Eby v. State

• Decision Date: 28 March 2013
• Docket Number: 2013 Unpublished Opinion No. 418,Docket No. 39301
• Parties: DANIEL L. EBY, Petitioner-Appellant, v. STATE OF IDAHO, Respondent.
• Court: Idaho Court of Appeals

DANIEL L. EBY, Petitioner-Appellant,

v.STATE OF IDAHO, Respondent.

Docket No. 39301

2013 Unpublished Opinion No. 418

COURT OF APPEALS OF THE STATE OF IDAHO

Filed: March 28, 2013

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the First Judicial District, State of Idaho,

Kootenai County. Hon. John P. Luster, District Judge.

Order dismissing petition for post-conviction relief, affirmed.

Daniel L. Eby, Boise, pro se appellant.

Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney General, Boise, for respondent.

GRATTON, Judge

Daniel L. Eby appeals from the district court's order denying his petition for post-conviction relief after an evidentiary hearing.

I.FACTUAL AND PROCEDURAL BACKGROUND

This Court described the underlying facts of the criminal case in State v. Eby, 136 Idaho 534, 37 P.3d 625 (Ct. App. 2001):

According to the State's evidence, the victim, Mel Evenson, was murdered late in the night of March 25 or early the next morning. On that night, Daniel Eby, Jeremy Schmitz, Cliff Hicks and Evenson were working on cars in a garage belonging to Gerald Smith. Inside the adjacent residence were Smith and several other individuals. While in the garage, Evenson was repeatedly struck in the head with a baseball bat and with a large wrench. His clothing was removed and was then burned in a wood stove in the garage. Evenson's body was wrapped in a tarp and placed in the bed of his own truck. The body was then covered with flattened cardboard boxes, and the truck was abandoned in the countryside.

Approximately one month later, law enforcement officers found Evenson's body. An autopsy revealed that he had died of multiple cranial cerebral injuries due to blunt force impacts to his head. Further investigation led law enforcement officers to the garage where they discovered blood on the wood stove and on a motorcycle. Persons who had been present at Gerald Smith's residence on the night of Evenson's death were questioned by police. Ultimately, Eby was charged with first degree murder, conspiracy to commit robbery and attempted robbery. It was the prosecution's theory that, on the evening in question, Eby, Schmitz and Hicks believed that Evenson was carrying a substantial amount of narcotics and cash because he had just returned from an out-of-town drug transaction, and the three decided to kill Evenson in order to steal his money and drugs. A jury found Eby guilty of all of the charges. The district court imposed a unified life sentence with a twenty-five-year minimum term of imprisonment for first degree murder, and determinate fifteen-year sentences for attempted robbery and conspiracy to commit robbery, with the sentences to be served concurrently.

Eby, 136 Idaho at 536, 37 P.3d at 627. This Court affirmed Eby's convictions for first degree murder and conspiracy to commit robbery, but reversed Eby's conviction for attempted robbery because that offense merged with the conviction for first degree murder under the felony murder theory. Id. at 540-41, 37 P.3d at 631-32.

Eby timely filed a pro se petition for post-conviction relief with the district court. The district court appointed post-conviction counsel. Over the next several years, Eby's various appointed attorneys failed to amend his petition or otherwise advance his claims. The district court dismissed the petition for inactivity. The district court later denied Eby's Idaho Rule of Civil Procedure 60(b) motion for relief from the dismissal order, concluding that I.R.C.P. 60(b) does not apply to I.R.C.P. 40(c) dismissals for inactivity.

Eby appealed, and the Idaho Supreme Court reversed, holding that I.R.C.P. 60(b) does apply, in rare instances, to I.R.C.P. 40(c) dismissals. Eby v. State, 148 Idaho 731, 732, 228 P.3d 998, 999 (2010). The Court remanded the case for consideration of whether the facts presented by Eby constituted grounds for relief in this case. Id. at 734-38, 228 P.3d at 1001-05. On remand, the district court withdrew its previously entered dismissal of Eby's post-conviction petition.

Through new appointed counsel, Eby filed a post-conviction petition, with a supporting affidavit, raising three claims: (1) he was denied his constitutional right to counsel, free from any conflict; (2) there were material facts not previously presented and heard in violation of Idaho Code § 19-4901(a)(4); and (3) his trial counsel was ineffective for failing to adequatelycommunicate with him, failing to advise him of his rights, failing to adequately prepare for trial, and for preventing Eby from testifying on his own behalf. The district court took judicial notice of the underlying criminal case file, ordered an evidentiary hearing, and received briefing from both parties. The district court denied Eby's petition for post-conviction relief. Eby timely appealed.

