Dunlap v. State

• Decision Date: 01 March 1995
• Docket Number: No. 20777,20777
• Citation: 894 P.2d 134,126 Idaho 901
• Parties: Cary K. DUNLAP, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

Page 134

894 P.2d 134

126 Idaho 901

Cary K. DUNLAP, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 20777.

Court of Appeals of Idaho.

March 1, 1995.

Petition for Review Denied May 23, 1995.

Cary K. Dunlap, pro se appellant.

Larry EchoHawk, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., Boise, for respondent.

LANSING, Judge.

Cary K. Dunlap appeals from the summary dismissal of his application for post-conviction relief. He contends that genuine issues of material fact precluded the granting of such a dismissal and that an evidentiary hearing is required to enable the district court to resolve these factual issues. With respect to one of Dunlap's claims, we agree that summary dismissal was improper. We therefore vacate the dismissal order in part and remand the case for further proceedings.

I. FACTS AND PROCEDURAL BACKGROUND

Dunlap was charged in 1988 with one count of grand theft by possession of stolen property, one count of possession of a controlled substance, one count of possession of a controlled substance with intent to deliver and one count of manufacturing a controlled substance. These charges arose out of a search of Dunlap's residence pursuant to a warrant, during which substantial amounts of marijuana and hashish and a hashish processing machine were found. In addition, the police found a box containing stolen firearms in a storage shed adjacent to the residence.

The search warrant had been issued on the basis of information provided by Cindy Crawford, who was allegedly Dunlap's common-law wife. Dunlap's attorney filed a motion to suppress all of the physical evidence seized during the search, to suppress Dunlap's statements to the police following his arrest and to preclude Crawford's testimony at trial. Dunlap's attorney also sought dismissal of all charges on the ground of insufficiency of the evidence at the preliminary hearing. The basis of these motions was that Crawford, as Dunlap's common-law wife, was incompetent to testify against him and that her testimony at the preliminary hearing violated the privilege against disclosure of confidential marital communications. For the same reason, defense counsel argued, the warrant issued on the basis of information given by Crawford was invalid, and Dunlap's statements to police were "fruit of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The district court conducted a hearing on the motions but reserved its ruling until the trial, which was set to begin several days later. Dunlap, however, absconded from the jurisdiction and failed to appear at trial. Over one year later Dunlap was returned to Idaho and, after plea negotiations, pleaded guilty to one count of grand theft by possession and one count of possession of a controlled substance with intent to deliver. The district court therefore never ruled upon Dunlap's suppression motion. Dunlap was sentenced to two concurrent terms of not less than five nor more than ten years' incarceration.

Dunlap appealed the judgment of conviction and also filed an application for postconviction relief which alleged that his sentence on the charge of possession of a controlled substance was illegal. The district court, in ruling on this first post-conviction application, granted relief and amended Dunlap's sentence for possession of a controlled substance to a term of confinement of not less than two nor more than five years. Dunlap appealed from this partial relief, and that appeal, as well as the direct appeal from Dunlap's conviction, was denied by this Court in a previous opinion, State v. Dunlap, 123 Idaho 396, 848 P.2d 454 (Ct.App.1993).

Acting pro se, Dunlap filed a second application for post-conviction relief which initiated the present action. This second application asserts numerous instances where his attorney in the criminal case allegedly rendered ineffective assistance and thereby caused Dunlap's guilty plea to be involuntary. Dunlap's second application also alleges that the attorney who represented him in filing the first post-conviction application provided ineffective assistance in that he ignored Dunlap's instruction to file a motion for withdrawal of the guilty plea and instead filed an application for post-conviction relief challenging only Dunlap's sentence.

The district court gave notice to Dunlap that the court intended to summarily dismiss his application within twenty days pursuant to I.C. § 19-4906(b). Dunlap then filed an amended application and supporting affidavits. After considering this amended application and documentation, the district court dismissed the application without an evidentiary hearing.

