Downing v. State

• Decision Date: 06 August 2001
• Docket Number: No. 26720., No. 26495
• Citation: 136 Idaho 367,33 P.3d 841
• Parties: Creston DOWNING, Petitioner-Appellant, v. STATE of Idaho, Respondent. State of Idaho, Plaintiff-Respondent, v. Creston G. Downing, Defendant-Appellant.
• Court: Idaho Court of Appeals

33 P.3d 841

136 Idaho 367

Creston DOWNING, Petitioner-Appellant, v. STATE of Idaho, Respondent.

State of Idaho, Plaintiff-Respondent, v. Creston G. Downing, Defendant-Appellant.

Nos. 26495, 26720.

Court of Appeals of Idaho.

August 6, 2001.

Review Denied October 17, 2001.

Ronaldo A. Coulter, State Appellate Public Defender; Charles Isaac Wadams, Deputy Appellate Public Defender, Boise, for appellant. Charles Isaac Wadams argued.

Alan G. Lance, Attorney General; T. Paul Krueger II, Deputy Attorney General, Boise, for respondent. T. Paul Krueger II argued.

SCHWARTZMAN, Chief Judge.

Creston Downing appeals from the district court's order summarily dismissing his application for post-conviction relief and from the sentence of fifteen years, with six years fixed, imposed upon his resentencing for lewd conduct. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts of the underlying criminal conviction are set forth in State v. Downing, 128 Idaho 149, 911 P.2d 145 (Ct.App.1996):

[Downing] was charged with lewd conduct with a minor child under sixteen, I.C. § 18-1508, based upon a report of misconduct with his daughter, E.D., who was twelve years old at the time of the offense.

E.D. testified at trial that, while she and Downing were on a camping trip in late 1991, Downing engaged in both manual-genital contact and intercourse with her. About eighteen months afterward, E.D. disclosed the incident to a school counselor, and Downing was later arrested. When interviewed by the police [prior to his arrest and the initiation of proceedings], Downing admitted that he had inserted his finger in E.D.'s vagina when he and E.D. were camping. He said, however, that he had done so at E.D.'s request to determine if she was a virgin and that the contact was not sexually motivated.

Id. at 151, 911 P.2d at 147. Downing was found guilty by a jury of lewd conduct with a minor child under sixteen. I.C. § 18-1508. Downing was sentenced to a unified term of fifteen years, with six years fixed. He appealed his judgment of conviction and sentence, and this Court affirmed. Id.

On February 14, 1997, Downing filed a timely application for post-conviction relief, alleging that he received ineffective assistance of counsel during various stages of counsel's representation, including pretrial, trial, and sentencing. Downing v. State, 132 Idaho 861, 862, 979 P.2d 1219, 1220 (Ct.App. 1999). Relevant in this case were Downing's allegations that an attorney he spoke to prior to the filing of charges in the case advised him to discuss his daughter's allegation of molestation at the sheriff's office knowing that such statements might incriminate him; that counsel failed to hire an expert to conduct a physical examination in order to challenge his daughter's allegations of intercourse; and that but for counsel's failure to request jury instructions distinguishing between manual and penile penetration, his sentence would have been shorter. The district court issued a notice of intent to dismiss and thereafter summarily dismissed Downing's application without a hearing or explanation of its reasons for doing so. Downing appealed and this Court vacated the district court's order of summary dismissal. Id. at 865, 979 P.2d at 1223.

On remand, the state filed a motion for summary dismissal and supporting brief arguing that Downing's allegations of ineffective assistance of counsel were bare and conclusory and that Downing had failed to support his application with sources of evidence that would show that counsel had been deficient and that, but for counsel's deficient performance, the result of proceedings would have been different. Following a hearing, the district court granted the state's motion for summary dismissal of Downing's pretrial and trial based allegations of ineffective assistance of counsel. Downing again appeals.

Pursuant to a stipulation regarding ineffective assistance of counsel at sentencing, Downing was resentenced. The district court imposed a unified term of fifteen years with six years fixed, the same sentence he originally received. Downing appeals this sentence as excessive.

