Fenstermaker v. State

• Decision Date: 04 August 1995
• Docket Number: No. 21498,21498
• Citation: 912 P.2d 653,128 Idaho 285
• Parties: Ronnie Lee FENSTERMAKER, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

Page 653

912 P.2d 653

128 Idaho 285

Ronnie Lee FENSTERMAKER, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 21498.

Court of Appeals of Idaho.

Aug. 4, 1995.

Petition for Review Denied Sept. 22, 1995.

[128 Idaho 286] Ronnie L. Fenstermaker, Boise, pro se appellant.

Alan G. Lance, Atty. Gen.; Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for respondent.

WALTERS, Chief Judge.

Ronnie Lee Fenstermaker appeals from a judgment and order by the district court dismissing his application for post-conviction

[128 Idaho 287] relief. Fenstermaker contends that the district court erred by denying relief without conducting an evidentiary hearing on claims raised in the application. We affirm.

BACKGROUND

Fenstermaker pled guilty to attempted second degree murder and to assault with intent to commit a serious felony after he shot and wounded a woman jogger whom he had intended to abduct and rape. During the attack, when he endeavored to shoot her a second time, his pistol misfired and the woman escaped. Fenstermaker received a fifteen-year determinate sentence on the attempted murder charge and an indeterminate ten-year sentence for the assault conviction, to be served consecutively. The judgments of conviction and sentences were upheld on an earlier appeal. State v. Fenstermaker, 122 Idaho 926, 841 P.2d 456 (Ct.App.1992) (hereafter referred to as case no. 19888).

In 1994, Fenstermaker filed an application for post-conviction relief. The application was summarily dismissed by the district court pursuant to I.C. § 19-4906(b). This section provides that:

When a court is satisfied, on the basis of the application, the answer or motion, and the record, that the applicant is not entitled to post-conviction relief and no purpose would be served by any further proceedings, it may indicate to the parties its intention to dismiss the application and its reasons for doing so. The applicant shall be given an opportunity to reply within 20 days to the proposed dismissal. In light of the reply, or on default thereof, the court may order the application dismissed or grant leave to file an amended application or, direct that the proceedings otherwise continue. Disposition on the pleadings is not proper if there exists a material issue of fact.

ISSUES

Fenstermaker argues that his application asserted three grounds for relief which should not have been summarily dismissed by the district court without an evidentiary hearing. Those grounds were: (1) he was entitled to correction of his sentence because the trial court failed to apply the standards set forth in I.C. § 19-2523 for consideration of mental illness in determining the sentences to be imposed; (2) he was deprived of the effective assistance of counsel because his attorney failed to inform him of the terms of a plea agreement; and (3) he should not have been convicted of attempted second degree murder because that crime does not exist in Idaho.

From our review of the record, we conclude that none of these claims have merit and that the district court correctly dismissed Fenstermaker's application without holding an evidentiary hearing.

DISCUSSION

An application for post-conviction relief initiates a proceeding which is civil in nature. State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969). Such an application, however, differs from a complaint in an ordinary civil action because an application for post-conviction relief must contain much more than "a short and plain statement of the claim" that would suffice for a complaint under I.R.C.P. 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 petition. 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 § 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 petitioner to the requested relief. If such a factual issue is presented, an evidentiary

[128 Idaho 288] 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, 754 P.2d 458 (Ct.App.1988); Ramirez v. State, 113 Idaho 87, 741 P.2d 374 (Ct.App.1987). Summary dismissal of a petition for post-conviction relief may be appropriate, nonetheless, even where the State does not controvert the applicant's evidence, for 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, 159-60, 715 P.2d 369, 372-73 (Ct.App.1986).

I. Mental Illness

Idaho Code § 19-2523 permits the court to consider evidence offered with respect to the defendant's mental condition, in addition to other criteria provided by law, in determining the sentence to be imposed. The statute also provides that, if the defendant's mental condition is a significant factor, the court shall consider such factors as:

(a) the extent to which the defendant is mentally ill;

(b) the degree of illness or defect and level of functional impairment;

(c) the prognosis for improvement or rehabilitation;

(d) the availability of treatment and level of care required;

(e) any risk of danger which the defendant may create for the public, if at large, or the absence of such risk;

(f) the capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law at the time of the offense charged.

In his application for post-conviction relief, Fenstermaker asserted that the district court failed to consider these factors. However, the record in the underlying criminal proceeding indicates otherwise. The clerk's minutes in case no. 19888 reflect that, when the district court accepted Fenstermaker's pleas of guilty, the court ordered preparation of a psychological evaluation in addition to a presentence report. Later, during the sentencing proceeding, the psychological evaluation was reviewed by the district court. The transcript of that proceeding contains the district court's discussion of its consideration of the information contained in the evaluation. The court said:

First of all, this is obviously a case that no rational person would say that this is a case where the court should grant probation, because the facts in the charges are simply too serious to even suggest that type of possibility.

Secondly, I have to consider factors of whether or not--factors relating to rehabilitation; factors relating to the protection of society; factors relating to deterrence, both general and specific deterrence; also the consideration of the punishment; and also consideration of proportionality.

. . . . .

As far as the question of rehabilitation is concerned, I think that Dr. Engle has summed it up in his report, that Mr. Fenstermaker is the sort of individual who learns best from behavioral consequences as opposed to verbal insight.

Behavioral consequences in this case is a prison sentence. I think it's clear that this stands out throughout Dr. Engle's evaluation and report that he does not feel that the defendant is a good candidate for therapeutic measures or rehabilitative measures. And I agree with that.

I feel that this is a case where society needs to be protected. I feel this is a case that calls out for punishment because of the seriousness of the crime.

I feel that the rehabilitation potential as far as Mr. Fenstermaker is very slim indeed, and that a substantial prison sentence is the only way to protect society from Mr. Fenstermaker.

I won't go through all the details of this report. I do have to recognize, of course, that the defendant does not have too much in the way of a prior criminal record. But what he does have, as the prosecutor has indicated, is frightening.

This record demonstrates that the district court adequately considered the substance Accordingly, we conclude Fenstermaker's claim that the sentencing court committed some error in not explicitly reaching conclusions with respect to each of the factors set forth in I.C. § 19-2523(1) does not serve as a basis for post-conviction relief. The district court below correctly dismissed that claim, without an evidentiary hearing, in considering Fenstermaker's application for post-conviction relief.

[128 Idaho 289] of the factors suggested inI.C. § 19-2523(1)(a) through (f) in arriving at its sentencing decision. Similar to a review of the criteria set forth in I.C. § 19-2521 for placing a defendant on probation or imposing imprisonment, we hold that the sentencing court is not required to check off or recite each of the factors in I.C. § 19-2523 for the benefit of the defendant. State v. Burroughs, 107 Idaho 195, 687 P.2d 585 (Ct.App.1984).

II. Effective Assistance of Counsel

Next, Fenstermaker contends that the district court should have held an evidentiary hearing on the question of whether Fenstermaker was deprived of the effective assistance of counsel because Fenstermaker's attorney allegedly failed to inform him of "changes" in the terms of a plea agreement. In his application for post-conviction relief, Fenstermaker averred that, prior to pleading guilty, his attorney told him that a plea agreement had been reached whereby Fenstermaker would plead guilty to only one charge, with a...