Garza v. State

• Decision Date: 06 November 2017
• Docket Number: Docket No. 44991
• Citation: 405 P.3d 576,162 Idaho 791
• Court: Idaho Supreme Court
• Parties: Gilberto GARZA Jr., Petitioner-Appellant, v. STATE of Idaho, Respondent.

162 Idaho 791

405 P.3d 576

Gilberto GARZA Jr., Petitioner-Appellant,

v.STATE of Idaho, Respondent.

Docket No. 44991

Supreme Court of Idaho, Boise, September 2017 Term.

Filed: November 6, 2017

Eric D. Fredericksen, Idaho State Appellate Public Defender, Boise, for appellant. Maya P. Waldron, Deputy State Appellate Public Defender argued.

Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Kale D. Gans, Deputy Attorney General argued.

BURDICK, Chief Justice.

Gilberto Garza, Jr., appeals the Ada County district court's order dismissing his petitions for post-conviction relief. Garza signed two plea agreements relating to charges of aggravated assault and possession of a controlled substance with intent to distribute. As part of his plea agreements Garza waived his right to appeal. Despite the waivers, Garza instructed his attorney to appeal. Garza's attorney declined to file the appeals, citing the waivers of appeal in the plea agreements. Garza then filed two petitions for post-conviction relief, alleging his counsel was ineffective for failing to appeal. The district court dismissed Garza's petitions concluding Garza's counsel was not ineffective in failing to appeal. The Court of Appeals agreed and affirmed. We granted Garza's timely petition for review and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

This appeal involves two underlying convictions and two corresponding petitions for post-conviction relief.¹ On January 23, 2015, Garza entered an Alford plea to aggravated assault (assault case), and on February 24, 2015, he pleaded guilty to possession of a controlled substance with intent to deliver (possession case). The plea agreements bound the district court to sentence Garza to five years in prison for the assault case (two years fixed, three indeterminate), and another five years in prison for the possession case (one year fixed, four indeterminate). The sentences were to run consecutively, along with another prison sentence previously imposed on Garza. The district court accepted the plea agreements and imposed sentence in accordance with them on the same day Garza entered the possession plea. In both binding Idaho Criminal Rule 11(f)(1)(c) plea agreements, Garza waived his right to appeal, and waived his right to request relief pursuant to Idaho Criminal Rule 35. The court acknowledged that Garza had waived his right to appeal, but advised Garza of his appeal rights anyway. Garza did not appeal the convictions or sentences in the underlying cases.

Approximately four months later, Garza filed a petition for post-conviction relief in each case, asserting among other things that his trial attorney was ineffective for not filing notices of appeal. Garza stated in his affidavit submitted in the possession case that he asked his attorney to appeal, and in his affidavit submitted in his assault case that his attorney failed to appeal despite numerous phone calls and letters from Garza. Garza's former attorney stated in an affidavit that he did not file an appeal because Garza "received the sentence(s) he bargained for in his [plea] agreement" and "an appeal was problematic because [Garza] waived his right to appeal in his Rule 11 agreements."

The court appointed an attorney for Garza and issued a notice of intent to dismiss all of Garza's claims except for his claim of ineffective assistance of counsel. After both parties responded to the notice, the court dismissed all post-conviction claims except for the ineffective assistance of counsel claim regarding the failure to file an appeal. The parties then filed cross-motions for summary adjudication on Garza's remaining claim for post-conviction relief, where Garza sought a reopening of the appeals period in the underlying criminal cases on the basis of ineffective assistance of counsel. The district court dismissed Garza's petitions, and the Court of Appeals affirmed. We granted Garza's timely petition for review.

II. ISSUE ON APPEAL

1. Was Garza's attorney ineffective when he did not file an appeal after Garza requested it even though Garza had waived his right to appeal as part of a Rule 11 plea agreement?

III. STANDARD OF REVIEW

When addressing a petition for review, this Court will give "serious consideration to the views of the Court of Appeals, but directly reviews the decision of the lower court." State v. Schall , 157 Idaho 488, 491, 337 P.3d 647, 650 (2014) (quoting State v. Oliver , 144 Idaho 722, 724, 170 P.3d 387, 389 (2007) ). "Proceedings for post-conviction relief are civil in nature, rather than criminal, and therefore the applicant must prove the allegations in the request for relief by a preponderance of the evidence." State v. Dunlap , 155 Idaho 345, 361, 313 P.3d 1, 17 (2013). The district court may grant a motion by either party for summary disposition for post-conviction relief when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. I.C. § 19-4906(c). This Court exercises free review over the district court's "determination as to whether constitutional requirements have been satisfied in light of the facts found." Dunlap , 155 Idaho at 361, 313 P.3d at 17 (quoting State v. Pearce , 146 Idaho 241, 248, 192 P.3d 1065, 1072 (2008) ).

