Ivey v. State, 19644

• Decision Date: 31 December 1992
• Docket Number: No. 19644,19644
• Citation: 844 P.2d 706,123 Idaho 77
• Parties: Benjamin David IVEY, Petitioner-Appellant, v. STATE of Idaho, Respondent. Boise, November 1992 Term
• Court: Idaho Supreme Court

Page 706

844 P.2d 706

123 Idaho 77

Benjamin David IVEY, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 19644.

Supreme Court of Idaho,

Boise, November 1992 Term.

Dec. 31, 1992.

Rehearing Denied Jan. 27, 1993.

[123 Idaho 78] G. Lamarr Kofoed, Fruitland, for petitioner-appellant.

Larry EchoHawk, Atty. Gen. and Lynn E. Thomas, Deputy Atty. Gen., argued, Boise, for respondent.

McDEVITT, Justice.

STATEMENT OF THE CASE

On May 20, 1991, the petitioner, Benjamin David Ivey, was sentenced to death by the district court for the first degree murder of Marlene Friesen. Immediately following sentence, the public defender, Mr. Van Bishop, filed a petition for post-conviction relief on behalf of petitioner. The trial court subsequently appointed Lamarr Kofoed to represent Ivey on the petition, because the basis of the petition was a claim of ineffective assistance of counsel. Mr. Kofoed filed an amended petition on August 1, 1991. The State's response, filed August 23, 1991, denied all allegations and requested summary dismissal of the petition, emphasizing the lack of any factual Petitioner entreats this Court to vacate the conviction and sentence, and to grant a new trial with newly appointed defense counsel.

[123 Idaho 79] support. On August 28, 1991, the trial court petitioned this Court for an extension of time in order to dispose of the post-conviction proceedings. Ivey then filed a supporting affidavit setting out with some specificity what he intended to prove at the hearing to demonstrate the lack of proper representation at trial. Ivey alleges that the public defender, Mr. Bishop, failed to effectively represent petitioner's interest in his preparation for, and his conduct at trial. Specifically, petitioner asserts that Mr. Bishop failed to vigorously cross-examine the State's witnesses, allowed perjured testimony to go unchallenged, intentionally refused to use available rebuttal evidence and witnesses, and failed to vigorously investigate evidence that may have led to the true murderer. Moreover, the petitioner contends that Mr. Bishop went against his wishes, attempting to portray him as having a mental defect at the sentencing hearing. Mr. Bishop filed a supporting affidavit concerning his representation of Ivey. All of Ivey's contentions relating to trial counsel's performance are answered by Mr. Bishop's affidavit, explaining that each act complained of related to a strategic judgment about the validity of evidence or the credibility of witnesses. Bishop also asserted that he had avoided extensive cross-examination of a certain witness because he did not wish to develop information damaging to petitioner's case. Furthermore, Bishop elected not to call the "available defense witnesses" after determining that their testimony would not be favorable to petitioner. Bishop's investigation of petitioner's alibi witnesses revealed that they would not testify as Ivey claimed. Shortly after the affidavits were filed, petitioner requested a hearing on his petition. The court responded by an order of dismissal filed October 21, 1991, holding that petitioner had not made the showing required by Drapeau v. State, 103 Idaho 612, 651 P.2d 546 (Ct.App.1982). ¹

I. STANDARD OF REVIEW

A petition for post-conviction relief is in the nature of a civil proceeding, entirely new and distinct from the underlying criminal action. Peltier v. State, 119 Idaho 454, 808 P.2d 373 (1991). Idaho Code § 19-4906(c) governs the situation in which summary disposition of a petition for post-conviction relief is appropriate. ² In Peltier v. State, 119 Idaho 454, 808 P.2d 373 (1991), this Court read section (b) as requiring the court to notify of its intent to dismiss under the facts of that case. Failure to notify the petitioner of the court's intent to dismiss required that an order dismissing the petition be reversed. Peltier, 119 Idaho at 456-57, 808 P.2d at 375-76. However, where a party moves to dismiss the petition without a hearing, the 20-day notice is not required. See State v. Christensen, 102 Idaho 487, 488, 632 P.2d 676, 677 (1981) (section (b) governs only those situations where the trial court on its own initiative determines to dismiss the petition).

In order to warrant a hearing for a petition for post-conviction relief based on a claim of ineffective assistance of counsel, a claimant must first show that a material issue of fact exists as to whether counsel's performance was deficient. Second, a claimant must show that a material issue of fact exists as to whether this deficient performance prejudiced his case. Parrott v. State, 117 Idaho 272, 275, 787 P.2d 258, 261 (1990), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Charboneau, 116 Idaho 129, 137, 774 P.2d 299, 307 (1989); Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988); Estes v. State, 111 Idaho 430, 725 P.2d 135 (1986).

