Kellis v. State
| Decision Date | 15 August 2014 |
| Docket Number | Docket No. 41034,2014 Unpublished Opinion No. 672 |
| Parties | TIMOTHY ANDREW KELLIS, Petitioner-Appellant, v. STATE OF IDAHO, Respondent. |
| Court | Idaho Court of Appeals |
Stephen W. Kenyon, Clerk
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Appeal from the District Court of the Second Judicial District, State of Idaho, Latah County. Hon. John R. Stegner, District Judge.
Judgment dismissing action for post-conviction relief, affirmed.
Nevin, Benjamin, McKay & Bartlett, LLP; Deborah A. Whipple, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney General, Boise, for respondent.
Timothy Andrew Kellis appeals from the summary dismissal of his petition for post-conviction relief, contending that the district court erred by dismissing on grounds not raised in the State's motion. We affirm.
Following a jury trial, Kellis was convicted of nine counts of lewd and lascivious conduct with a minor under sixteen, Idaho Code § 18-1508; one count of attempted lewd conduct, I.C. §§ 18-1508, 18-306; and two counts of sexual abuse of a child, I.C. § 18-1506, for misconduct with four teenage boys, much of which occurred at a Boy Scout camp where Kellis was a staff member. This Court affirmed Kellis's conviction and sentence. State v. Kellis, 148 Idaho 812, 229 P.3d 1174 (Ct. App. 2010).
Kellis then filed this action for post-conviction relief, asserting a number of claims of ineffective assistance of counsel, and the district court appointed counsel to represent Kellis in the post-conviction action. The State filed a motion for summary dismissal. In response, Kellis filed an amended petition, his own affidavit, an affidavit of his post-conviction attorney, and various briefs with attached documentary exhibits. The State renewed its motion to dismiss, and the district court granted the State's motion. Kellis appeals. He contends that the district court erred because it dismissed on grounds different from the grounds identified in the State's motion, depriving him of notice and an opportunity to respond to the court's grounds for dismissal.
Idaho Code Section 19-4906 authorizes summary dismissal of a petition for postconviction relief, either pursuant to a motion by a party or upon the court's own initiative, if "it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." I.C. § 19-4906(c). Claims may be summarily dismissed if the petitioner's allegations are clearly disproven by the record of the criminal proceedings, if the petitioner has not presented evidence making a prima facie case as to each essential element of the claims, or if the petitioner's allegations do not justify relief as a matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281 (2010); McKay v. State, 148 Idaho 567, 570, 225 P.3d 700, 703 (2010); DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009); Charboneau v. State, 144 Idaho 900, 903, 174 P.3d 870, 873 (2007); Berg v. State, 131 Idaho 517, 518, 960 P.2d 738, 739 (1998); Murphy v. State, 143 Idaho 139, 145, 139 P.3d 741, 747 (Ct. App. 2006); Cootz v. State, 129 Idaho 360, 368, 924 P.2d 622, 630 (Ct. App. 1996). Thus, summary dismissal of a claim for post-conviction relief is appropriate when the court can conclude, as a matter of law, that the petitioner is not entitled to relief even with all disputed facts construed in the petitioner's favor. For this reason, summary dismissal of a post-conviction petition may be appropriate even when the State does not controvert the petitioner's evidence. See State v. Payne, 146 Idaho 548, 561, 199 P.3d 123, 136 (2008); Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994).
A post-conviction action may not be summarily dismissed, however, unless the petitioner has been given twenty days' notice, either by the court or by motion of the State, and anopportunity to respond before dismissal is ordered. I.C. § 19-4906(b); State v. Christensen, 102 Idaho 487, 489, 632 P.2d 676, 678 (1981).
On appeal from an order of summary dismissal, we apply the same standards utilized by the trial courts and examine whether the petitioner's admissible evidence asserts facts which, if true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925, 929 (2010); Berg, 131 Idaho at 519, 960 P.2d at 740; Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008); Roman, 125 Idaho at 647, 873 P.2d at 901. Over questions of law, we exercise free review. Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069 (2009); Downing v. State, 136 Idaho 367, 370, 33 P.3d 841, 844 (Ct. App. 2001); Martinez v. State, 130 Idaho 530, 532, 944 P.2d 127, 129 (Ct. App. 1997).
