conviction was affirmed on appeal. State v. Metzgar, 109 Idaho 732, 710 P.2d 642 (Ct.App.1985) (review denied). ¹ In this appeal, he challenges the district court's denial of his application for post-conviction relief. He argues that the trial judge impermissibly utilized an uncertified copy of his criminal record while imposing sentence, and that he was denied effective assistance of counsel at trial. We affirm the district court's order denying Cunningham's application.

The essential facts of this case are as follows. Late one evening the victim, Diona Paden, and her roommate were hitchhiking on a busy street in Boise. A driver stopped and asked the couple if they wanted a ride. Paden and her companion entered the vehicle. Shortly thereafter the driver stopped the vehicle and pointed a pistol at the couple and told them to undress. After Paden had removed several articles of clothing the driver allegedly touched her chest. The driver then told the passengers to dress and handed the gun to Paden's roommate to put under the backseat of the vehicle.

Approximately one month later, Paden recognized the driver-assailant while in a Boise bar. Paden was informed by a bar patron that the man's nickname was "Scooter." Paden then notified police that the man identified as Scooter--Cunningham--was the person who earlier had assaulted her.

At his trial, Cunningham's attorney relied upon an alibi defense, and also showed inconsistencies between Paden's pretrial statements about the assault incident and her testimony at trial. Nonetheless, the jury found Cunningham guilty.

After his appeal on the merits of the conviction was unsuccessful, Cunningham applied for post-conviction relief, alleging that his trial attorney had not provided him with effective assistance of counsel and that the trial judge had abused her discretion during the sentencing hearing by considering an FBI case history, or "rap sheet," of Cunningham's past convictions. After denying the parties' cross-motions for summary judgment, the district court held an evidentiary hearing to consider the merits of Cunningham's claims. His application was subsequently denied. When the forty-two day period for filing an appeal had expired, Cunningham--represented by new counsel--filed a motion for relief from the district court's order, alleging that neither he nor his newly appointed attorney had received a copy of the court's final order denying his application. ² The district court granted Cunningham's motion and reissued its order so that he could file a timely appeal.

I

As a preliminary matter, the state argues that this Court lacks jurisdiction to consider Cunningham's appeal because a district judge has no authority to reissue an appealable judgment or order simply for the purpose of permitting him to file a timely appeal. Although this is true as a general proposition, see Spreader Specialists, Inc. v. Monroc, Inc., 114 Idaho 15, 752 P.2d 617 (Ct.App.1988), the argument is inapposite to this case.

Idaho Rule of Civil Procedure 77(d) states:

Lack of notice of entry of an order or judgment does not affect the time to appeal or to file a post-judgment motion, or relieve or authorize the court to relieve a party for failure to appeal or file a post-trial motion within the time allowed, except where there is no showing of mailing by the clerk in the court records and the party affected thereby had no actual notice. [Emphasis added.]

In Herrett v. Herrett, 105 Idaho 358, 360, 670 P.2d 63, 65 (Ct.App.1983), we held that when the original time for appeal expires before an appellant receives actual notice of a judgment, the time for appeal begins to run anew from the date the appellant actually receives such notice. In this case, the district court conducted a hearing and was informed by Cunningham's attorney that neither he nor Cunningham had received a copy of the order before expiration of the forty-two day time limit. Although the order contained a notation of "copies" for Cunningham and the attorney, the record shows no statement that such a mailing was ever made. Furthermore, Cunningham's attorney informed the court that as soon as he discovered that the original order had been entered, he promptly filed a motion for relief from that order. These assertions were unchallenged by the prosecutor at the hearing. As a result, we must presume that the prosecutor acquiesced in the facts presented by Cunningham's attorney. Under these circumstances, we conclude that there was sufficient evidence for the judge to determine that Cunningham had not received actual notice of the order at any time before expiration of the appeal period. It was therefore within the judge's discretion to reissue her order, permitting Cunningham the right to file his appeal. See State v. Dillard, 110 Idaho 834, 718 P.2d 1272 (Ct.App.1986) (review denied) (judgment re-entered when attorney did not honor defendant's request for appeal).

