Estrada v. State, Docket No. 30821 (ID 10/4/2005)
| Decision Date | 04 October 2005 |
| Docket Number | Docket No. 30821. |
| Parties | KRISPEN ESTRADA, Petitioner-Appellant, v. STATE OF IDAHO, Respondent. |
| Court | Idaho Supreme Court |
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. G. Richard Bevan, District Judge.
Order denying petition for post-conviction relief, affirmed.
Molly J. Huskey, State Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kristina M. Schindele, Deputy Attorney General, Boise, for respondent.
After being convicted of rape, Krispen Estrada filed an action for post-conviction relief in which he alleged that he had been compelled to submit to a psychosexual evaluation for sentencing purposes in violation of his Fifth Amendment privilege against self-incrimination. Estrada claimed that he had received ineffective assistance of counsel because his defense attorney did not advise him of his privilege to refuse the psychosexual evaluation and did not move to suppress the evaluator's report. Following an evidentiary hearing, the trial court denied Estrada's claims. We affirm.
In the underlying criminal case, Estrada pleaded guilty to the rape of his estranged wife in violation of Idaho Code § 18-6101, and an associated charge of kidnapping was dismissed. Prior to sentencing, the district court ordered a psychosexual evaluation of Estrada pursuant to I.C. § 18-8316. Estrada initially was uncooperative with the evaluator, and he wrote a letter to the court expressing his view that the evaluation was unnecessary. Ultimately, however, at the urging of counsel, Estrada submitted to the evaluation. The evaluator issued a report that did not favor Estrada, concluding that he was in the "maximum risk range" on the sexual assault scale and on the violence scale. The district court imposed a unified life sentence with a twenty-five-year determinate term, relying significantly on the negative evaluation. This Court affirmed the sentence on direct appeal. State v. Estrada, Docket No. 27737 (Ct. App. July 23, 2002) (unpublished).
Thereafter, Estrada filed a petition for post-conviction relief, asserting claims of ineffective assistance of counsel relating to his participation in the psychosexual evaluation. Estrada contended that his trial attorney's performance was deficient in that the attorney did not advise him that, even after his guilty plea, he continued to possess a Fifth Amendment privilege against self-incrimination and that, as a result, he could not be compelled to participate in the court-ordered psychosexual evaluation. Estrada also asserted that his attorney was ineffective for failing to move to suppress the evaluation report and preclude its consideration at sentencing on the basis that the evaluation was obtained in violation of Estrada's right against self-incrimination.
After an evidentiary hearing, the district court held that defense counsel's performance was deficient in that he did not advise Estrada of his Fifth Amendment privilege with respect to the evaluation. Based upon this finding, the district court did not reach the remaining issues regarding deficient performance. The district court concluded, however, that Estrada had suffered no prejudice as a result of the deficient performance because the psychosexual evaluation did not affect the length of Estrada's sentence. Estrada appeals.
In order to prevail on an ineffective assistance of counsel claim, an applicant must demonstrate both that his attorney's performance was deficient, and that he was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 687 (1984); Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct. App. 1995); Davis v. State, 116 Idaho 401, 406, 775 P.2d 1243, 1248 (Ct. App. 1989). To show deficient performance, a defendant must overcome the strong presumption that counsel's performance was adequate by demonstrating that counsel's representation did not meet objective standards of competence demanded of attorneys in criminal cases. Strickland, 466 U.S. at 687; Roman v. State, 125 Idaho 644, 648-49, 873 P.2d 898, 902-03 (Ct. App. 1994). If a defendant succeeds in establishing that counsel's performance was deficient, he must also prove the prejudice element by showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different." Id. at 649, 873 P.2d at 903.
Estrada argues on appeal that the district court erred in its finding of lack of prejudice from his defense attorney's deficient service. However, we must first address the State's argument that the district court erred in finding deficient performance in the first instance.
