Hollon v. State
| Decision Date | 08 March 1999 |
| Docket Number | No. 23861,23861 |
| Citation | 976 P.2d 927,132 Idaho 573 |
| Parties | Rick G. HOLLON, Petitioner-Appellant, v. STATE of Idaho, Respondent. Twin Falls, November 1998 Term |
| Court | Idaho Supreme Court |
John A. Olson, Twin Falls County Public Defender; Paul E. Riggins, Deputy Public Defender, Twin Falls, for appellant. Paul E. Riggins argued.
Hon. Alan G. Lance, Attorney General; Kenneth M. Robins, Deputy Attorney General, Boise, for respondent. Kenneth M. Robins argued.
This is an appeal from the district court's order denying Rick G. Hollon's (Hollon) claims for post-conviction relief following an evidentiary hearing. We affirm the district court.
On or about February 27, 1994, Hollon drove past the home of Julie Fender (Fender) in Filer, Idaho. Hollon then left to get a 12-gauge shotgun and then returned to Fender's residence. After waiting and watching outside Fender's home for two hours, Hollon entered her home by crawling though a window with the loaded 12-gauge shotgun. Hollon entered Fender's bedroom, turned on the lights and found Fender in bed with Richard Thompson (Thompson). Hollon pointed the 12-gauge shotgun at the wall above Fender and Thompson's heads and discharged the shotgun, blowing a hole in the wall above their heads as they laid in bed. For approximately three hours, Hollon remained in Fender's bedroom and conversed with the two victims. Hollon talked about his problems and stated that he wanted Thompson to leave Fender alone because she was his "property." The victims ultimately convinced Hollon that Thompson would no longer be at Fender's home, that Fender would reunite with Hollon and that she would call him after work that day if he would put down the shotgun and leave. Hollon eventually left Fender's home but was later arrested and charged with burglary, two counts of aggravated assault with a deadly weapon and two counts of kidnaping in the first degree.
Sometime in March of 1994, Hollon hired Keith Roark, Esq., (Roark) to represent him. During discussions on how to proceed with the case, Roark presented Hollon with a plea agreement Roark had negotiated with the prosecuting attorney. Initially, Hollon agreed to accept the plea agreement but later changed his mind. Upon learning that Hollon was not willing to accept the plea agreement but wanted to proceed to trial, Roark informed Hollon that he would not represent him in a trial, believing that if Hollon went to trial, he would likely spend the remainder of his life in prison. The next time Roark visited Hollon, Hollon had again changed his mind and wanted to accept the plea agreement. In July of 1994, Hollon pled guilty to one count of assault, one count of kidnaping and one count of an extended sentence for use of a firearm or a deadly weapon. Hollon was sentenced to a five year determinate period and ten years indeterminate, not to exceed fifteen years.
Hollon filed a petition for post-conviction relief on August 30, 1995 and later an amended petition for post-conviction relief on January 7, 1997. Hollon asserted ineffective assistance of counsel and that the district court had failed to properly apply the requirements of I.C. § 19-2523 in imposing judgment and sentence upon him. After an evidentiary hearing on the post-conviction issues and briefing by the parties, the district court entered an order denying both of Hollon's claims. Hollon now appeals to this Court asserting that the district court erred in denying his post-conviction relief petition. 1
Hollon asserts that his defense counsel provided ineffective assistance on approximately four different grounds. The district court found that there had been effective assistance on each of the grounds. We affirm the district court as to each of Hollon's claims of ineffective assistance of counsel.
To demonstrate ineffective assistance of counsel, Hollon must show that: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). To demonstrate that counsel's performance was deficient, Hollon must show that his counsel's advice was not "within the range of competence demanded of attorneys in criminal cases." Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985). There is a "strong presumption that counsel's conduct falls within the wide range of acceptable professional assistance...." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. In order to satisfy the prejudice requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pled guilty and would have insisted on going to trial. Hill, 474 U.S. at 59, 106 S.Ct. at 370. The burden is on the defendant to prove a claim of ineffective assistance of counsel. Aragon, 114 Idaho at 761, 760 P.2d at 1177.
