GABLE v. State Of Idaho, Docket No. 36233
| Decision Date | 22 June 2010 |
| Docket Number | Docket No. 36233 |
| Parties | MARK W. GABLE, Petitioner-Appellant,v.STATE OF IDAHO, Respondent. |
| Court | Idaho Court of Appeals |
Nevin, Benjamin, McKay & Bartlett LLP, Boise, for appellant. Annie O. McDevitt argued.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent. Jessica M. Lorello argued.
2010 Unpublished Opinion No. 520
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael E. Wetherell, District Judge.
Order summarily dismissing application for post-conviction relief, affirmed.
Mark W. Gable appeals from the district court's order summarily dismissing his application for post-conviction relief following an evidentiary hearing. We affirm.
The factual and procedural background of the underlying criminal proceeding is set forth in State v. Gable, Docket No. 32446 (Ct. App. Oct. 16, 2007) (unpublished):
At Gable's trial, a loss prevention employee from a store testified that she contacted the police because a male and female had entered her store with a baby carrier and appeared very suspicious and nervous, to the point of seeming paranoid. The female was observed in the cold medicine aisle of the store and could not stop moving. The female asked the employee what the difference was between the regular Sudafed and the store brand, and then the male and female left the store. The employee testified that the two individuals met Gable at a vehicle and threw the baby carrier in the back seat.
In response to the employee's call, the civilian supervisor of the crime prevention unit arrived at the store and observed Gable drive his male and female companions across the street to another store. At the second store, the male and female again removed the baby carrier and entered the store, returning to the vehicle a few moments later. The supervisor said the trio repeated this suspicious behavior again at a third and fourth store. After the fourth store, a marked police unit was contacted. Gable's vehicle was stopped based on the trio's suspicious behavior and some concern over whether there was a live baby in the carrier, which had been thrown into the back of the vehicle after exiting each store.
Gable was arrested for driving without privileges. A search of his vehicle incident to arrest revealed methamphetamine, drug paraphernalia, empty Dimetap boxes and blister packs, a ledger with numbers and colors written in it, and approximately one thousand pseudoephedrine pills. The police also found the baby carrier, which contained only a doll, and a diaper bag lined with aluminum foil. Gable was charged with four counts of conspiracy to commit burglary, I.C. §§ 18-1401 and 18-204, and conspiracy to traffic in methamphetamine by manufacturing, I.C. §§ 37-2732B(a)(3), 18-1701.
A jury found Gable guilty of three of the four counts of aiding and abetting burglary and conspiracy to traffic methamphetamine by manufacturing.
On direct appeal, Gable argued, among other things, that the district court erred in denying his mid-trial motion to suppress evidence found in his vehicle because the officers lacked a reasonable, articulable suspicion to stop his vehicle. This Court held that the district court abused its discretion "by entertaining Gable's motion without first applying the legal standards set forth in I.C.R. 12--namely requiring Gable to show whether good cause or excusable neglect existed." Gable, Docket No. 32446. We concluded that because Gable's motion was untimely, the district court's ultimate denial of Gable's motion on the merits could not constitute reversible error and, after discussing the other issues presented, affirmed Gable's judgment of conviction and sentences. Id.
Gable filed a timely application for post-conviction relief, contending that he received ineffective assistance of trial and appellate counsel, and that his conviction and sentence were in violation of the Idaho and United States Constitutions. Specifically, and of relevance to this appeal, Gable argued that his trial counsel was ineffective for failing to "file a motion to suppress evidence due to illegal stop." Gable also filed a motion to appoint counsel, which was granted.
The district court issued a notice of its intention to dismiss all but Gable's claims of ineffective assistance of trial and appellate counsel. The State filed an answer and moved for summary dismissal of Gable's application. Gable filed a response to the district court's noticeregarding summary dismissal, arguing only his allegations of ineffective assistance of trial and appellate counsel. The court summarily dismissed all of Gable's claims, except for his claims that he received ineffective assistance of trial and appellate counsel, and scheduled an evidentiary hearing. Following the hearing, the court issued an order denying Gable's application for post-conviction relief. Gable appeals.
