Jones v. State, 20151

• Decision Date: 25 February 1994
• Docket Number: No. 20151,20151
• Citation: 125 Idaho 294,870 P.2d 1
• Parties: Rex JONES, aka Raymond Jones, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

Page 1

870 P.2d 1

125 Idaho 294

Rex JONES, aka Raymond Jones, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 20151.

Court of Appeals of Idaho.

Feb. 25, 1994.

Manweiler, Bevis & Cameron, P.A., Boise, for appellant. David D. Manweiler, argued.

Larry EchoHawk, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., Boise; for respondent. Michael A. Henderson, argued.

PERRY, Judge.

This is an appeal from the summary dismissal of an application for post-conviction relief. For the reasons stated below, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 27, 1989, Rex Jones was found guilty by a jury of sexual abuse of a minor under the age of sixteen. I.C. § 18-1506. He was sentenced to a unified term of twelve years' incarceration with a minimum period of confinement of four years. This Court previously affirmed Jones' sentence in State v. Jones, 118 Idaho 720, 800 P.2d 116 (Ct.App.1990). In March of 1992, Jones filed an application for post-conviction relief. On motion by the state, the application was summarily dismissed by the district court, and Jones filed a motion for reconsideration. The motion to reconsider was granted only for the purpose of reviewing additional affidavits, and the district court ultimately affirmed its original dismissal. Jones then filed this appeal. Jones contends the district court erred in summarily dismissing his application. More specifically, Jones claims there was a material issue of fact whether the district court should have inquired if he had received and reviewed a copy of the pre-sentence investigation report prior to sentencing. Jones also claims a material issue of fact exists as to whether he was afforded effective assistance of counsel at trial.

ANALYSIS

I. STANDARD OF REVIEW

Idaho Code § 19-4906(b) provides that the district court may dismiss an application for post-conviction relief unless the application contains allegations which, if proved, would entitle the applicant to the remedy sought. Griffith v. State, 121 Idaho 371, 825 P.2d 94 (Ct.App.1992). On review of a dismissal of a post-conviction application without an evidentiary hearing, we must determine whether there are genuine issues of material fact. I.C. § 4906(c); State v. Goodrich, 104 Idaho 469, 472, 660 P.2d 934, 937 (1983); Olds v. State, 122 Idaho 976, 978, 842 P.2d 312, 314 (Ct.App.1992). As we do with a motion for summary judgment under I.R.C.P. 56, we determine whether a genuine issue of fact exists based on the pleadings, depositions and admissions on file, together with any affidavits. Moreover, the court will liberally construe the facts in favor of the party opposing the motion, together with all reasonable inferences to be drawn from the evidence in favor of the non-moving party. Loomis v. City of Hailey, 119 Idaho 434, 807 P.2d 1272 (1991); Bonz v. Sudweeks, 119 Idaho 539, 808 P.2d 876 (1991); Mitchell v. Siqueiros, 99 Idaho 396, 582 P.2d 1074 (1978).

The Uniform Post-Conviction Procedure Act as adopted in Idaho, I.C. §§ 19-4901-19-4911, provides an appropriate mechanism for considering a variety of claims that could not be raised in trial or on direct appeal. The Act is available "to cure fundamental errors

                [125 Idaho 296] occurring at the trial which affect either the jurisdiction of the court or the validity of the judgment...."   Maxfield v. State, 108 Idaho 493, 499, 700 P.2d 115, 121 (Ct.App.1985),quoting Smith v. State, 94 Idaho 469, 474-75, 491 P.2d 733, 738-39 (1971)
                

II. PRESENTENCE INVESTIGATION REPORT

In his application for post-conviction relief, Jones first alleges that the district court erred by not adequately inquiring whether he had seen and reviewed the presentence investigation report, thereby denying him the opportunity to correct any errors contained therein. The Idaho Supreme Court has held that in order to ensure the reliability of presentence investigation reports, a defendant must be afforded the opportunity to present favorable evidence, to examine all materials contained in the report and to explain and rebut adverse evidence. State v. Pizzuto, 119 Idaho 742, 760, 810 P.2d 680, 698 (1991).