II. POST-CONVICTION ISSUES

A. Applicable UPCPA Standards And Standard Of Review

1. Standard of review

On appeal from a summary dismissal of an application, this Court reviews the record to determine if issues of material fact exist, which require an evidentiary hearing. "The issue on appeal from a dismissal is whether the application alleges facts which, if true, would entitle the petitioner to relief." Matthews v. State, 122 Idaho 801, 807, 839 P.2d 1215, 1221 (1992). Legal conclusions are reviewed de novo. Owen v. State, 130 Idaho 715, 716, 947 P.2d 388, 389 (1997); Free v. State, 125 Idaho 760, 763, 874 P.2d 571, 574 (Ct.App.1993); Holmes v. State, 104 Idaho 312, 658 P.2d 983 (Ct.App.1983). We additionally exercise free review over the district court's determination that constitutional requirements were satisfied considering all the facts of the case. Buffington v. State, 130 Idaho 507, 509, 943 P.2d 933, 935 (1997); Gafford v. State, 127 Idaho 472, 475, 903 P.2d 61, 64 (1995).

2. Ineffective assistance of counsel

To prevail on an ineffective assistance of counsel claim, a defendant is required to show that counsel's performance was deficient and that he or she was prejudiced by that deficiency. LaBelle v. State, 130 Idaho 115, 118, 937 P.2d 427, 430 (Ct. App.1997) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). A defendant must show that counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688,104 S.Ct. at 2064-2065,80 L.Ed.2d at 693-695. There is a strong presumption that trial counsel's representation was within the "wide range of professionally competent assistance." Id. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695; Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). To establish prejudice, the defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694,104 S.Ct. at 2068,80 L.Ed.2d at 698; Wilson v. State, 133 Idaho 874, 878, 993 P.2d 1205, 1209 (Ct.App.2000).

B. Analysis

An application for post-conviction relief initiates a proceeding that is civil in nature. Hassett v. State, 127 Idaho 313, 315, 900 P.2d 221, 223 (Ct.App.1995). The district court does not have to accept an applicant's mere conclusory allegations or conclusions of law. Id. Summary dismissal by the district court is akin to summary judgment under I.R.C.P. 56. Id. at 315, 900 P.2d 221. Dismissal is proper where the evidence disproves essential elements of the applicant's assertions or where the evidence does not support relief to the applicant as a matter of law. Cooper v. State, 96 Idaho 542, 545, 531 P.2d 1187, 1190 (1975).

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 an application 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); Baruth v. Gardner, 110 Idaho 156, 159, 715 P.2d 369, 372 (Ct. App.1986).

1. Retained counsel's alleged failure to accompany Downing to, or warn Downing against, submitting to a voluntary pre-charge interview with law enforcement

On July 2, 1993, sometime after Downing's daughter alleged that Downing had molested her, but before any criminal charge was brought, Downing, accompanied by his parents, met with attorney Bert Osborn. Downing told Osborn that the incident with his daughter was "consensual" in that he was only checking to see that she was a virgin at her request. On July 9, Downing voluntarily appeared at the sheriff's office for an interview at which he then, and has thereafter, maintained that he had no lustful intent in checking to see that his daughter's hymen was intact. The criminal complaint was not filed until October 14, 1993.

In post-conviction proceedings, Downing alleged that attorney Osborn advised him to discuss the matter at the sheriff's office but did not offer to accompany Downing to the interview. Osborn testified at his deposition that he discouraged Downing from meeting with the police and advised him that he could be convicted of lewd conduct based upon the manual-genital contact alone. Regardless of the factual dispute, Downing's first allegation—that his counsel was ineffective in failing to accompany him to a pre-charge voluntary meeting with law enforcement to discuss his daughter's allegation that he had molested her—did not entitle him to relief as a matter of law.

In post-conviction proceedings Downing failed to make a showing that he had a Sixth Amendment right to counsel at the time of his pre-charge interview with law enforcement. Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (no Sixth Amendment right to counsel had attached to custodial interrogations conducted prior to the filing of formal charges, and the commencement of adversarial judicial proceedings, on the crimes subject...