II. STANDARD OF REVIEW

An action for post-conviction relief is civil in nature. State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983). The burden is cast upon the applicant to prove his or her allegations by a preponderance of the evidence. I.C.R. 57(c); Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct.App.1990). Summary dismissal of an application pursuant to I.C. § 19-4906(b) is the equivalent of summary judgment under I.R.C.P. 56. Ramirez v. State, 113 Idaho 87, 89, 741 P.2d 374, 376 (Ct.App.1987). To avoid summary dismissal, the applicant must present facts showing he is entitled to relief, and this presentation must be made in the form of competent, admissible evidence, Paradis v. State, 110 Idaho 534, 536, 716 P.2d 1306, 1308 (1986); Roman v. State, 125 Idaho 644, 873 P.2d 898 (Ct.App.1994). On appeal from the summary dismissal of a post-conviction application, we examine the entire record and construe all factual allegations in favor of the applicant to determine if a genuine issue of material fact exists which, if resolved in the applicant's favor, would entitle him to the requested relief. Noel v. State, 113 Idaho 92, 94, 741 P.2d 728, 730 (Ct.App.1987). Although the applicant's uncontroverted factual allegations are assumed to be true, we do not give evidentiary value to mere conclusory allegations that are unsupported by admissible evidence. Phillips v. State, 108 Idaho 405, 407, 700 P.2d 27, 29 (1985); Roman, 125 Idaho at 647, 873 P.2d at 901.

Dunlap alleges that he received ineffective assistance of counsel during the process of determining whether to plead guilty. In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the United States Supreme Court defined the appropriate analysis for a claim of ineffective assistance of counsel following a guilty plea. First, the criminal defendant must show that his or her counsel's performance "fell below an objective standard of reasonableness." Hill, 474 U.S. at 57, 106 S.Ct. at 369. Second, the defendant must demonstrate that prejudice resulted from counsel's deficient performance by showing that, "there is a reasonable probability that but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S.Ct. at 370. The Court noted that this latter inquiry will often turn upon the likelihood that discovery of the defense or exculpatory evidence which was overlooked by counsel would have led counsel to change his recommendation as to the plea. This assessment, in turn, will largely depend upon whether the missed evidence or defense likely would have changed counsel's prediction as to the outcome of a trial. Id.

III. ANALYSIS

As a preliminary matter we must address the State's contention that the dismissal of Dunlap's application should be affirmed because this was Dunlap's second application for post-conviction relief and successive applications are not permitted. Idaho Code § 19-4908 prohibits the filing of a second application for post-conviction relief unless the applicant shows sufficient reason why the issues could not have been raised in the prior application. While the State's assertion may have merit, we will not consider this defense to Dunlap's application because it was not asserted by the State until the present appeal. Dunlap points out that because the State did not assert this defense below, he had no occasion to make a record showing "sufficient reason" why his first application did not present the claims now asserted. He therefore argues that he will be prejudiced if this Court considers the State's tardy presentation of this defense. This Court ordinarily will not address issues raised for the first time on appeal absent fundamental error or a defect in the subject matter jurisdiction of the presiding court. State v. Sharp, 101 Idaho 498, 503, 616 P.2d 1034, 1039 (1980). Accordingly, we will not consider the State's argument that this proceeding is barred by I.C. § 19-4908.

A. MOTION TO SUPPRESS EVIDENCE BASED ON WIFE'S TESTIMONY

Dunlap asserts that his counsel rendered ineffective assistance during the plea negotiation phase of his criminal case because the attorney did not inform Dunlap that motions had been filed seeking to dismiss the information, to suppress the physical evidence seized pursuant to the warrant, and to suppress Cindy Crawford's preliminary hearing testimony and her expected trial testimony. Dunlap asserts that if he had known about these motions and their alleged likelihood of success, he would not have pleaded guilty. The motions in question apparently asserted (1) that the search warrant was invalid because it was based upon information from Crawford given in violation of the marital privilege under I.R.E. 504 and in violation of I.C. § 19-3002, which specifies that the spouse of the accused is not a competent witness in a criminal proceeding; and (2) that Crawford's preliminary hearing testimony and potential trial testimony were inadmissible for the same reasons.

Dunlap's arguments require that we examine the legal and factual basis of these motions to determine the probability that the motions would have been successful. See Huck v. State, 124 Idaho 155, 158-59, 857 P.2d 634, 637-38 (Ct.App.1993). We address...