Hansen v. State, Docket No. 35778 (Idaho App. 5/6/2010), Docket No. 35778.

CourtCourt of Appeals of Idaho
Writing for the CourtPerry
PartiesTIMOTHY HANSEN, Petitioner-Appellant, v. STATE OF IDAHO, Respondent.
Docket NumberDocket No. 35778.
Decision Date06 May 2010

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TIMOTHY HANSEN, Petitioner-Appellant,
STATE OF IDAHO, Respondent.
Docket No. 35778.
Court of Appeals of Idaho.
Filed May 6, 2010.

Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. Ronald E. Bush, District Judge.

Order of the district court summarily dismissing application for post-conviction relief, affirmed.

Nevin, Benjamin, McKay & Bartlett LLP, Boise, for appellant. Dennis A. Benjamin argued.

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent. Lori A. Fleming argued.


PERRY, Judge Pro Tem.

Timothy J. Hansen appeals from the district court's order summarily dismissing his application for post-conviction relief. We affirm.


The factual and procedural background of the underlying criminal proceeding is set forth in State v. Hansen, Docket No. 29360 (Ct. App. June 23, 2004) (unpublished):

In June 2001, police officers, acting on a tip regarding a methamphetamine lab, performed surveillance of residential property in Pocatello. The officers saw Hansen leave the property, where Hansen lived in a bus parked behind the main residence. The officers initiated a felony traffic stop based on a felony arrest warrant issued in Utah and because Hansen was driving without privileges. Hansen was arrested at gunpoint without incident.

After being placed in the patrol car, Hansen was informed that the police had information about a methamphetamine lab at the residence. Without first

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informing Hansen of his Miranda1 rights, officers asked him whether the information was true. Hansen answered that there was no lab at the property. Officers replied that Hansen could clear up the information by walking them through his house. Hansen declined and was left in the patrol car while officers searched his vehicle and made preparations for towing. According to the officers' subsequent testimony, when they returned to the patrol car, Hansen offered that he would show them through the bus if they would not tow his vehicle. The officers agreed and took Hansen to the property.

Upon arrival at the property, officers presented Hansen with a consent-to-search form which, after an explanation of the form, Hansen signed. He authorized the officers to conduct a plain-sight search of the inside of the bus where he lived. Hansen was told he could withdraw his consent at any time. He did not agree to show them the main residence because he claimed that it belonged to someone else and he did not live in it. Around the outside of the bus, officers saw evidence of methamphetamine manufacturing. Inside the bus, officers discovered drug paraphernalia. Based on these discoveries, officers applied for and obtained a warrant to search the entire premises, including the inside of the main residence. The subsequent search revealed substances and equipment used in manufacturing methamphetamine, as well as methamphetamine itself. Hansen was charged with conspiracy to manufacture methamphetamine. I.C. §§ 37-2732(a)(1)(A), 37-2732(f).

Prior to trial, Hansen filed a motion to suppress all evidence obtained during the search pursuant to his consent as well as the search conducted under the warrant. Hansen contended that his consent was given involuntarily while under duress and without required Miranda warnings. After an evidentiary hearing, the suppression motion was denied. A jury found Hansen guilty as charged, and the district court sentenced Hansen to a fifteen-year term of imprisonment with five years fixed. A subsequent I.C.R. 35 motion for reduction of Hansen's sentence was denied. Hansen's judgment of conviction and sentence, as well as the denial of his Rule 35 motion, were upheld on direct appeal to the Idaho Supreme Court. State v. Hansen, 138 Idaho 791, 69 P.3d 1052 (2003). The Supreme Court acknowledged that the police had initially interrogated Hansen in violation of Miranda. The Court held, however, that the interrogation had ceased when officers left Hansen alone in the patrol car and that he was not being interrogated when he later volunteered to allow a search if the police agreed not to tow his vehicle.

