Judd v. State

• Decision Date: 27 July 2009
• Docket Number: No. 34408.,34408.
• Citation: 218 P.3d 1
• Parties: John A. JUDD, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

218 P.3d 1

John A. JUDD, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 34408.

Court of Appeals of Idaho.

July 27, 2009.

Review Denied October 5, 2009.

Molly J. Huskey, State Appellate Public Defender; Heather M. Carlson, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent.

LANSING, Chief Judge.

John A. Judd appeals from the dismissal of his petition for post-conviction relief. He contends that the district court erred by not ruling on his motion for appointed counsel prior to dismissing the action.

I. BACKGROUND

In 1998, Judd pleaded guilty to sexual abuse of a minor child under sixteen and received a unified fifteen-year sentence with five years determinate. No appeal was taken from that judgment. In 2000, Judd filed a pro se motion for reduction of sentence, which was denied because it was not timely filed.

In March 2007, Judd filed a pro se petition for post-conviction relief. He asserted a number of claims of ineffective assistance by his defense counsel, including that counsel failed to inform the court that Judd was a juvenile at the time of his offense, failed to file a direct appeal from the judgment of conviction as requested, and failed to file a timely motion for reduction of Judd's sentence as promised. With his petition, Judd filed a motion for appointment of counsel. The district court, without ruling on the motion for appointed counsel and without giving prior notice, dismissed the petition because it was filed after expiration of the one-year limitation period established by Idaho Code § 19-4902.¹ After Judd timely appealed, the State moved to remand the case to the district court for provision of the requisite notice to Judd of the court's intent to dismiss and to allow Judd time to respond as required by I.C. § 19-4906(b). Our Supreme Court granted the motion for remand and suspended this appeal.

Thereafter, the district court issued a notice of intent to dismiss on statute of limitation grounds. Judd, still appearing pro se, filed a response that did not address the statute of limitation issue. Judd also filed a second motion for appointment of counsel. After receiving Judd's responsive materials, the district court again dismissed the action as barred by the statute of limitation. In the same order, the district court stated that it "considered and herewith DENIES the appointment of counsel."

In this appeal, now ripe for our review, Judd contends that the district court erred by dismissing his post-conviction action without first considering Judd's request for counsel and appointing counsel to assist him.

II. ANALYSIS

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 Idaho Rule of Civil Procedure 56. Muchow v. State, 142 Idaho 401, 402, 128 P.3d 938, 939 (2006); Rhoades v. State, 135 Idaho 299, 300, 17 P.3d 243, 244 (2000). 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, 88, 741 P.2d 374, 375 (Ct.App.1987). In determining whether a genuine factual issue exists, the court must liberally construe the facts and reasonable inferences in favor of the nonmoving party. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct.App. 1993).

If a post-conviction petitioner is unable to pay for legal representation, the trial court may appoint counsel at public expense. I.C. § 19-4904. While the decision to grant or deny a request for court-appointed counsel is discretionary, Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004), counsel should be appointed if the petitioner qualifies financially and "alleges facts to raise the possibility of a valid claim." Id. at 793, 102 P.3d at 1112; Plant v. State, 143 Idaho 758, 761, 152 P.3d 629, 632 (Ct.App.2006). In adopting this standard, the Charboneau Court reasoned that because a pro se petitioner may not know the essential elements of a claim, potentially meritorious petitions may be conclusory and incomplete. Charboneau, 140 Idaho at 792-93, 102 P.3d at 1111-12. Consequently, if facts are alleged giving rise to the possibility of a valid claim, the trial court should appoint counsel in order to give the petitioner an opportunity to work with counsel and properly allege the necessary supporting facts. Id. "[E]very inference must run in the petitioner's favor where the petitioner is unrepresented at that time and cannot be expected to know how to properly allege the necessary facts." Id. at 794, 102 P.3d at 1113. Only if all of the claims alleged in the petition are frivolous may the court deny a request for counsel. Id. at 792, 102 P.3d at 1111; Brown v. State, 135 Idaho 676, 679, 23 P.3d 138, 141 (2001). If the court decides that the claims in the petition are frivolous, it should provide sufficient notice regarding the basis for its ruling to enable the petitioner to provide additional facts, if they exist, to demonstrate the existence of a non-frivolous claim. Swader v. State, 143 Idaho 651, 653-54, 152 P.3d 12, 15-16 (2007); Charboneau, 140 Idaho at 793, 102 P.3d at 1112.