Jones alleges that the district court failed to "investigate" whether the report had been reviewed by him. Prior to sentencing, Jones was informed that a report would be prepared, and he would have the opportunity to review it. Furthermore, during sentencing, the presentence report was mentioned on several occasions by the prosecuting attorney and the district judge. Jones raised no objection at that time regarding either his inability to review the report or the comments made by the court and counsel concerning the contents of the report. Without some indication that Jones had not seen the report, the district court was not required to "investigate" whether he'd actually seen it.

Furthermore, now that Jones has seen the report, he has failed to allege in his application for post-conviction relief what errors, if any, appear in the presentence investigation report and any resulting prejudice. Under the summary dismissal procedure as outlined by I.C. § 19-4906(c), the court may grant a summary dismissal if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Even assuming the facts alleged in Jones' affidavits are true, Jones has failed to allege any errors or corrections he would have made at sentencing. Because he has failed to indicate what errors were contained in the presentence report that resulted in prejudice, Jones is not entitled to relief. Therefore, the state, as a matter of law, is entitled to summary judgment. The district court did not err in summarily dismissing the application for post-conviction relief on these grounds.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

The second prong of Jones' appeal is a claim of ineffective assistance of counsel. As part of this claim, Jones cites the following as specific areas in which his counsel was ineffective: a general failure to communicate with Jones, failure to conduct proper pre-trial investigation and discovery, failure to challenge allegedly biased jury members, failure to challenge Jones' confession based on a lack of Miranda warnings, failure to object to introduction of prior bad acts and failure to withdraw once an attorney-client conflict arose.

In order to prove a claim of ineffective assistance of counsel, an applicant must show that the attorney's conduct fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). There is a strong presumption that trial counsel's performance falls within the wide range of "professional assistance." Id. An applicant must not only show incompetence, but must also show that the deficient conduct so undermined the proper functioning of the adversarial process that the trial court cannot be relied upon as having produced a just result. Ivey v. State, 123 Idaho 77, 80, 844 P.2d 706, 709 (1992). In Strickland, supra, the United States Supreme Court advanced a two-part test to determine whether a claim of ineffective assistance could prevail. A defendant must demonstrate not only that trial counsel was deficient, but also that the deficiency led to some prejudice. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The Idaho Supreme Court has also noted that "The constitutional requirement for effective assistance of counsel

                [125 Idaho 297] 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."  Ivey, 123 Idaho at 80, 844 P.2d at 709.   We will examine each allegation of the ineffective assistance claim separately
                

A. Failure to Communicate

Jones alleges that his counsel failed to communicate with him both before and during the trial. Specifically, he claims that counsel failed to meet with and advise him following his arrest, failed to inform him of pre-trial procedures and the possibility of plea negotiations, failed to return his calls and letters, failed to advise him of the ramifications of testifying at trial and failed to provide him with a copy of the presentence investigation report.

Jones does not indicate, however, what effect these various allegations had on the trial or how he would have proceeded differently. In order to avoid the summary dismissal of his claim, Jones must demonstrate that he is entitled to some relief. Because these allegations of failure to communicate are in the context of an ineffective assistance claim, Jones must demonstrate that the alleged errors produced some prejudicial result. With respect to a post-arrest consultation, information regarding the trial process and failure to return letters and calls, Jones points to no prejudicial results from these claims. Although better communication between lawyer and client may have eased some of Jones' fears, a lack of it, without allegations of prejudice, is not enough to sustain an ineffective assistance claim.

With respect to informing Jones of the ramifications of testifying at trial, Jones does not claim he would have refrained from testifying. Indeed, Jones' entire theory of defense, that his actions were intended to frighten his stepdaughter, necessitated that he testify. As we have already discussed in Part II of this decision, Jones cites no errors in the presentence investigation report and instead merely alleges, without support in the record, that he was not permitted to review it. With no indications of prejudice set forth in Jones' application, the state was entitled to judgment as a matter of law. Therefore, the district court did not err in granting the state's motion for summary dismissal as to these specific claims.

B. Failure to Conduct Pre-Trial Discovery and Investigation

Jones alleged in his application that his trial counsel failed to conduct prompt and thorough discovery, failed to follow up on...