Follinus v. State

• Decision Date: 26 December 1995
• Docket Number: No. 21942,21942
• Citation: 908 P.2d 590,127 Idaho 897
• Parties: Joseph L. FOLLINUS, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

Page 590

908 P.2d 590

127 Idaho 897

Joseph L. FOLLINUS, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 21942.

Court of Appeals of Idaho.

Dec. 26, 1995.

Roberts & Robinson, Caldwell, for appellant.

Alan G. Lance, Attorney General; Michael A. Henderson, Attorney General, Boise, for respondent.

PERRY, Judge.

Joseph L. Follinus appeals from the district court's summary dismissal of his post-conviction application. He further contends that his counsel during the post-conviction proceedings was ineffective. We affirm.

I. FACTS AND PROCEDURE

Follinus was found guilty by a jury of possession of ephedrine with intent to manufacture methamphetamine, possession of methamphetamine with intent to deliver, and manufacturing methamphetamine. For each offense, the trial court sentenced Follinus to three concurrent unified terms of twenty years, with minimum periods of incarceration of seven years. Follinus appealed to the Idaho Supreme Court, which upheld his convictions Follinus filed a pro se application for post-conviction relief, claiming that his trial counsel was ineffective by failing to request a hearing to challenge the search warrant affidavit and further failing to properly pursue a claim that the independent source doctrine is not an exception to the warrant requirement under Article I, Section 17 of the Idaho Constitution. As requested by Follinus, the district court appointed counsel to represent him in the post-conviction proceedings. The state filed an answer and a motion for summary disposition. The district court, however, issued a notice of intent to dismiss the application and provided Follinus twenty days to respond. The application was dismissed by the district court three months later, after no further action was taken by Follinus or his counsel.

[127 Idaho 899] and sentences. See State v. Follinus, 124 Idaho 26, 855 P.2d 863 (1993).

Follinus appeals claiming that he was entitled to an evidentiary hearing prior to dismissal of his application and that his counsel was ineffective during the post-conviction proceedings below. The district court again appointed new counsel for Follinus in this appeal.

II. ANALYSIS

Follinus contends that the district court erred by summarily dismissing his application without an evidentiary hearing. 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); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct.App.1992). Summary dismissal of an application pursuant to Idaho Code Section 19-4906 is the procedural equivalent of summary judgment under I.R.C.P. 56. Like 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, however, for an application 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 Section 19-4906 authorizes summary disposition of an application for post-conviction relief, either pursuant to a 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 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 a petition for post-conviction relief may be appropriate, however, 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); Hays v. State, 113 Idaho 736, 739, 747 P.2d 758, 761 (Ct.App.1987); Baruth v. Gardner, 110 Idaho 156, 159, 715 P.2d 369, 372 (Ct.App.1986).

On review of a dismissal of a post-conviction application, without an evidentiary hearing, we will determine whether a genuine issue of fact exists based on the pleadings, depositions and admissions together with any affidavits on file; moreover, the court will liberally construe the facts and reasonable inferences in favor of the non- Summary dismissal is appropriate where the record from the criminal action or other evidence conclusively disproves essential elements of the applicant's claims. Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); Cooper v. State, 96 Idaho 542, 545, 531 P.2d 1187, 1190 (1975); Remington v. State, 127 Idaho 443, 446-47, 901 P.2d 1344, 1347-48 (Ct.App.1995). See also Dunlap v. State, 126 Idaho, 901, 906, 894 P.2d 134, 139 (Ct.App.1995) (police affidavit was sufficient to support issuance of search warrant, and defense attorney therefore was not deficient in failing to move to suppress evidence on ground that warrant was illegally issued); Stone v. State, 108 Idaho 822, 826, 702 P.2d 860, 864 (Ct.App.1985) (record of extradition proceedings disproved applicant's claim that he was denied right to counsel in those proceedings). In this respect, summary dismissal is analogous to summary judgment proceedings in an ordinary civil action, where the defendant may obtain summary judgment if the defendant disproves one or more essential elements of the plaintiff's cause of action. See, e.g., Badell v. Beeks, 115 Idaho 101, 102, 765 P.2d 126, 127 (1988).

[127 Idaho 900] moving party. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct.App.1993).

In order to prove a claim of ineffective assistance of counsel, an applicant must show that the attorney's conduct fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984); Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). There is a strong presumption that trial counsel's performance falls within the wide range of professional assistance. Id. An applicant must not only show incompetence, but must also show that the deficient conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Ivey v. State, 123 Idaho 77, 80, 844 P.2d 706, 709 (1992). In order for the applicant to satisfy the second prong of the Strickland test, he or she must establish that there is a reasonable probability that the outcome of the trial would have been different. Aragon v. State, 114 Idaho at 761, 760 P.2d at 1177.

A. Summary Dismissal of Application Without an Evidentiary Hearing

Follinus first contends that he received ineffective assistance of counsel in the underlying criminal proceedings and that the district court erred in summarily dismissing his application without a hearing on this issue. Follinus claims that the search of his home and the seizure of evidence, which was later admitted at trial, was authorized by a search warrant issued based upon a faulty affidavit. Follinus alleged in his post-conviction application that the affiant in support of the search warrant "presented deliberately false information regarding the weapons and chemicals on the premises, as well as the previous conviction record of the suspect in order to influence the magistrate in issuance of the warrant." Follinus claims that his trial counsel was deficient in failing to request a hearing in which to test the veracity of the affiant. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

In Franks, the United States Supreme Court held that if a criminal defendant makes a sufficient showing that the affiant attested to information that was deliberately false or that was presented in reckless disregard for the truth the defendant may have a right to challenge the search warrant. If, when the alleged false material is excised, the remaining content of the warrant affidavit is insufficient to support a finding of probable cause, the defendant is entitled to a hearing to determine if the warrant issued in reliance on the affidavit is invalid. "[I]f, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support probable cause, no hearing is required." Id., at 171-72, 98 S.Ct. at 2684-85.

Follinus's trial counsel filed a motion to suppress the evidence seized pursuant to the search warrant, the supporting affidavit of which Follinus now claims should have been challenged pursuant to Franks. After an evidentiary hearing, the trial court in the While we do not condone the officer's warrantless entry into the residence, the circumstances of the case and our prior decisions establish that pursuant to the independent source doctrine, the trial court correctly refused to suppress the evidence seized pursuant to the search warrant.

[127 Idaho 901] criminal action denied the motion to suppress. Follinus filed a...