Henderson v. State
| Decision Date | 29 December 1992 |
| Docket Number | No. 19584,19584 |
| Citation | 844 P.2d 33,123 Idaho 51 |
| Parties | Bruce HENDERSON, Petitioner-Appellant, v. STATE of Idaho, Respondent. |
| Court | Idaho Court of Appeals |
Manweiler, Bevis & Cameron, Boise, for petitioner-appellant. Paul B. Butler, argued.
Larry EchoHawk, Atty. Gen., Thomas P. Watkins, Deputy Atty. Gen. (argued), for respondent.
The issue we are asked to address in this appeal is whether the district court erred in summarily dismissing Bruce Henderson's petition for post-conviction relief. We vacate the dismissal order, holding that the court erred because it failed to address Henderson's request for a court-appointed attorney to assist Henderson in the post-conviction proceeding.
In June, 1991, acting pro se, Henderson filed a verified petition for post-conviction relief from a 1986 judgment of conviction for lewd and lascivious conduct with a minor. He is presently serving an indeterminate life sentence. Henderson's petition alleges that he was represented by a public defender who provided him with ineffective assistance of counsel. He generally alleged six instances where the court or his counsel failed to perform their respective duties, resulting in a guilty plea that was not knowingly, voluntarily and intelligently entered and a sentencing hearing where he was prejudiced by the remarks of his own counsel. Seeking to have his judgment of conviction set aside, he asked for appointed counsel from other than the Ada County Public Defender's office, and he requested an evidentiary hearing where proof could be submitted in support of his allegations. The petition, although verified, was not accompanied by any "affidavits, records, or other evidence supporting its allegations" nor did the petition "recite why they [were] not attached," as required by I.C. § 19-4903.
Before the state responded to the petition, as it was required to do by I.C. § 19-4906, 1 the district court gave notice pursuant to I.C. § 19-4906(b) of its intention to dismiss the petition if Henderson did not make a satisfactory reply within twenty days. In its notice, the court addressed each of the grounds for relief which Henderson had stated in his petition. The court included or made reference to portions of transcripts of the 1986 arraignment and sentencing hearings which tended to rebut at least some of the allegations made by Henderson. However, the court never addressed Henderson's request for appointment of counsel.
Henderson responded to the notice of intended dismissal with a memorandum. The court, stating that "[n]othing in the memorandum establishes a right to post-conviction relief," subsequently entered an order dismissing the application. 2 Henderson then filed this appeal.
The dispositive issue in this appeal is whether the district court should have addressed Henderson's request for appointment of counsel before giving notice of its intention to dismiss the petition. Because we hold that it was error for the court to ignore the request, we do not decide whether the court ruled correctly on the merits of the claims in Henderson's petition.
The right of an indigent person to be represented by an attorney in bringing an action for post-conviction relief is conferred by I.C. § 19-4904. The statute provides that if the applicant is unable to pay the expenses of representation
"including stenographic, printing, witness fees and expenses, and legal services, these costs and expenses, and a court-appointed attorney shall be made available to the applicant in the preparation of the application, in the trial court, and on appeal, and paid, on order of the district court, by the county in which the application is filed." [Emphasis added.]
See also Quinlivan v. State, 94 Idaho 334, 487 P.2d 928 (1971).
In State v. Young, 122 Idaho 278, 833 P.2d 911 (1992), the Supreme Court relied upon I.C. § 19-852(b)(1) for its holding that Young was entitled to counsel at a probation revocation hearing. It was undisputed that Young was "needy" within the meaning of the statute, thus the Court did not address what a person who is claiming a right to an attorney at public expense must show. Although the issue of whether Henderson is "needy" is relevant to the determination of whether the court should appoint an attorney for him, the court did not reach this determination given that the court appeared to overlook Henderson's request for counsel. That same statute also establishes the right to counsel in a post-conviction proceeding. I.C. § 19-852(b)(3). 3
The state relies upon the principle that the burden to show indigency rests with the petitioner. Clearly a petitioner's burden to establish his indigency is a prerequisite to court appointed counsel pursuant to I.C. §§ 19-852(b)(3) and 19-4904. See Phillips v. State, 108 Idaho 405, 700 P.2d 27 (1985) (); see also Quinlivan v. State, supra (). Phillips could be interpreted to require that in all cases under I.C. § 19-4904, a petitioner must initially show indigency, or the opportunity to make such a showing is waived. 4
The state asserts that Phillips v. State, supra, supports the proposition that where Henderson failed to allege indigency, either in his petition or in a separate affidavit, he is not entitled to counsel. We do not think that Phillips is dispositive of this issue on appeal. First, Phillips requested transcripts which are (a) commonly not as expensive as an attorney and (b) arguably not as crucial, because once counsel is provided, often more relevant and cogent arguments are made by counsel regarding such issues as the need for transcripts. The converse is not true, however, in that once a petitioner has transcripts, he or she will not necessarily be empowered to demonstrate indigency and thus an entitlement to counsel. Moreover, in Phillips, the district court denied the motion and concluded that Phillips had not complied with I.C. § 19-4904. In this case, the court did not even address Henderson's request for counsel. Compare Quinlivan v. State, supra, (petitioner given opportunity to provide information regarding claimed indigency status, but refused).
It is preferable for a petitioner to support a request for appointed counsel with an affidavit of indigency. However, we...
To continue reading
Request your trial
-
Charboneau v. State
...on the substantive issues in the case." Id. See also Ortiz v. State, 124 Idaho 67, 856 P.2d 104 (Ct.App.1993); Henderson v. State, 123 Idaho 51, 844 P.2d 33 (Ct.App.1992). This Court observed in Brown v. State, 135 Idaho 676, 23 P.3d 138 (2001)1 As stated above, a needy applicant for post-c......
-
Follinus v. State
...proceedings prior to its amendment in 1993. 1 Lee v. State, 122 Idaho 196, 199, 832 P.2d 1131, 1134 (1992); Henderson v. State, 123 Idaho 51, 52, 844 P.2d 33, 34 (Ct.App.1992); Rodriguez v. State, 122 Idaho 20, 22, 830 P.2d 531, 533 (Ct.App.1992). As amended, Idaho Code Section 19-4904 no l......
-
Fox v. State
...before ruling on the substantive issues in the case. Ortiz v. State, 124 Idaho 67, 856 P.2d 104 (Ct.App.1993); Henderson v. State, 123 Idaho 51, 844 P.2d 33 (Ct.App.1992). It appears in this case that the district court never ruled on Fox's request for court-appointed counsel once the court......
-
Swisher v. State
...however, the court must act upon that request before ruling upon the substantive issues in the case. Henderson v. State, 123 Idaho 51, 53, 844 P.2d 33, 35 (Ct.App.1992). Consequently, we conclude that the district court committed error when it failed to rule upon Swisher's request for an ap......