II.ANALYSIS

In order to prevail in a post-conviction proceeding, the applicant must prove the allegations by a preponderance of the evidence. I.C. § 19-4907; Stuart v. State, 118 Idaho 865, 801 P.2d 1216 (1990). When reviewing a decision denying post-conviction relief after an evidentiary hearing, an appellate court will not disturb the lower court's factual findings unless they are clearly erroneous. I.R.C.P. 52(a); Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence are all matters solely within the province of the district court. Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We exercise free review of the district court's application of the relevant law to the facts. Nellsch v. State, 122 Idaho 426, 434, 835 P.2d 661, 669 (Ct. App. 1992).

A. Conflict of Interest

The Sixth Amendment to the United States Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defence."¹ U.S. CONST. amend. VI. The amendment has been interpreted to include the right to be represented by conflict-free counsel. Wood v. Georgia, 450 U.S. 261, 271 (1981). In order to ensure that a defendant receives conflict-free counsel, a trial court has an affirmative duty to inquire into a potential conflict whenever it knows or "reasonably should know that a particular conflict may exist." State v. Lovelace, 140 Idaho 53, 60, 90 P.3d 278, 285 (2003); see also Cuyler v. Sullivan, 446 U.S. 335, 347 (1980). A trial court's failure to conduct an inquiry, undercertain circumstances, will serve as a basis for reversing a defendant's conviction. See Cuyler, 446 U.S. at 346-47; Holloway v. Arkansas, 435 U.S. 475, 488 (1978).

The district court's inquiry into the potential conflict of interest stemming from the Kootenai County Public Defender's Office representing both Eby and his co-defendant satisfied its constitutional obligation. The district court held a hearing on the record in the criminal case and gave both sides the opportunity to address the potential conflict. Because the district court conducted an adequate inquiry into the conflict, Eby is not entitled to automatic reversal of his conviction. The issue remains, however, as to whether the district court correctly determined that an actual conflict did not exist and Eby was not prejudiced.

To determine whether an actual conflict of interest exists, Idaho courts look to the standards set forth in the Idaho Rules of Professional Conduct. See, e.g., State v. Wood, 132 Idaho 88, 98, 967 P.2d 702, 712 (1998). Idaho Rule of Professional Conduct 1.7 addresses conflicts of interest and, in 1999, provided that "A lawyer shall not represent a client if the representation of that client will be directly adverse to another client." I.R.P.C. 1.7(a). Rule 1.7 goes on to further provide that: "A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests." I.R.P.C. 1.7(b). Representation may continue despite a concurrent conflict of interest when, among other things, a client waives the conflict through informed consent. I.R.P.C. 1.7(a)(2), (b)(2).

Under I.R.P.C. 1.10, a lawyer's conflict of interest is imputed to his or her entire firm. The rule, as it existed in 1999, provided: "While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7, 1.8(c), 1.9 or 2.2." The rules define the term "firm" as "lawyers in a private firm, and lawyers in the legal department of a corporation or other organization." I.R.P.C. 1.10 cmt. (effective through June 30, 2004) (Definition of "Firm"). The comments to the rule further stated:

[Q]uestions can also arise with respect to lawyers in legal aid. Lawyers employed in the same unit of a legal service organization constitute a firm, but not necessarily those employed in separate units. As in the case of independent practitioners, whether the lawyers should be treated as associated with each other can depend on the particular rule that is involved, and on the specific facts of the situation.

Id.

This Court addressed a similar argument regarding a public defender's office in State v. Cook, 144 Idaho 784, 171 P.3d 1282 (Ct. App. 2007). In Cook, this Court drew a distinction between private law firms and public defenders' offices and declined to impute one public defender's conflict to the entire office. Id. at 794, 171 P.3d at 1292. In its decision, the Court refused to adopt a per se rule regarding the treatment of public defenders' offices under the rules.² Id. Instead, it decided that it was preferable to analyze whether one public defender's conflict should be imputed to the entire office on a case-by-case basis. Id. Under this approach, the relevant inquiry is "whether 'the...