Hoffman v. State
| Decision Date | 03 February 1994 |
| Docket Number | No. 20342,20342 |
| Citation | 125 Idaho 188,868 P.2d 516 |
| Parties | Dale Patrick HOFFMAN, Petitioner-Appellant, v. STATE of Idaho, Respondent. |
| Court | Idaho Court of Appeals |
Larry EchoHawk, Atty. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for respondent.
Dale Patrick Hoffman appeals from the district court's denial of his application for post-conviction relief. The district court summarily dismissed all but two claims in Hoffman's application. Following an evidentiary hearing, the district court denied relief on the two remaining issues. We affirm.
Hoffman was charged on December 6, 1985, with three counts of robbery, I.C. § 18-6501, and three counts of use of a firearm during the commission of a crime, I.C § 19-2520. A jury trial was held in June and July of 1986. At the conclusion of the trial, the jury found Hoffman guilty of two counts of robbery and two counts of use of a firearm during the commission of a crime. Hoffman filed a motion for new trial on July 16, 1986, alleging, primarily, ineffective assistance of counsel. Following an evidentiary hearing, the district court denied the motion for new trial.
Hoffman was sentenced to two concurrent indeterminate terms of twelve years for robbery enhanced by five years for the use of a firearm, for an aggregate term of seventeen years. Hoffman filed a direct appeal and a motion for reduction of sentence pursuant to I.C.R. 35. The district court denied the rule 35 motion. This Court affirmed the district court's denial of Hoffman's motion for a new trial and also affirmed the district court's judgment and sentences. See State v. Hoffman, 116 Idaho 689, 778 P.2d 811 (Ct.App.1989).
Subsequently, Hoffman filed an application for post-conviction relief. The district court summarily dismissed all but two claims. Following an evidentiary hearing, the district court denied Hoffman's request for relief on the remaining two claims. Hoffman now appeals, alleging the following errors: (1) the district court erred in summarily dismissing the application based on the inadvertent testimony of Hoffman's brother as to Hoffman's status as a "convicted felon;" (2) the district court erred in summarily dismissing Hoffman's application based on the prosecution's failure to disclose two witnesses prior to their testifying at trial; (3) the district court erred in summarily dismissing Hoffman's application based on the claims of ineffective assistance of counsel; (4) whether, following the hearing, the district court properly denied Hoffman's application based on a recantation by Shawn Patoray; and (5) whether, following the hearing, the district court properly denied Hoffman's application based on the "newly discovered" alibi witness Larry Black.
Idaho Code § 19-4906(b) provides that the district court may dismiss an application for post-conviction relief unless the application contains allegations which, if proved, would entitle the applicant to the remedy sought. Griffith v. State, 121 Idaho 371, 825 P.2d 94 (Ct.App.1992). Allegations in an application for post-conviction relief must be deemed to be true until those allegations are controverted by the state. King v. State, 114 Idaho 442, 757 P.2d 705 (Ct.App.1988). On review of a dismissal of the post-conviction application, without an evidentiary hearing, we will determine whether a genuine issue of fact exists based on the pleadings, depositions and admissions on file, together with any affidavits on file. Moreover, the court will liberally construe the facts in favor of the party opposing the motion, together with all reasonable inferences to be drawn from the evidence in favor of the non-moving party. Loomis v. City of Hailey, 119 Idaho 434, 436, 807 P.2d 1272, 1274 (1991); Bonz v. Sudweeks, 119 Idaho 539, 808 P.2d 876 (1991); Mitchell v. Siqueiros, 99 Idaho 396, 582 P.2d 1074 (1978).
Preliminarily, this Court has recognized that the Uniform Post-Conviction Procedure Act, I.C. §§ 19-4901--19-4911, provides an appropriate mechanism for considering claims of ineffective assistance of counsel. Nellsch v. State, 122 Idaho 426, 835 P.2d 661 (Ct.App.1992). The Act is available "to cure fundamental errors occurring at the trial which affect either the jurisdiction of the court or the validity of the judgment, even though these errors could have been raised on appeal." Maxfield v. State, 108 Idaho 493, 499, 700 P.2d 115, 121 (Ct.App.1985), quoting Smith v. State, 94 Idaho 469, 474-75, 491 P.2d 733, 738-39 (1971). The Act, however, cannot be otherwise used as a substitute for an appeal, and any issue which could have been, but was not, raised on direct appeal is forfeited and cannot be considered in a post-conviction proceeding. I.C. § 19-4901(b); Murray v. State, 121 Idaho 918, 828 P.2d 1323 (Ct.App.1992). Here, the district court concluded that both the challenge to the inadvertent prior conviction testimony and the allegation of failure to disclose witnesses prior to trial could have been raised on a direct appeal. We agree. Because these matters should have been raised on Hoffman's direct appeal, we refuse to consider them in an application for post-conviction relief. Therefore, the district court did not err in summarily dismissing Hoffman's application based on the inadvertent testimony of his brother and the prosecution's alleged failure to disclose witnesses prior to trial.
Similarly, the district court concluded that Hoffman's claim of ineffective assistance of counsel was also barred because it was considered on a direct appeal. The district court noted in its order of partial dismissal that:
... petitioner is quite correct in noting that this issue is usually addressed in post conviction review proceedings, and is usually not part of the record for review on direct appeal. He is correct that when an attempt is made to raise the issue on direct appeal where a record has not been made before the trial court, the appellate courts usually decline to consider the issue, deferring the issue until a record is presented through post conviction proceedings.
However, in this case, the proceedings were an exception to the rule. In this case, the defendant filed a motion for new trial after the jury verdict, advancing as grounds for that motion the ineffective assistance of his trial counsel. This motion was heard, testimony was introduced, and a ruling was made. Therefore, there was a record for review on [t]he allegations of inadequate assistance of counsel. Petitioner perfected his direct appeal and it was argued to and decided by the court of appeals.
We agree and, as cited by the district court, note that the Idaho Supreme Court has held in Parrott v. State, 117 Idaho 272, 787 P.2d 258 (1990), that Id at 274, 787 P.2d at 260. In Parrott, like the case before us, Hoffman filed a post-verdict motion for a new trial alleging ineffective assistance of counsel. Although the Supreme Court in Parrott determined that the ineffective assistance claim should be heard as part of the post-conviction application, it was only because the appeal had been withdrawn. In Hoffman's case, however, the claim of ineffective assistance of counsel was raised, and decided, on a direct appeal. Therefore, the issue having been raised in the motion for a new trial, and reviewed on appeal, is res judicata and will not be reconsidered here.
In addition, though Hoffman now claims that these issues were not raised in the prior proceeding, he has failed to provide us with the record and transcript of his motion for new trial and his direct appeal. The transcript of a portion of the hearing on Hoffman's motion for new trial was attached to the state's brief submitted to the trial court. It included the testimony of Hoffman's trial counsel on the issue of ineffective assistance. However, since it was not marked as an exhibit and introduced into evidence, it is not automatically included in this record for appeal.
Review of that transcript would be necessary for us to assess Hoffman's contention that the present claims of ineffective assistance were not asserted in his motion for a new trial. However, Hoffman has not provided that transcript as a part of...
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