Hughes v. State

• Decision Date: 14 October 2009
• Docket Number: No. 35132.,35132.
• Parties: Derrick Lawrence HUGHES, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

224 P.3d 515

Derrick Lawrence HUGHES, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 35132.

Court of Appeals of Idaho.

October 14, 2009.

Review Denied January 25, 2010.

Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Molly J. Huskey argued.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

GRATTON, Judge.

Derrick Lawrence Hughes appeals from the summary dismissal of his application for post-conviction relief. We affirm.

I. FACTS AND PROCEDURAL BACKGROUND

The State charged fifty-six-year-old Hughes, by indictment, with twenty-one counts arising from unlawful sexual conduct with sixteen-year-old P.M. Pursuant to a plea agreement, Hughes pled guilty to five counts of rape, Idaho Code § 18-6101(1), two counts of sexual battery of a minor, I.C. § 18-1508A, one count of disseminating material harmful to minors, I.C. § 18-1515(1)(a), and two counts of possession of sexually exploitive materials, I.C. § 18-1507A, with the State agreeing to dismiss the remaining counts. The State also agreed to recommend a unified sentence of life, with twenty-five years determinate, and Hughes was free to argue for whatever sentence he felt was appropriate.

Prior to sentencing, the sentencing court ordered a Psychosexual Evaluation (PSE) and a Presentence Investigation Report (PSI). As part of the PSE, Hughes also underwent a polygraph examination. At the sentencing hearing, Hughes requested leave to obtain a second PSE, which was denied. Hughes was sentenced to an aggregate unified term of life, with twenty-five years determinate. Hughes appealed, and this Court affirmed Hughes' judgment of conviction and sentence. State v. Hughes, 2005 Unpublished Opinion No. 633 (Ct.App. Oct. 26, 2005).

Thereafter, Hughes filed a pro se application for post-conviction relief claiming violations of his Fourth, Fifth, Sixth, and Fourteenth Amendment rights. Hughes also moved for appointment of counsel, which was granted. Hughes' counsel filed an amended application for post-conviction relief. The State moved for summary dismissal. After oral argument, the post-conviction court granted the State's motion. This appeal followed.

II. ANALYSIS

An application for post-conviction relief initiates a proceeding that is civil in nature. State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct.App.1992). Like a plaintiff in a civil action, the applicant must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. I.C. § 19-4907; Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct.App.1990). An application for post-conviction relief differs from a complaint in an ordinary civil action. An application must contain much more than "a short and plain statement of the claim" that would suffice for a complaint under I.R.C.P. 8(a)(1). Rather, an application for post-conviction relief must be verified with respect to facts within the personal knowledge of the applicant, and affidavits, records or other evidence supporting its allegations must be attached, or the application must state why such supporting evidence is not included with the application. I.C. § 19-4903. In other words, the application must present or be accompanied by admissible evidence supporting its allegations, or the application will be subject to dismissal.

Idaho Code § 19-4906 authorizes summary dismissal of an application for post-conviction relief, either pursuant to motion of a party or upon the court's own initiative. Summary dismissal of an application pursuant to I.C. § 19-4906 is the procedural equivalent of summary judgment under I.R.C.P. 56. Summary dismissal is permissible only when the applicant's evidence has raised no genuine issue of material fact that, if resolved in the applicant's favor, would entitle the applicant to the requested relief. If such a factual issue is presented, an evidentiary hearing must be conducted. Gonzales v. State, 120 Idaho 759, 763, 819 P.2d 1159, 1163 (Ct.App.1991); Hoover v. State, 114 Idaho 145, 146, 754 P.2d 458, 459 (Ct.App.1988); Ramirez v. State, 113 Idaho 87, 89, 741 P.2d 374, 376 (Ct.App.1987). Summary dismissal of an application for post-conviction relief may be appropriate, however, even where the State does not controvert the applicant's evidence because the court is not required to accept either the applicant's mere conclusory allegations, unsupported by admissible evidence, or the applicant's conclusions of law. Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct.App.1994); Baruth v. Gardner, 110 Idaho 156, 159, 715 P.2d 369, 372 (Ct. App.1986).

