Huck v. State, 20084

• Decision Date: 29 July 1993
• Docket Number: No. 20084,20084
• Citation: 124 Idaho 155,857 P.2d 634
• Parties: Robert D. HUCK, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

Page 634

857 P.2d 634

124 Idaho 155

Robert D. HUCK, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 20084.

Court of Appeals of Idaho.

July 29, 1993.

Michael G. Pierce, Cascade, for appellant.

Larry EchoHawk, Atty. Gen., Thomas P. Watkins, Deputy Atty. Gen., Boise, for respondent.

LANSING, Judge.

Robert Huck pled guilty and was convicted in 1989 of felony possession of a Schedule II controlled substance with intent to deliver in violation of Idaho Code § 37-2732(a)(1)(A). He later filed an application for post-conviction relief pursuant to I.C. [124 Idaho 157] *636s 19-4901 on grounds that his guilty plea was the product of ineffective assistance of counsel and coercion. The district court dismissed the application for post-conviction, and Huck appeals from that dismissal. We affirm.

On September 4, 1989, Huck was observed and tape-recorded while selling methamphetamine to a police informant. Later that day, the police obtained a warrant to search Huck's home. The search turned up, among other things, ten bindles of methamphetamine. Huck was arrested and charged with one count of possession of a Schedule II controlled substance with intent to deliver and one count of manufacturing a Schedule II controlled substance, I.C. § 37-2732(a). The prosecution also charged Huck with being a persistent violator subject to an enhanced penalty under I.C. § 19-2514. Huck was represented by counsel throughout the proceedings.

On December 29, 1989, Huck signed a written agreement by which he agreed to plead guilty to possession with intent to deliver. In return, the prosecution agreed to dismiss the manufacturing charge and the request for an enhanced penalty, and to recommend an aggregate sentence of ten years' incarceration with three years fixed and seven years indeterminate. The court accepted Huck's guilty plea and imposed the sentence recommended by the prosecutor. On Huck's initial appeal, we affirmed the sentence. State v. Huck, 119 Idaho 10, 802 P.2d 1222 (Ct.App.1990).

Approximately one and one-half years after his conviction, Huck filed an application for post-conviction relief seeking to set aside the conviction on grounds that his guilty plea was the result of both ineffective assistance of counsel and coercion. After an evidentiary hearing, the district court dismissed the petition. Huck now appeals that order.

I

We consider first Huck's contention that his guilty plea resulted from ineffective assistance of his former counsel. The alleged deficiency of counsel upon which he predicates this claim was his attorney's failure to pursue a motion to suppress the evidence found by police during execution of the warrant. Huck contends his attorney should have sought suppression because the search warrant was defective in that it incorrectly described the location of Huck's residence. He also maintains that the bindles of methamphetamine should have been suppressed because they were allegedly found inside a pickup truck that the warrant did not authorize the police to search. Huck's attorney did file a motion to suppress the evidence but did not await a decision on the motion from the court before advising Huck to plead guilty. Huck asserts that his attorney's failure to pursue the motion to suppress before advising Huck to plead guilty represents such incompetence as to constitute ineffective assistance of counsel because it deprived him of the ability to make a fully informed decision on whether to plead guilty.

Huck's application for post-conviction relief initiated a separate proceeding which is civil in nature. State v. Bearshield, 104 Idaho 676, 662 P.2d 548 (1983). Huck bore the burden of proving by a preponderance of evidence the allegations upon which his request for relief is based. Russell v. State, 118 Idaho 65, 794 P.2d 654 (Ct.App.1990); Pierce v. State, 109 Idaho 1018, 712 P.2d 719 (Ct.App.1985). On appeal we review the district court's factual findings to determine whether they are clearly erroneous. Russell, 118 Idaho at 67, 794 P.2d at 656. We give free and independent review, however, to the district court's application of law. Nellsch v. State, 122 Idaho 426, 434, 835 P.2d 661, 669 (Ct.App.1992).

The right to representation by counsel afforded by the Sixth Amendment to the United States Constitution includes the right to be represented by reasonably competent counsel in an adequate fashion. Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984); Aragon v. State, 114 Idaho 758, 760 P.2d 1174 (1988). It means that an accused is entitled to the reasonably competent assistance of a diligent, conscientious advocate. State v. Tucker, 97 Idaho 4, 8, 539 P.2d 556, 560 (1975).