To prevail on a claim of ineffective assistance of counsel, a post-conviction petitioner must show that the defense attorney's performance was deficient and that the petitioner was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct. App. 1995). To establish a deficiency, the petitioner 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 petitioner must show a reasonable probability that, but for the attorney's deficient performance, the outcome of the trial would have been different. Id. at 761, 760 P.2d at 1177. This Court has long adhered to the proposition that tactical or strategic decisions of trial counsel will not be second-guessed on appeal unless those decisions are based on inadequate preparation, ignorance of relevant law, or other shortcomings capable of objective evaluation. Howard v. State, 126 Idaho 231, 233, 880 P.2d 261, 263 (Ct. App. 1994).
One of Kellis's claims that he carries forward on appeal is that his defense attorney was deficient for failing to present evidence that the four victims in his case had made similar allegations against the Boy Scout camp director. The three other claims of ineffective assistance that Kellis pursues in this appeal allege counsel's failure to call certain witnesses: (1) an expert who could have examined the conduct of the four complaining witnesses with respect to whether the boys exhibited any symptoms common to victims of sexual abuse; (2) an expert to determine whether there was any physical evidence such as DNA on the sleeping bags or other property of the four boys; and (3) a witness who would have refuted one boy's testimony that Kellis had given him alcohol while on a trip to an amusement park.
Kellis asserts that the district court dismissed these claims on grounds different than those raised in the State's motion to dismiss, and that the district court was therefore required by Idaho Code § 19-4906(b) to give him twenty days' notice of the new grounds so he could respond to them prior to the dismissal decision. Kellis contends that because he did not receive notice of the grounds upon which his claims were ultimately dismissed, reversal is required.
If the district court dismisses on grounds not presented in the State's motion, the petitioner has no opportunity to respond and attempt to establish a material issue of fact. See Baxter v. State, 149 Idaho 859, 865, 243 P.3d 675, 681 (Ct. App. 2010). Therefore, if "the state has filed a motion for summary disposition, but the court dismisses the application on grounds different from those asserted in the state's motion, it does so on its own initiative and the court must provide twenty days notice." Saykhamchone v. State, 127 Idaho 319, 322, 900 P.2d 795, 798 (1995). The Idaho Supreme Court has held that when a district court summarily dismisses a post-conviction petition relying in part on the same grounds presented by the State in a motion for summary dismissal, the notice requirement has been met even if the court also relied on additional grounds. Kelly, 149 Idaho at 523, 236 P.3d at 1283. In Kelly, the petitioner argued that the district court erred because it dismissed several of his claims on grounds entirely different than those advocated by the State's motion. The State's motion asserted that dismissal was appropriate because Kelly presented no evidence to support his claims, and the State supported this argument by citing extensively from Idaho law. Id. at 522, 236 P.3d at 1282. The district court held that Kelly's petition was subject to dismissal for several reasons not raised by the State, but it also dismissed the claims on the ground that Kelly had not provided facts sufficient to support his claims. On appeal, the Idaho Supreme Court held that Kelly was afforded sufficient notice because, when a trial court summarily dismisses a petition for post-conviction relief based in part on the arguments presented by the State, the notice requirements of Idaho Code § 19-4906(b) are satisfied. Id. at 523, 236 P.3d at 1283.
As to each of Kellis's claims, we conclude that the district court did not dismiss on a ground not raised by the State in its motion.
Kellis's first point of error involves his post-conviction claim that his defense counsel was deficient for failing to investigate and present at trial evidence that the four victims in his case had made similar allegations of inappropriate touching against the camp director theprevious summer. Kellis asserts that the omitted evidence would show that the boys reported the camp director's misconduct immediately after it occurred, whereas the first allegations against Kellis were not made until approximately eight months after the alleged offenses. Kellis...
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