In determining whether a summary disposition motion is properly granted, a court must review facts in a light most favorable to petitioner, and determine whether such facts would entitle relief if accepted as true. While this requires that the petitioner's unrebutted factual assertions be accepted as true, a court is not required to accept petitioner's conclusions. Parrott, 117 Idaho at 274, 787 P.2d at 260; Paradis v. State, 110 Idaho 534, 536, 716 P.2d 1306, 1308 (1986); Kraft v. State, 100 Idaho 671, 603 P.2d 1005 (1979). The standard to be applied to a trial court's determination that no material issue of fact exists is the same type of determination in a summary judgment proceeding. See State v. Christensen, 102 Idaho 487, 489, 632 P.2d 676, 678 (1981); Anderson v. City of Pocatello, 112 Idaho 176, 731 P.2d 171 (1986). We review the trial court's legal determination that the moving party is entitled to judgment as a matter of law under a correction of error standard, showing no particular deference. Anderson, 112 Idaho at 179-80, 731 P.2d at 174.

II. EFFECTIVE ASSISTANCE OF COUNSEL

An accused in a criminal proceeding is guaranteed effective assistance of counsel. Aragon v. State, 114 Idaho 758, 760 P.2d 1174 (1988). To establish deficient assistance, the burden is on the petitioner to show that his attorney's conduct fell below an objective standard of reasonableness. Aragon, 114 Idaho at 760, 760 P.2d at 1176. This objective standard embraces a strong presumption that trial counsel was competent and diligent. Charboneau, 116 Idaho at 137, 774 P.2d at 307; Aragon, 114 Idaho at 760, 760 P.2d at 1176; Estes v. State, 111 Idaho 430, 725 P.2d 135 (1986). Moreover, according to statute and case law, petitioner must not only put competency into issue, he must also show that the deficient conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. The constitutional requirement for effective assistance of counsel is not the key to the prison for a defendant who can dredge up a long series of examples of how the case might have been tried better.

Petitioner refers to a number of claimed failings, all of which assert a lack of adequate preparation on the part of Mr. Bishop. However, petitioner must support his allegations by affidavit or equally reliable evidence. Such affidavit must in turn satisfy Rule 56(e) of the Idaho Rules of Civil Procedure, which requires the affidavit to be made on personal knowledge setting forth facts that would be admissible at trial. Hecla Mining Co. v. Star-Morning Mining Co., 122 Idaho 778, 839 P.2d 1192 (1992); East Lizard Butte Water Corp. v. Howell, 122 Idaho 679, 837 P.2d 805 (1992); Casey v. Highlands Ins. Co., 100 Idaho 505, 600 P.2d 1387 (1979). Petitioner's affidavit does not satisfy Rule 56(e), as it is based on hearsay and is conclusory. Specifically, petitioner's affidavit alleges, but does not support with personal knowledge, that Bishop permitted perjured testimony, and that Bishop failed to adequately investigate by refusing to contact certain allegedly exculpatory defense witnesses. These bare insinuations can only be the product of hearsay, as defendant has been incarcerated since indictment and cannot possibly have personal knowledge of Bishop's conduct. Petitioner offers no other evidence to support his claims. Thus, petitioner does not overcome the strong presumption in favor of competency to create a genuine factual issue. Moreover, even if one accepts petitioner's allegations of deficiencies as true, there is no showing that, had counsel acted in accord with petitioner's wishes, it would have produced a different result at trial. Conversely, Mr. Bishop's affidavit, based on his own knowledge and experience, explains and justifies the particular trial strategy he chose to pursue, including the investigation and interviews of every witness named by petitioner and the rationale for calling or not calling them, the very trial strategy this Court has vowed not to second-guess. State v. Larkin, 102 Idaho 231, 628 P.2d 1065 (1981).

The trial court properly dismissed the petition for post-conviction relief based on ineffective assistance of counsel without an evidentiary hearing.

BAKES, C.J., and JOHNSON and TROUT, JJ., concur.

BISTLINE, Justice, dissenting.

An accused person has a constitutional right to assistance of counsel. U.S. Const. amend. VI; Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796-97, 9 L.Ed.2d 799 (1963). "This right is fundamental and is not a luxury." Stuart v. State, 118 Idaho 932, 934, 801 P.2d 1283, 1285 (1990) citing United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). The right to counsel necessarily includes the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 837, 25 L.Ed.2d 763 (1970).

The district court dismissed Ivey's petition without an evidentiary hearing pursuant to I.C. § 19-4906(c). That statute reads:

The court may grant a...