An applicant who alleges ineffective assistance of counsel must meet a two-level test. The applicant must prove, first, that counsel's performance was deficient and, second, that the applicant was prejudiced by the deficiency. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. To establish that counsel's representation has been so deficient as to render it ineffective, the petitioner must show that counsel's performance fell below a standard of "competence demanded of attorneys in criminal cases." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The petitioner must overcome a presumption that counsel was competent.

Because of the distorting effects of hindsight in reconstructing the circumstances of counsel's challenged conduct, there is a strong presumption that counsel's performance was within the wide range of reasonable professional assistance--that is, "sound trial strategy."

Russell, 118 Idaho at 67, 794 P.2d at 656. To prove prejudice the petitioner must show a reasonable probability that, but for the attorney's inadequate performance, the outcome of the proceeding would have been different. Davis v. State, 116 Idaho 401, 775 P.2d 1243 (Ct.App.1989). Questions of the adequacy of counsel are mixed questions of law and fact. Strickland, 466 U.S. at 698, 104 S.Ct. at 2070.

The standards articulated above, although more frequently applied to conduct at trial, have equal applicability to the entry of a guilty plea. "Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases." Griffith v. State, 121 Idaho 371, 373, 825 P.2d 94, 96 (Ct.App.1992). See also State v. Soto, 121 Idaho 53, 55, 822 P.2d 572, 574 (Ct.App.1991); Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).

When considering whether an attorney's failure to file or pursue a motion to suppress or strike evidence constitutes incompetent performance, the court is required to examine the probability of success of such a motion in order to determine whether counsel's decision against pressing the motion was within the wide range of permissible discretion and sound trial strategy. In Carter v. State, 108 Idaho 788, 794-795, 702 P.2d 826, 832-33 (1985), the Idaho Supreme Court held that counsel's failure to move to suppress the defendant's confession constituted ineffective assistance because it was obvious that the confession would have been suppressed. In Maxfield v. State, 108 Idaho 493, 501, 700 P.2d 115, 123 (Ct.App.1985), we held that newly appointed counsel's failure to renew a motion to suppress was not deficient, since previous counsel had been unsuccessful on the same motion and no new grounds existed. Because it was clear that the new motion would have been denied as well, counsel's failure to make the motion was not deficient. See also, Davis v. State, 116 Idaho 401, 406, 775 P.2d 1243, 1248 (Ct.App.1989), (counsel's failure to timely file a motion to suppress evidence seized from defendant's home was not deficient because defendant had failed to show that the items would have been suppressed); State v. Youngblood, 117 Idaho 160, 165, 786 P.2d 551, 556 (1990) (failure to move to suppress items seized was not error where items were obviously subject to plain view exception to exclusionary rule); State v. Walters, 120 Idaho 46, 56, 813 P.2d 857, 867 (1991) (failure of counsel to object to inadmissible opinion testimony was ineffective assistance.)

As noted above, in order to prevail on a claim of ineffective assistance of counsel an applicant must meet a two-pronged test. The applicant must show both that counsel's performance was deficient and that the deficiency prejudiced the applicant. Where the alleged deficiency is counsel's failure to file a suppression motion, a conclusion that the motion, if pursued, would not have been granted, is generally determinative of both prongs of the test. If the motion lacked merit and would have been denied, counsel ordinarily would not be deficient for failing to pursue it, and, concomitantly, the petitioner could not have been prejudiced by the want of its pursuit.

In the instant case Huck first argues that he would have prevailed upon the merits of a suppression motion because the warrant upon which the search of his house and vehicle was based incorrectly described the location of the house. The warrant described the premises to be searched as, "The two story, light green, wood framed dwelling with a dark green garage separate from the dwelling. The dwelling & garage are located 1.7 miles west of State of Idaho Highway 55 on Roseberry (west) Rd. on the south side. The dwelling is occupied by Robert and Denise Huck." At the hearing on his application for post-conviction relief Huck established that the most accurate description of the place at which he resided was .6 miles on Irwin Lane. The state concedes that Huck's actual address was technically on Irwin Lane. However, the state presented evidence that Irwin Lane is simply an extension of West Roseberry Road and that the house described in the warrant is 1.7 miles west of state...