Jakoski v. State

• Decision Date: 15 June 2001
• Docket Number: No. 26150.,26150.
• Citation: 32 P.3d 672,136 Idaho 280
• Parties: Benjamin A. JAKOSKI, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

32 P.3d 672

136 Idaho 280

Benjamin A. JAKOSKI, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 26150.

Court of Appeals of Idaho.

June 15, 2001.

Review Denied September 24, 2001.

Ronaldo A. Coulter, State Appellate Public Defender, Boise, for appellant.

Hon. Alan G. Lance, Attorney General; Karen A. Hudelson, Deputy Attorney General, Boise, for respondent.

PERRY, Judge.

Benjamin A. Jakoski appeals from an order of the district court summarily dismissing his application for post-conviction relief. For the reasons set forth below, we affirm.

I. BACKGROUND

Jakoski was originally charged with sexual abuse of a child under the age of sixteen. In December 1994 pursuant to a plea agreement, Jakoski pled guilty to assault with the intent to commit a serious felony. I.C. §§ 18-901, -909. The district court imposed a unified five-year sentence, with a minimum period of confinement of two years, but suspended execution of the sentence and placed Jakoski on probation for a period of five years.

On January 26, 1995, the state filed a petition for revocation of probation, and Jakoski admitted the violation. The district court ordered the previously suspended sentence into execution, but retained jurisdiction for 180 days. After expiration of the retained jurisdiction period, the district court again suspended execution of the original sentence, placing Jakoski on probation for a term of eight years.

On June 7, 1996, a petition for revocation of probation was again filed by the state. Jakoski admitted to the probation violation. As a result of this transgression, on July 24, 1996, the district court extended Jakoski's term of probation to ten years. In addition, as a term and condition of probation, Jakoski agreed to serve 365 days in the Blaine County jail.

On September 18, 1997, a third petition to revoke Jakoski's probation was filed by the state. Jakoski admitted the violation and stipulated to entry of the originally suspended sentence. A telephonic hearing was held regarding the amount of credit for time served to which Jakoski was entitled. The district court found that Jakoski was entitled to credit of 224 days, but that Jakoski was not entitled to credit for the 365 days served in the county jail as a condition of his probation. On October 24, 1997, the district court ordered into execution the previously suspended sentence of a unified five-year term, with a fixed two-year term, stemming from the 1994 judgment of conviction. Jakoski filed a direct appeal challenging the district court's denial of the claimed 365 days. In State v. Jakoski, 132 Idaho 67, 966 P.2d 663 (Ct.App.1998), this Court affirmed the district court's refusal to award Jakoski credit for the 365 days served in the county jail as a condition of his probation.

Jakoski filed an application for post-conviction relief. In that application, Jakoski alleged that his trial counsel was ineffective for failing to advise him that he would not receive credit for the time served as a condition of his probation. In addition, Jakoski alleged that his appellate counsel was ineffective for failing to raise, as an issue on direct appeal, the voluntariness of his admissions to his probation violations and was ineffective by failing to aid him in seeking review before the Idaho Supreme Court. The state filed a motion for summary dismissal of Jakoski's application for post-conviction relief. Following a telephonic hearing, the district court granted the motion and summarily dismissed Jakoski's application. Jakoski appeals.

II. ANALYSIS

We first note that an application for post-conviction relief initiates a proceeding which 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). Summary dismissal of an application pursuant to I.C. § 19-4906 is the procedural equivalent of summary judgment under I.R.C.P. 56. 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, however, for 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 Section 19-4906 authorizes summary disposition of an application for post-conviction relief, either pursuant to motion of a party or upon the court's own initiative. Summary dismissal is permissible only when the applicant's evidence has raised no genuine issue of material fact which, 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; moreover, the court liberally construes the facts and reasonable inferences in favor of the non-moving party. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct.App.1993).

A. Ineffective Assistance of Trial Counsel

Jakoski first alleges that the district court erred by summarily dismissing his application for post-conviction relief because he had raised genuine issues of material fact regarding ineffective assistance on the part of his trial counsel. A claim of ineffective assistance of counsel may properly be brought under the post-conviction procedure act. Murray, 121 Idaho at 924-25, 828 P.2d at 1329-30. 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. Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct.App. 1995); Russell, 118 Idaho at 67, 794 P.2d at 656; Davis v. State, 116 Idaho 401, 406, 775 P.2d 1243, 1248 (Ct.App.1989). 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); Russell, 118 Idaho at 67, 794 P.2d at 656. 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; Russell, 118 Idaho at 67, 794 P.2d at 656.

Jakoski claims that his trial counsel was deficient because counsel failed to advise Jakoski in relation to his second probation violation that, if he violated his probation a third time and his original sentence was thereafter imposed, he would not be entitled to credit for the 365 days of jail time served as a condition of probation. Jakoski asserts that had he known that he would not get credit for the time served in the county jail as a condition of probation, he would have refused reinstatement of his probation upon the second violation and elected instead for incarceration at that time.

At the telephonic hearing on the state's motion for summary dismissal of Jakoski's application for post-conviction relief, the district court found that Jakoski "had been clearly advised at the sentencing in the second probation violation, which he accepted, that he would get no credit." In support of this finding, the district court relied on its statement at the disposition hearing regarding Jakoski's second probation violation that "there will be no credit for any time with regard to that county jail time, and there will be no good time. You will spend a year in the county jail." However, this statement was to inform Jakoski that he would not get credit for any time previously served in relation to the 365 days in the county jail ordered as a condition of probation. This is evidenced by the district court's written order which stated that Jakoski "shall serve three hundred sixty-five (365) days in the Blaine County Jail and shall not receive credit for time previously served, nor for any good time now or in the future." Thus, we conclude that Jakoski has made a prima facie showing that he was not advised at the disposition hearing on his second probation violation that if he violated his probation a third time, he would not be entitled to credit for the 365 days of jail time served as a condition of probation. Therefore, we must determine whether the failure of Jakoski's trial counsel to inform Jakoski of this information constituted...