Goodwin v. State

• Decision Date: 29 October 2002
• Docket Number: No. 26017, No. 27821.
• Citation: 61 P.3d 626,138 Idaho 269
• Parties: Randall C. GOODWIN, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

61 P.3d 626

138 Idaho 269

Randall C. GOODWIN, Petitioner-Appellant, v. STATE of Idaho, Respondent.

Nos. 26017, 27821.

Court of Appeals of Idaho.

October 29, 2002.

Review Denied January 17, 2003.

Molly J. Huskey, State Appellate Public Defender; Paul S. Sonenberg, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Alan G. Lance, Attorney General; Kimberly J. Blas, Deputy Attorney General, Boise, for respondent.

PERRY, Chief Judge.

In these consolidated appeals, Randall C. Goodwin challenges orders of the district court dismissing his application for post-conviction relief. We affirm.

I. FACTS AND PROCEDURE

Goodwin pled guilty to burglary. I.C. §§ 18-1401, -1403. The district court sentenced Goodwin to a unified term of ten years, with a minimum period of confinement of five years. No appeal was taken from Goodwin's judgment of conviction or sentence. Goodwin subsequently filed an I.C.R. 35 motion requesting the district court to reconsider the sentence imposed, which was denied. Goodwin did not appeal from the denial of his Rule 35 motion.

Goodwin then filed an application for post-conviction relief. In his application, Goodwin alleged that his trial counsel was ineffective for: (1) not informing Goodwin of his right to appeal the denial of his Rule 35 motion; (2) failing to advise the district court of an alleged plea agreement between Goodwin and the state at sentencing, whereby the state agreed to recommend a suspended unified term of seven years, with a minimum period of confinement of one year, and that Goodwin be placed on probation for five years in exchange for Goodwin's guilty plea; and (3) not requesting that the pretrial conference, where the purported plea agreement was discussed, be recorded by a court reporter. In addition to his ineffective assistance claims, Goodwin asserted that the state breached the alleged plea agreement by recommending a minimum period of confinement of four years. The state filed an answer and requested that Goodwin's application be dismissed.

In September 1999, the district court entered its first order dismissing Goodwin's application with regard to his ineffective assistance of trial counsel claims. However, the district court scheduled further proceedings with respect to Goodwin's claim regarding the state's breach of the alleged plea agreement. In October, Goodwin's post-conviction relief application was dismissed with regard to the breach of the alleged plea agreement. Goodwin appealed. This appeal was docketed as No. 26017. After his appeal was filed, the Idaho Supreme Court granted a motion by the state to remand the case to the district court based on the district court's failure to provide Goodwin twenty days' notice of its intent to dismiss his application as required by I.C. § 19-4906(b). Upon remand, the district court entered its third order dismissing Goodwin's post-conviction relief application without an evidentiary hearing and modifying Goodwin's sentence to run concurrent with a sentence imposed in an unrelated case. Goodwin again filed a notice of appeal, which was filed separately under Docket No. 27821. His original appeal, under docket No. 26017, was reinstated. The two appeals were then consolidated for review by this Court. On appeal, Goodwin asserts that he received ineffective assistance of trial counsel because counsel failed to consult with him about appealing the denial of his Rule 35 motion and failed to request the recordation of the pretrial conference by a court reporter. Goodwin does not argue any issues relating to the alleged plea agreement.

II. STANDARD OF REVIEW

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 I.C. § 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 application. 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 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 an application for post-conviction relief may be appropriate, however, even where the state does not controvert the applicant's evidence because 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, 715 P.2d 369, 372 (Ct. App.1986).

On review of a dismissal of a post-conviction relief application without an evidentiary hearing, we determine whether a genuine issue of fact exists based on the pleadings, depositions and admissions together with any affidavits on file; moreover, the court liberally construes the facts and reasonable inferences in favor of the non-moving party. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct.App.1993).

III. ANALYSIS

A claim of ineffective assistance of counsel may properly be brought under the post-conviction procedure act. Murray v. State, 121 Idaho 918, 924-25, 828 P.2d 1323, 1323, 1329-30 (Ct.App.1992). 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. Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct.App.1995); Russell, 118 Idaho at 67, 794 P.2d at 656; Davis v. State, 116 Idaho 401, 406, 775 P.2d 1243, 1248 (Ct.App.1989). 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); Russell, 118 Idaho at 67, 794 P.2d at 656. 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; Russell, 118 Idaho at 67, 794 P.2d at 656.

A. Failure to Consult

Goodwin first argues that he received ineffective assistance of counsel because trial counsel failed to consult with him about appealing the denial of his Rule 35 motion. Goodwin claims that he did not request trial counsel to appeal from the denial of his motion because he was unaware he could do so.

An attorney who disregards specific instructions from a defendant to file a notice of appeal acts in a manner that is professionally unreasonable. See Beasley v. State, 126 Idaho 356, 360, 883 P.2d 714, 718 (Ct.App.1994). On the other hand, a defendant who explicitly instructs counsel not to file an appeal cannot later complain that, by following the defendant's instructions, counsel performed deficiently. Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S.Ct. 1029, 1034, 145 L.Ed.2d 985, 994 (2000). Where the defendant has not conveyed his or her intent with respect to an appeal either way, the court must first determine whether trial counsel consulted with the defendant about an appeal. Id. at 478, 120 S.Ct. at 1035,145 L.Ed.2d at 995; Pecone v. State, 135 Idaho 865, 868, 26 P.3d 48, 51 (Ct.App.2001). In this context, the term "consult" means advising the defendant about the advantages and disadvantages of taking an appeal and making a reasonable effort to discover the defendant's wishes. Flores-Ortega, 528 U.S. at 478,120 S.Ct. at 1035,145 L.Ed.2d at 995. If counsel has consulted with the defendant, then counsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with regard to an appeal. Id.

If counsel has not consulted with the defendant, then counsel's performance in failing to consult with the defendant is itself deficient if a rational defendant would want to appeal or the particular defendant reasonably demonstrated to counsel that he or she was interested in appealing. Id. at 480, 120 S.Ct. at 1036, 145 L.Ed.2d at 996. In making these determinations, courts must take into account all the information counsel knew or should have known. Id.

Once counsel's performance has been shown to be deficient, the defendant must demonstrate actual prejudice by showing that there is a reasonable probability that, but for counsel's deficient failure...