After Hansen's sentencing and filing of the direct appeal in this case, Hansen filed a motion to compel the state to produce a videotape recording of Hansen's arrest for purposes of reviewing newly discovered evidence. Reference to a videotape of the arrest had previously been made by a witness for the state at trial. Additionally, police reports given to Hansen prior to trial indicated that a videotape recording of the arrest was available. Although Hansen had requested the tape through three pretrial discovery requests, the tape had not been given to

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Hansen prior to trial. Hansen's post-trial motion to compel was granted and, after further orders compelling production of the videotape, the prosecutor filed an affidavit indicating that neither he nor the officers involved in Hansen's arrest had any knowledge of the tape. Eventually, the videotape was discovered and made available to Hansen. Hansen thereafter filed a motion to dismiss his conviction or order a new trial on the ground that the videotape constituted newly discovered evidence. Hansen argued that the videotape could have affected the outcome of the suppression motion and, ultimately, the trial. Hansen also argued that the state's failure to disclose the videotape prior to trial was prosecutorial misconduct. Hansen's motion to dismiss his conviction or order a new trial was denied. The district court concluded that the evidence in the videotape was immaterial to the jury verdict and would not have produced an acquittal. However, Hansen's request for sanctions against the state for failure to produce the videotape in response to repeated discovery requests was granted and an award of fees was entered. On appeal, Hansen argues that the district court abused its discretion when it denied his motion for a new trial. Hansen requests that this Court vacate the district court's order and remand for a new suppression hearing with the possibility for a new trial.

This Court affirmed the district court's order denying Hansen's motion for a new trial, concluding that Hansen had not demonstrated a Miranda violation and that he "failed to show that his motion to suppress would have been granted and the outcome of trial would have been different had the videotape been disclosed." State v. Hansen, Docket No. 29360 (Ct. App. June 23, 2004) (unpublished).

While Hansen's appeal on his motion for a new trial was pending, he filed a second motion for a new trial on June 16, 2003. The district court treated Hansen's motion as an application for post-conviction relief and denied the motion. Hansen appealed, and the case was ultimately remanded to give the court an opportunity to address the merits of Hansen's second motion for a new trial. On remand, the district court denied Hansen's second motion for a new trial, which Hansen appealed.

While his second motion for a new trial was pending in the criminal case, and the denial of his first motion for a new trial was pending on appeal, on April 23, 2004 Hansen filed an application for post-conviction relief, together with a supporting affidavit, alleging several claims. On August 10, 2005, after issuing a notice of intent to dismiss Hansen's application and receiving Hansen's response, the post-conviction court dismissed the application in its entirety. Hansen appealed, and the case was consolidated with his appeal from the denial of his second motion for a new trial.

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On March 12, 2007, Hansen filed a motion voluntarily dismissing his appeal from the denial of his second motion for a new trial, which was granted. With regard to Hansen's appeal of the dismissal of his application for post-conviction relief, the State, on June 4, 2007, filed a motion for remand. The Idaho Supreme Court granted the State's motion and remanded the case to the district court for purposes of providing Hansen with an opportunity to respond to the proposed dismissal of Hansen's claims of prosecutorial misconduct, ineffective assistance of counsel, and Fifth and Sixth Amendment violations, as well as consideration of Hansen's motion for appointment of counsel. The Court dismissed the appeal without prejudice.

While the consolidated cases were pending on appeal, Hansen filed a successive application for post-conviction relief on February 18, 2007. On April 2, 2007, the court issued its notice of intent to dismiss Hansen's application. Hansen filed a response to the court's order.

On remand of the original application for post-conviction relief, the post-conviction court appointed counsel to represent Hansen. The parties stipulated that a hearing was unnecessary and that their arguments would be submitted in writing. The parties also agreed that the only issues before the court were Hansen's claims of prosecutorial misconduct, ineffective assistance of counsel, and Fifth and Sixth Amendment violations. An order was entered pursuant to this stipulation. The parties then submitted briefing to the court. Indicating that it had reviewed the briefing, the original and successive applications, and the records of the underlying criminal case as well as the appeals, the court entered an order summarily dismissing all of Hansen's post-conviction claims. Hansen now appeals.


An application for post-conviction relief initiates a civil, rather than criminal, proceeding, governed by the Idaho Rules of Civil Procedure. State v. Yakovac, 145 Idaho 437, 443, 180 P.3d 476, 482 (2008); see also Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642, 646 (2008). Like the 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...

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