A. Motion to Suppress
Gable asserts that trial counsel's performance was deficient because, by relying solely upon the police reports and the preliminary hearing transcript, counsel failed to adequately investigate the circumstances of the traffic stop, which would have revealed that there was not a baby in the baby carrier, and that the officers did not believe there was a baby in the carrier. He further argues that he was prejudiced because, had a motion to suppress been timely filed, it would have been successful due to the fact that the officers lacked reasonable, articulable suspicion to stop Gable's vehicle based upon either child endangerment or suspected shoplifting.1
A claim of ineffective assistance of counsel may properly be brought under the Uniform Post-Conviction Procedure Act. Hughes v. State, 148 Idaho 448, 451, 224 P.3d 515, 518 (Ct. App. 2009). 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); Hughes, 148 Idaho at 451, 224 P.3d at 518. 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); Hughes, 148 Idaho at 451, 224 P.3d at 518. To establish prejudice, the applicant must show a reasonable probability that, but for the attorney's deficient performance, the outcome of the trial would have been different. Aragon, 114 Idaho at 761, 760 P.2d at 1177; Hughes, 148 Idaho at 451, 224 P.3d at 518. This Court has long-adhered to the proposition that tactical or strategic decisions of trial counsel will not be second-guessed on appeal unless those decisions are based on inadequate preparation, ignorance of relevant law, or other shortcomings capable of objective evaluation. Howard v. State, 126 Idaho 231, 233, 880 P.2d 261, 263 (Ct. App. 1994).
In a post-conviction proceeding challenging an attorney's failure to pursue a motion in the underlying criminal action, the district court may consider the probability of success of the motion in question in determining whether the attorney's inactivity constituted incompetent performance. Boman v. State, 129 Idaho 520, 526, 927 P.2d 910, 916 (Ct. App. 1996). Where the alleged deficiency is counsel's failure to file a motion, a conclusion that the motion, if pursued, would not have been granted by the trial court, is generally determinative of both prongs of the Strickland test. Boman, 129 Idaho at 526, 927 P.2d at 916.
Although the probability of success on a motion is generally determinative of both prongs of the Strickland test, the posture of this case presents a peculiar situation as trial counsel did orally raise a motion to suppress at trial, and the district court reviewed and denied it. Gable contends, however, that "but for [trial counsel's] deficient performance in raising the suppression issue too late and without just cause, it is reasonably likely the Court of Appeals would have held the officers lacked reasonable and articulable suspicion to stop Mr. Gable's car, thus satisfying the prejudice prong." While this Court did not address the merits of Gable's motion on his direct appeal, we do so now. We conclude that even assuming that trial counsel rendered deficient performance by failing to raise a timely motion to suppress, Gable has failed to demonstrate any resulting prejudice because a motion to suppress would not have been successful as the officers had reasonable, articulable suspicion to stop Gable's vehicle.
1. Reasonable, articulable suspicion
The Fourth Amendment to the United States Constitution prohibits government agents from conducting unreasonable searches and seizures. When a private vehicle is stopped by the police, all of its occupants are "seized" and may seek suppression of evidence if the seizure did not comply with Fourth Amendment standards. Brendlin v. California, 551 U.S. 249 (2007); State v. Luna, 126 Idaho 235, 880 P.2d 265 (Ct. App. 1994). To pass constitutional muster, a detention to investigate possible criminal activity must be based upon reasonable suspicion, derived from specific articulable facts, and the rational inferences that can be drawn from those facts, that the person stopped has committed, or is about to commit, a crime. Terry v. Ohio, 392 U.S. 1, 26-27 (1968); State v. Bishop, 146 Idaho 804, 811, 203 P.3d 1203, 1210 (2009); State v. Sheldon, 139 Idaho 980, 983, 88 P.3d 1220, 1223 (Ct. App. 2003); State v. Salato, 137 Idaho 260, 264, 47 P.3d 763, 767 (Ct. App. 2001). The quantity and quality of information necessary to create reasonable suspicion for such a "Terry stop" is less than that necessary to establish probable cause, Alabama v. White, 496 U.S. 325, 330 (1990); Bisho...
To continue reading
Request your trial