Ellis v. State, Docket No. 35461 (Idaho App. 9/16/2009)
| Decision Date | 16 September 2009 |
| Docket Number | Docket No. 35461. |
| Parties | WILLIAM ELLIS, Petitioner-Appellant, v. STATE OF IDAHO, Respondent. |
| Court | Idaho Court of Appeals |
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. Randy J. Stoker, District Judge.
Order summarily dismissing application for post-conviction relief, affirmed.
Nevin, Benjamin, McKay & Bartlett; Dennis A. Benjamin, Boise, for appellant. Dennis A. Benjamin argued.
Hon. Lawrence G. Wasden, Attorney General; Rebekah A. Cudé, Deputy Attorney General, Boise, for respondent. Rebekah A. Cudé argued.
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
William Ellis appeals from the summary dismissal of his application for post-conviction relief. We affirm.
Pursuant to a plea agreement, Ellis entered a guilty plea to one count of lewd conduct with a minor under the age of sixteen in exchange for the state's dismissal of a second count of lewd conduct and an agreement not to file any other charges against Ellis for the known abuse of other victims. Ellis further agreed to pay restitution and obtain a psychosexual evaluation prior to sentencing. The state's sentencing recommendation remained open until after the psychosexual evaluation was complete. Ellis completed a felony guilty plea questionnaire acknowledging that his attorney had explained his constitutional rights and the consequences of his guilty plea. After reviewing the presentence investigation report and the psychosexual evaluation, the district court sentenced Ellis to a term of fifteen years determinate. This Court affirmed Ellis' sentence and the denial of his Idaho Criminal Rule 35 motion on direct appeal. State v. Ellis, Docket No. 33633 (June 14, 2007) (unpublished).
Ellis filed a petition for post-conviction relief, alleging claims of ineffective assistance of counsel and claims of due process violations. The state moved for summary dismissal of all claims, and the district court filed a notice of intent to dismiss based on the state's reasons. Following Ellis' response with supplemental briefing, the district court granted the state's motion for summary dismissal and this appeal followed. Of the claims raised in Ellis' petition, he challenges only the summary dismissal of his claim that counsel was ineffective by failing to advise him of his constitutional rights relating to the psychosexual evaluation.
An application for post-conviction relief initiates a proceeding that is civil in nature. State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct. App. 1992). As with 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. An application must contain much more than "a short and plain statement of the claim" that would suffice for a complaint under Idaho Rule of Civil Procedure 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 application. 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 of an application pursuant to I.C. § 19-4906 is the procedural equivalent of summary judgment under I.R.C.P. 56. 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).
A claim of ineffective assistance of counsel may properly be brought under the post-conviction procedure act. Murray, 121 Idaho at 924-25, 828 P.2d at 1329-30. To prevail on an ineffective assistance of counsel claim, the defendant must show that the attorney's performance was deficient, and that the defendant was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct. App. 1995). To establish a deficiency, the applicant has the burden of showing that the attorney's representation fell below an objective standard of reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). To establish prejudice, the applicant must show a reasonable probability that, but for the attorney's deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 694.
On review of a dismissal of a post-conviction relief application without an evidentiary hearing, we determine whether a genuine issue of material fact exists based on the pleadings, depositions, and admissions together with any affidavits on file. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct. App. 1993). For purposes of considering a summary dismissal motion, an applicant's uncontroverted factual allegations contained in an application for post-conviction relief and supporting affidavits are assumed to be true. Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). However, because the trial court rather than a jury will be the trier of fact in the event of an evidentiary hearing, summary disposition is permissible, despite the possibility of conflicting inferences to be drawn from the facts, for the court alone will be responsible for resolving the conflict between those inferences. State v. Yakovac, 145 Idaho 437, 180 P.3d 476 (2008); Hayes, 146 Idaho at 355, 195 P.3d at 714. That is, the judge in a post-conviction action is not constrained to draw inferences in favor of the party opposing the motion for summary disposition but rather is free to arrive at the most probable inferences to be drawn from uncontroverted evidentiary facts. Id.
Ellis contends that the district court erred by dismissing his post-conviction petition without an evidentiary hearing. Specifically, he claims there are genuine issues of material fact as to whether his attorney was ineffective for failing to advise him of his right to remain silent during the psychosexual evaluation and the consequences of waiving that right.
Ellis contends that the attorney never explained his Fifth Amendment rights as they related to a psychosexual evaluation, in direct violation of Estrada v. State, 143 Idaho 558, 562-63, 149 P.3d 833, 837-38 (2006). In Estrada, the Idaho Supreme Court declared that a defendant has the Sixth Amendment right to counsel in deciding whether to submit to a psychosexual evaluation. Id. at 562-63, 149 P.3d at 837-38. The Sixth Amendment right to counsel is the right to effective assistance of counsel. Id. at 562, 149 P.3d at 837; State v. Doe, 136 Idaho 427, 433, 34 P.3d 1110, 1116 (Ct. App. 2001); Beasley v. State, 126 Idaho 356, 360, 883 P.2d 714, 718 (Ct. App. 1994). The Court also concluded that a defendant's Fifth Amendment right against self-incrimination applies during a psychosexual evaluation. Estrada, 143 Idaho at 563, 149 P.3d at 838. Therefore, an attorney's failure to discuss the right to remain silent and the consequences of waiving that right with a client could be deficient performance. Assuming, as we must, that Ellis' assertion is true, and his attorney did not advise him about his Fifth Amendment rights prior to submitting to the psychosexual evaluation, we must determine whether Ellis was prejudiced by this deficiency.
The waiver of a fundamental right is generally considered valid when it is given knowingly, voluntarily and intelligently. Our case law has focused on the waivers involved with guilty pleas and Miranda1 warnings. In either circumstance, a waiver is voluntary, knowing and1 intelligent when it is given without coercion, with knowledge of the right or rights involved and with full awareness of the consequences of relinquishing those rights. See State v. Colyer, 98 Idaho 32, 34, 557 P.2d 626, 628 (1976); State v. Nguyen, 122 Idaho 151, 153-54, 832 P.2d 324, 326-27 (Ct. App. 1992). A valid waiver will not be presumed from a silent record, Colyer, 98 Idaho at 33-34, 557 P.2d at 627-28, but must be demonstrated by all the relevant circumstances contained in the record. State v. Carrasco, 117 Idaho 295, 298, 787 P.2d 281, 284 (1990); State v. Mitchell, 104 Idaho 493, 498, 660 P.2d 1336, 1341 (1983); State v. Dunlap, 123 Idaho 396, 398, 848 P.2d 454, 456 (Ct. App. 1993). On appeal, the reviewing court can make reasonable inferences from the record. State v. Sabin, 120 Idaho 780, 781, 820 P.2d 375, 376 (Ct. App. 1991); see also Colyer...
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