II

We now reach the merits of Cunningham's appeal. Preliminarily, we note our standard of review. A request for post-conviction relief is a special proceeding that is civil in nature. Paradis v. State, 110 Idaho 534, 716 P.2d 1306 (1986). To prevail, the petitioner must prove, by a preponderance of the evidence, the allegations upon which his or her application is based. Pierce v. State, 109 Idaho 1018, 712 P.2d 719 (Ct.App.1985). On appeal, the trial court's finding that the petitioner has not met his burden of proof is entitled to great weight; we will not disturb such a finding unless it is clearly erroneous. Larkin v. State, 115 Idaho 72, 764 P.2d 439 (Ct.App.1988); I.R.C.P. 52(a).

A

Cunningham first contends that the district judge improperly used a rap sheet of Cunningham's prior offenses in setting his sentence. See I.C.R. 32(b)(2). Cunningham asserts that the rap sheet, appended to his presentence investigation (PSI) report, contained incomplete information concerning his past offenses and that the report was not subject to independent verification. Cunningham submits that, as a matter of policy, any report of his prior criminal convictions used for the purpose of sentencing should be based only upon certified copies of prior judgments of conviction.

Generally, a sentencing court is free to consider the results of a presentence investigation if the reliability of the information contained in the report is insured by the defendant's opportunity to present favorable evidence, to examine all the materials contained in the presentence report and to explain or rebut adverse evidence. See State v. Creech, 105 Idaho 362, 368, 670 P.2d 463, 469 (1983). As a predicate to this protection, the defendant bears the burden of raising objections to the report at the time of his sentencing; where no objection is made and the report substantially meets the requirements of I.C.R. 32, we will not review a challenge to its contents on appeal. Volker v. State, 107 Idaho 1059, 695 P.2d 809 (Ct.App.1985); see also State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct.App.1982).

In this case, the record reveals that Cunningham failed to raise any objection to the contents of the PSI report at his sentencing hearing, nor did he raise this as an issue in the direct appeal of his conviction and sentence. See State v. Metzgar, supra. Furthermore, contrary to Cunningham's assertion, we do not find in I.C.R. 32 any express requirement that the summary of a defendant's criminal record contained in his or her PSI report be certified; ample protection against inaccuracies in the report is provided by the defendant's opportunity to test the reliability of the information at the time of sentencing. See State v. Creech, supra. Here, Cunningham did not take advantage of this safeguard. We therefore conclude that, under the circumstances existing in this case, Cunningham may not belatedly raise the reliability of the contents of the PSI report as an issue in his post-conviction relief application. ³ Volker, supra.

B

Finally, we address Cunningham's claim that his trial attorney did not render effective assistance of counsel. Cunningham contends that his attorney's failure to investigate potentially exculpatory evidence prior to trial and his attorney's failure to adequately cross-examine Paden compromised his entitlement to competent representation in the trial proceedings. To prevail on his claims, Cunningham was required to show that his trial attorney's performance was deficient, and then to demonstrate, by a preponderance of the evidence, that he was prejudiced by his attorney's deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Davis v. State, 116 Idaho 401, 775 P.2d 1243 (Ct.App.1989). To establish a deficiency, the applicant has the burden of showing that his attorney's representation fell below an objective standard of reasonableness. State v. Aragon, 114 Idaho 758, 760 P.2d 1174 (1988). To establish prejudice, the applicant must show a reasonable probability that, but for his attorney's deficient performance, the outcome of his trial would have been different. Id. Furthermore, strategic or tactical decisions made by trial counsel will not be second-guessed on review unless those decisions are made upon a basis of inadequate preparation, ignorance of the relevant law, or other shortcomings capable of objective evaluation. State v. Larkin, 102 Idaho 231, 628 P.2d 1065 (1981).

Cunningham first...