The determination whether to appoint counsel and the determination whether a petition is subject to summary dismissal are thus controlled by quite different standards, with the threshold showing that is necessary in order to gain appointment of counsel being considerably lower than that which is necessary to avoid summary dismissal of a petition. Id. at 655, 152 P.3d at 16; Plant, 143 Idaho at 761, 152 P.3d at 632. Consequently, a district court presented with a request for appointed counsel in a post-conviction action must address that request before ruling on the substantive issues in the case and errs if it denies a petition on the merits before ruling on the applicant's request for counsel. See, e.g., Charboneau, 140 Idaho at 792-94, 102 P.3d at 1111-13; Fox v. State, 129 Idaho 881, 885, 934 P.2d 947, 951 (Ct.App.1997); Swisher v. State, 129 Idaho 467, 469, 926 P.2d 1314, 1316 (Ct.App.1996). Judd is thus correct in asserting that the district court committed error by failing to rule on his request for counsel before dismissing his petition. Additionally, the district court erred by apparently failing to apply the correct standard governing the request for appointed counsel. The order dismissing the petition and denying Judd's request for counsel did not articulate or address that standard.

The question next presented is whether these errors necessitate reversal of the dismissal order. Idaho appellate court decisions indicate that an order that simultaneously dismisses a post-conviction action and denies a motion for appointed counsel will be upheld on appeal if the petitioner received notice of the fatal deficiencies of the petition and if, when the standard governing a motion for appointment of counsel is correctly applied, the request for counsel would properly be denied-that is, when the petitioner did not allege facts raising even the possibility of a valid claim. Workman v. State, 144 Idaho 518, 529, 164 P.3d 798, 809 (2007); Swader, 143 Idaho at 653-55, 152 P.3d at 14-16; Plant, 143 Idaho at 760-63, 152 P.3d at 631-34; Newman v. State, 140 Idaho 491, 493-94, 95 P.3d 642, 644-45 (Ct.App.2004).

Applying this standard, we first conclude that Judd's petition alleges facts to support cognizable claims of ineffective assistance of counsel. He alleges that his defense attorney was ineffective in failing to inform the court that Judd was seventeen years old at the time of his offense and that Judd "was not an Adult and not bound to Adult Courts [sic] that he was Sentenced under." If Judd was indeed a juvenile at the time of his offense and the prosecution did not initiate the proceeding in a juvenile court, it is possible that the district court obtained no subject matter jurisdiction in the criminal case. See I.C. § 18-216; I.C. §§ 20-508, -509; In re Doe, 147 Idaho 243, 248-49, 207 P.3d 974, 979-80 (2009). Judd's additional allegations that his counsel failed to file an appeal from the judgment of conviction as requested and failed to file a motion to reduce the sentence as requested also state cognizable claims of ineffective assistance of counsel. See Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000); Goodwin v. State, 138 Idaho 269, 272-73, 61 P.3d 626, 629-30 (Ct.App.2002); LaBelle v. State, 130 Idaho 115, 119, 937 P.2d 427, 431 (Ct.App.1997); Hassett v. State, 127 Idaho 313, 900 P.2d 221 (Ct.App.1995); Mata v. State, 124 Idaho 588, 591-93, 861 P.2d 1253, 1256-58 (Ct.App. 1993). Judd's petition was not dismissed for lack of substantive merit, however, but because it was filed outside the limitation period. Consequently, whether Judd has shown a possibility of a valid claim, and thus reversible error in the court's failure to appoint counsel, turns upon whether his petition or his response to the district court's notice of intent to dismiss for untimeliness alleges facts showing the possibility of a valid basis to toll the statute of limitation.

Resolution of this issue requires that we

examine [Judd's] application for post-conviction relief to determine whether it presents any colorably meritorious claim, the presentation of which might have been enhanced by the assistance of counsel. If so, the district court's omission to consider the request for cou...