On review of a dismissal of a post-conviction relief application without an evidentiary hearing, we determine whether a genuine issue of fact exists based on the pleadings, depositions, and admissions together with any affidavits on file. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct.App.1993). In post-conviction actions, 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).

Hughes raises several issues in his application for post-conviction relief, all based upon assertions of ineffective assistance of counsel. A claim of ineffective assistance of counsel may properly be brought under the Uniform Post-conviction Procedure Act. Murray v. State, 121 Idaho 918, 924-25, 828 P.2d 1323, 1329-30 (Ct.App.1992). To prevail on an ineffective assistance of counsel claim, the defendant must show that the attorney's performance was deficient and that the defendant was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674, 693-94 (1984); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct. App.1995). To establish a deficiency, the applicant 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). To establish prejudice, the applicant must show a reasonable probability that, but for the attorney's deficient performance, the outcome of the trial would have been different. Aragon, 114 Idaho at 761, 760 P.2d at 1177.

Hughes first claims that trial counsel was ineffective for failing to be present during the PSE. Second, Hughes contends that trial counsel was ineffective in failing to move to suppress the PSE because the polygraph results, which were incorporated into the PSE, were obtained in violation of Hughes' Fifth Amendment right to counsel. Third, Hughes argues that the district court erred in dismissing his claim that his counsel was ineffective for failing to ensure that Hughes received Miranda¹ warnings prior to his participation in the PSI. Fourth, Hughes asserts that his attorney was ineffective for failing to obtain an independent, confidential psychosexual evaluation prior to sentencing. Fifth, Hughes claims that his trial counsel was ineffective in failing to move to suppress the results of the polygraph test. Sixth, Hughes argues that while the district court correctly determined that Hughes' trial counsel was deficient for failing to advise Hughes regarding his rights relative to the PSE, the district court erred in its analysis of the prejudice prong.

A. Ineffective Assistance of Counsel—Sixth Amendment Right to the Physical Presence of Counsel at the PSE and Polygraph.

Hughes claims that his attorney was ineffective because he was not present during the PSE and polygraph. Hughes argues that the Sixth Amendment guarantees the right to the effective assistance of counsel during all phases of a PSE and that the assistance of counsel necessarily includes the presence of counsel. He further asserts that a Sixth Amendment right to the presence of counsel during all phases of the PSE is necessary in order to protect his Fifth Amendment rights against self-incrimination.

The Sixth Amendment to the United States Constitution and Article I, § 13 of the Idaho Constitution, guarantee a criminal defendant the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674, 691-92 (1984); Ivey v. State, 123 Idaho 77, 80, 844 P.2d 706, 709 (1992); Aragon v. State, 114 Idaho 758, 760-61, 760 P.2d 1174, 1176-77 (1988). This right extends to all "critical stages" of the adversarial proceedings against a defendant. United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 1931, 18 L.Ed.2d 1149, 1156 (1967); Estrada v. State, 143 Idaho 558, 562, 149 P.3d 833, 837 (2006). As set forth by the Idaho Supreme Court in Estrada:

In determining whether a particular stage is critical, it is necessary to analyze whether potential substantial prejudice to defendants rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice. Wade, 388 U.S. at 227, 87 S.Ct. at 1932, 18 L.Ed.2d at 1157.

Estrada, 143 Idaho at 562, 149 P.3d at 837. "[I]f the stage is not critical, there can be no constitutional violation, no matter how deficient counsel's performance." United States v. Benlian, 63 F.3d 824, 827 (9th Cir.1995); see Estrada, 143 Idaho at 562, 149 P.3d at 837. Therefore, we must first address whether the PSE is a critical stage.

In Estrada, the Court held that the Sixth Amendment guaranteed the right to the assistance of counsel for advice regarding participation in a PSE. Id. Hughes asserts that in order for the Estrada Court to have recognized a Sixth Amendment right to the advice of counsel, it must have...