Lastly, when evaluating an ineffective assistance of counsel claim, strategic and tactical choices should not be second-guessed. Id. It is presumed that counsel is competent and that trial tactics were based on sound legal strategy. Id.
In an appeal from an ineffective assistance of counsel claim, the appellate court reviews the district court's factual findings to determine whether they were clearly erroneous. State v. Wood, 132 Idaho 88, 95, 967 P.2d 702, 709 (1998). The reviewing court, however, exercises free and independent review of the district court's application of law. Id.
Hollon's main complaint is that, after Hollon informed Roark that he wanted to proceed to trial, Roark threatened to withdraw, therefore coercing his guilty plea and rendering it invalid. Hollon also asserts that because of his inexperience with the criminal justice system, he was unable to explain to the judge at the plea hearing that he felt coerced into entering a guilty plea by counsel's threats of withdrawal. The record clearly indicates that Hollon's counsel told him he would withdraw if Hollon went to trial. However, the hearing on the change of plea also demonstrates that Hollon was given ample opportunity to express whether he felt coerced into entering the plea. 2
Hollon does not support his allegations of ineffective assistance with anything beyond the threat of counsel to withdraw and his inexperience with the criminal justice system. For instance, he does not assert that there was insufficient time for a new attorney to be appointed who could adequately represent him at trial or that Roark did not make him aware that new counsel could be appointed. Hollon's main contention appears to be that he wanted his chosen attorney to represent him at trial and if his attorney was not willing to do so, he was prepared to forego his right to a trial. 3
Someone in Hollon's position might feel that they were being abandoned by counsel upon whom they had come to trust and depend. However, in a situation such as this one, if counsel feels that they cannot support a client's choice, that counsel should be allowed to withdraw, without then rendering a client's subsequent decision to enter into a guilty plea, involuntary. Additionally, Hollon's inexperience with the criminal justice system should not excuse his unwillingness to state at his plea hearing that he felt coerced by Roark's threats. The district court clearly explained to Hollon that the decision must be his own. Hollon does not indicate that he had been told by Roark that he was not to mention the threat to withdraw. Instead he admitted at the evidentiary hearing that
As the Fifth Circuit Court of Appeals stated in a similar case:
We have here an attorney who on the record is acting in good faith and affording sound representation when he decides that a client should plead guilty under a plea bargain. The client indicates doubt. Without question, the attorney has the right to ask the court to allow him to withdraw as counsel and have another counsel appointed if the client refuses to plead. He has given his best advice. He thinks the insistence of his client that the case go to trial is foolhardy. He has done what he can, and he wants to ask to be relieved so that another attorney more sympathetic to trial be appointed in his stead. Having that right, whether or not the court in its discretion would grant the request, it would be improper and unethical not to warn his client that this was the course of conduct he would follow if the client refused to accept the plea bargain. Withholding this information would withhold a material and significant fact from the accused when the accused was undertaking to decide whether or not to accept the plea bargain.
Uresti v. Lynaugh, 821 F.2d 1099, 1102 (5th Cir.1987) (citations omitted).
Hollon's counsel gave him ample opportunity to find substitute counsel. Similarly, the district judge gave Hollon the opportunity to state that he felt coerced. Roark's threat to withdraw does not fall outside of the range of competence demanded of attorneys in criminal cases. In fact, honesty with the client under such circumstances is essential. By warning Hollon that he would not be able to represent him if he decided to go to trial, Roark was merely alerting Hollon to the fact he was not the right person for the job and that if Hollon wanted someone "more sympathetic to trial," another attorney would need to be appointed. As such, we uphold the district court's finding that Hollon has not met the first prong of the test requiring that he show some deficiency in counsel's performance and, therefore, we need not address the second prong of the test, prejudice.
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