IV. ANALYSIS

A criminal defendant is permitted to waive his right to appeal as part of a plea agreement. State v. Murphy , 125 Idaho 456, 457, 872 P.2d 719, 720 (1994). The waiver is valid and will be upheld as long as it was entered into knowingly, voluntarily, and intelligently as part of a plea agreement. Id. In this case, the district court found that Garza did not show that his plea was not knowing, voluntary, or intelligent, nor did Garza raise this issue on appeal. The sole issue remaining is whether, despite the appeal waiver, Garza still had the right to appeal and therefore his counsel was ineffective for failing to file an appeal at his request.

This Court has not yet decided whether counsel is ineffective if counsel denies his client's request to file an appeal when the client waived the right to appeal in a binding Idaho Criminal Rule 11 plea agreement. Garza argues that the district court erred in requiring him to show, rather than presuming, his counsel was deficient and that Garza was prejudiced when his attorney declined to file an appeal in light of the waiver. For the reasons discussed below, we affirm the district court's dismissal of Garza's petitions for post-conviction relief.

Criminal defendants have a Sixth Amendment right to "reasonably effective" legal assistance. Roe v. Flores-Ortega , 528 U.S. 470, 476, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ); see also Booth v. State , 151 Idaho 612, 617, 262 P.3d 255, 260 (2011). A defendant claiming ineffective assistance of counsel must show that (1) counsel's representation was deficient; and (2) counsel's deficient performance prejudiced the defendant. Strickland , 466 U.S. at 688–92, 104 S.Ct. 2052 ; Self v. State , 145 Idaho 578, 580, 181 P.3d 504, 506 (Ct. App. 2007). To show counsel was deficient, the defendant has the burden of showing that his attorney's representation fell below an objective standard of reasonableness. Aragon v. State , 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). Generally, when trial counsel fails to file an appeal at a criminal defendant's request, such performance is professionally unreasonable and therefore deficient. Flores-Ortega , 528 U.S. at 477, 120 S.Ct. 1029 ; Beasley v. State , 126 Idaho 356, 362, 883 P.2d 714, 720 (Ct. App. 1994). To show that counsel's deficient per formance was prejudicial, the defendant must show there is a reasonable probability that, but for counsel's deficiencies, the result of the proceeding would have been different. Strickland , 466 U.S. at 669, 104 S.Ct. 2052 ; Aragon , 114 Idaho at 761, 760 P.2d at 1177. This test applies to claims that counsel was ineffective for failing to file a notice of appeal. Flores-Ortega , 528 U.S. at 477, 120 S.Ct. 1029. However, whether counsel was ineffective becomes unclear when the reason the attorney did not file the appeal is because the client waived the right to appeal as part of a plea agreement.

Neither the United States Supreme Court nor this Court have decided whether an attorney has provided ineffective assistance of counsel if the attorney declines to file an appeal after a defendant has requested it, when the defendant has waived the right to appeal as part of a plea agreement. There is a federal circuit split regarding the issue, which involves differing interpretations of the United State Supreme Court's decision in Flores-Ortega . The Flores-Ortega case did not involve an appeal waiver, but rather dealt with whether an attorney provided ineffective assistance of counsel when she failed to appeal because it was unclear if her client wanted to appeal. See Flores-Ortega , 528 U.S. at 475, 120 S.Ct. 1029. The Court held "when counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal." Id. at 484, 120 S.Ct. 1029.

A majority of federal circuit courts have interpreted Flores-Ortega to apply even in situations where the defendant has validly waived his right to appeal. Those circuits hold that attorneys are ineffective when they do not file an appeal after the clients requested it, regardless of whether the defendants had waived their rights. See Campbell v. United States , 686 F.3d 353, 360 (6th Cir. 2012) ; United States v. Poindexter , 492 F.3d 263, 265 (4th Cir. 2007) ; United States v. Tapp , 491 F.3d 263, 266 (5th Cir. 2007) ; Watson v. United States , 493 F.3d 960, 964 (8th Cir. 2007) ; Campusano v. United States , 442 F.3d 770, 775 (2d Cir. 2006) ; United States v. Sandoval-Lopez , 409 F.3d 1193, 1198 (9th...