A. The Fifth Amendment Privilege Against Self-incrimination Applies in Psychosexual Evaluations Ordered by the Court for Sentencing Purposes
The State first argues that Estrada could not prove deficient performance by his defense counsel because a criminal defendant in a non-capital case has no Fifth Amendment privilege to refuse participation in a psychosexual evaluation that is conducted to provide information to the court for sentencing. This is an issue of first impression in Idaho. We conclude that the State's position is not well taken.
Our analysis begins with the seminal United States Supreme Court decision, Estelle v. Smith, 451 U.S. 454 (1981). Smith was charged with capital murder, and the trial court ordered a psychiatric examination to determine Smith's competency to stand trial. Smith was later tried by jury and convicted. At the sentencing phase, the state called the psychiatrist as a witness to establish Smith's future dangerousness, after which the death penalty was imposed. In subsequent federal habeas corpus proceedings, Smith asserted that use of the psychiatrist's testimony at the penalty phase violated Smith's Fifth Amendment privilege against compelled self-incrimination because Smith was not advised before the pretrial psychiatric examination that he had a right to remain silent and that any statement he made could be used against him at a sentencing proceeding. The Supreme Court concluded that the privilege against self-incrimination extended to the sentencing phase, rejecting the state's argument that the Fifth Amendment privilege is irrelevant to the penalty phase because "incrimination is complete once guilt has been adjudicated." Id. at 462. The Supreme Court stated:
The Fifth Amendment, made applicable to the states through the Fourteenth Amendment, commands that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." The essence of this basic constitutional principle is "the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips." Culombe v. Connecticut, 367 U.S. 568, 581-82 (1961) () (emphasis added). See also Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 (1964); E. GRISWOLD, THE FIFTH AMENDMENT TODAY 7 (1955).
The Court has held that "the availability of the [Fifth Amendment] privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites." In re Gault, 387 U.S. 1, 49 (1967). In this case, the ultimate penalty of death was a potential consequence of what respondent told the examining psychiatrist. Just as the Fifth Amendment prevents a criminal defendant from being made "`the deluded instrument of his own conviction,'" Culombe v. Connecticut, supra, at 581, quoting 2 HAWKINS, PLEAS OF THE CROWN 595 (8th ed. 1824), it protects him as well from being made the "deluded instrument" of his own execution.
We can discern no basis to distinguish between the guilt and penalty phases of respondent's capital murder trial so far as the protection of the Fifth Amendment privilege is concerned.
Id. at 462-63 (footnote omitted).1
More recently, in a non-capital case, Mitchell v. United States, 526 U.S. 314 (1999), the Supreme Court held that a guilty plea does not function as a waiver of the right to remain silent at sentencing. Id. at 321-25. The Court observed that, according to the express language of the Fifth Amendment, the privilege against self-incrimination applied to "any criminal case," which included, as a matter of law and common sense, the sentencing hearing. Id. at 327. The Court explained that until sentence has been imposed, a defendant may legitimately fear adverse consequences from further testimony. Therefore, the privilege applies until the sentence has been fixed and the judgment of conviction has become final. Id. at 325-27. The Supreme Court also rejected an assertion that a trial court may draw an adverse inference from a defendant's silence in sentencing proceedings. The Court adhered, instead, to "[t]he normal rule . . . that no negative inference from the defendant's failure to testify is permitted." Id. at 327-28. Thus, under Estelle and Mitchell, a criminal defendant's privilege against self-incrimination is not extinguished by a plea of guilty and continues until the sentence is fixed and the judgment is final.
The Idaho Supreme Court correctly anticipated Mitchell in State v. Wilkins, 125 Idaho 215, 868 P.2d 1231 (1994), where the Court held that the Fifth Amendment privilege protects a defendant against compelled testimony at the sentencing hearing in a non-capital case. Our Supreme Court held that a guilty plea waives the privilege against self-incrimination only for the limited purposes of establishing a factual basis for the plea and determining whether the plea is entered freely and voluntarily. Id. at 217-18, 868 P.2d at 1233-34. After the entry of a guilty...
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