Herrera v. State
| Decision Date | 25 March 2016 |
| Docket Number | Docket No. 42351,2016 Unpublished Opinion No. 447 |
| Parties | VALENTINO ALEX HERRERA, Petitioner-Appellant, v. STATE OF IDAHO, Respondent. |
| Court | Idaho Court of Appeals |
Stephen W. Kenyon, Clerk
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Cassia County. Hon. Michael R. Crabtree, District Judge.
Judgment summarily dismissing petition for post-conviction relief, affirmed.
Silvey Law Office, Ltd.; Greg S. Silvey, Star, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.
____________________
Valentino Alex Herrera appeals from the district court's judgment summarily dismissing his petition for post-conviction relief. For the reasons set forth below, we affirm.
In the underlying criminal action, Herrera was charged with battery on a peace officer and the persistent violator sentencing enhancement. Herrera and the victim, a former sheriff's deputy and bailiff, were both incarcerated for unrelated criminal charges. While the victim was wiping down tables after breakfast, he moved Herrera's coffee cup, angering Herrera, who commented to another inmate that the victim had previously "put [Herrera] in prison" and "cost [Herrera] five years." Herrera threw hot coffee in the victim's face, hit him in the face with the coffee mug, punched him in the face, and gouged his eye. During the altercation, Herrera called the victim a "narc cop." A jury found Herrera guilty of the charges and he appealed. Herrera's judgment of conviction was affirmed by this Court in State v. Herrera, 152 Idaho 24, 266 P.3d 499 (Ct. App. 2011).
Herrera filed a pro se petition for post-conviction relief, alleging numerous claims for relief, including various claims of ineffective assistance of counsel. The district court granted the State's motion for summary disposition and summarily dismissed all of Herrera's claims. Herrera timely appeals.
A petition for post-conviction relief initiates a proceeding that is civil in nature. Idaho Code § 19-4907; Rhoades v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009); State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct. App. 1992). Like a plaintiff in a civil action, the petitioner must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002). A petition for post-conviction relief differs from a complaint in an ordinary civil action. Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004). A petition must contain much more than a short and plain statement of the claim that would suffice for a complaint under Idaho Rules of Civil Procedure 8(a)(1). Rather, a petition for post-conviction relief must be verified with respect to facts within the personal knowledge of the petitioner, and affidavits, records, or other evidence supporting its allegations must be attached or the petition must state why such supporting evidence is not included with the petition. I.C. § 19-4903. In other words, the petition must present or be accompanied by admissible evidence supporting its allegations or the petition will be subject to dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011).
Idaho Code § 19-4906 authorizes summary dismissal of a petition for post-conviction relief, either pursuant to a motion by a party or upon the court's own initiative, if it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. When considering summary dismissal, the district court must construe disputed facts in the petitioner's favor, but the court is not required to accept either the petitioner's mere conclusory allegations, unsupported by admissible evidence, or the petitioner's conclusions of law. Roman v. State, 125 Idaho 644, 647, 873 P.2d898, 901 (Ct. App. 1994); Baruth v. Gardner, 110 Idaho 156, 159, 715 P.2d 369, 372 (Ct. App. 1986). Moreover, the district court, as the trier of fact, is not constrained to draw inferences in favor of the party opposing the motion for summary disposition; rather, the district court is free to arrive at the most probable inferences to be drawn from uncontroverted evidence. Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). Such inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify them. Id.
Claims may be summarily dismissed if the petitioner's allegations are clearly disproven by the record of the criminal proceedings, if the petitioner has not presented evidence making a prima facie case as to each essential element of the claims, or if the petitioner's allegations do not justify relief as a matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281 (2010); DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary dismissal of a claim for post-conviction relief is appropriate when the court can conclude, as a matter of law, that the petitioner is not entitled to relief even with all disputed facts construed in the petitioner's favor. For this reason, summary dismissal of a post-conviction petition may be appropriate even when the State does not controvert the petitioner's evidence. See Roman, 125 Idaho at 647, 873 P.2d at 901.
Conversely, if the petition, affidavits, and other evidence supporting the petition allege facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be summarily dismissed. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004); Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). If a genuine issue of material fact is presented, an evidentiary hearing must be conducted to resolve the factual issues. Goodwin, 138 Idaho at 272, 61 P.3d at 629.
On appeal from an order of summary dismissal, we apply the same standards utilized by the trial courts and examine whether the petitioner's admissible evidence asserts facts which, if true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925, 929 (2010); Sheahan, 146 Idaho at 104, 190 P.3d at 923. Over questions of law, we exercise free review. Rhoades, 148 Idaho at 250, 220 P.3d at 1069; Downing v. State, 136 Idaho 367, 370, 33 P.3d 841, 844 (Ct. App. 2001).
A claim of ineffective assistance of counsel may properly be brought under the Uniform Post-Conviction Procedure Act. Murray, 121 Idaho at 924-25, 828 P.2d at 1329-30. To prevail on an ineffective assistance of counsel claim, the petitioner must show that the attorney'sperformance was deficient and that the petitioner was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct. App. 1995). To establish a deficiency, the petitioner 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). 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).
However, in limited circumstances, prejudice may be presumed when the "circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." Zepeda v. State, 152 Idaho 710, 713, 274 P.3d 11, 14 (Ct. App. 2012) (quoting United States v. Cronic, 466 U.S. 648, 658 (1984)). The United States Supreme Court has identified those circumstances as the following: (1) where there is a "complete denial" of counsel at a critical stage of trial; (2) where "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing"; and (3) where, "although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate." Id. (quoting Cronic, 466 U.S. at 658-60).
Herrera argues that the district court erred in summarily dismissing his claim that he was denied effective assistance of counsel at a critical stage of his criminal proceedings, specifically, the initial appearance and district court arraignment. His petition asserts that he did not have counsel until his preliminary hearing. Then, in one of his sworn affidavits, he more specifically contends that he was "present, without counsel, for the first district court arraignment," at which point the court scheduled the entry of plea.
The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to counsel during all critical stages of the adversarial proceedings against him or her. Estrada v. State, 143 Idaho 558, 562, 149 P.3d 833, 837 (2006) see also United States v. Wade,388 U.S. 218, 224 (1967). A defendant's right to effective assistance of counsel extends to all critical stages of the prosecution where his or her substantial rights may be affected. Estrada, 143 Idaho at 562, 149 P.3d at 837. In determining whether a particular stage is critical, it is necessary to analyze whether potential substantial prejudice to the defendant's rights inheres in the particular...
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