Kelly v. State, Docket No. 33773 (Idaho App. 4/13/2009)
| Decision Date | 13 April 2009 |
| Docket Number | Docket No. 33773. |
| Parties | GREGORY LOUIS KELLY, Petitioner-Appellant, v. STATE OF IDAHO, Respondent. |
| Court | Idaho Court of Appeals |
Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bonneville County. Hon. Richard T. St. Clair, District Judge.
Order summarily dismissing application for post-conviction relief, affirmed in part, reversed in part, and remanded.
Dennis A. Benjamin of Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Rebekah A. Cudé, Deputy Attorney General, Boise, for respondent. Rebekah A. Cudé argued.
Gregory Louis Kelly appeals from the district court's order summarily dismissing his application for post-conviction relief. For the reasons set forth below, we affirm in part, reverse in part, and remand the case for further proceedings.
Kelly was charged with four counts of conspiracy to traffic in methamphetamine, one count of trafficking in methamphetamine, one count of possession of methamphetamine with intent to deliver when children are present, and one count of conspiracy to traffic in marijuana. Pursuant to a plea agreement, Kelly pled guilty in 2003 to two counts of conspiracy to traffic in methamphetamine. I.C. §§ 37-2732B(a)(4)(A), 37-2732B(b). The district court sentenced Kelly to concurrent unified terms of twenty years, with minimum periods of confinement of eight years. Kelly then filed an I.C.R. 35 motion for reduction of his sentences. The district denied Kelly's Rule 35 motion, and he appealed. In an unpublished opinion, this Court affirmed the district court's denial of Kelly's Rule 35 motion. See State v. Kelly, Docket No. 30586 (Ct. App. Jan. 5, 2005).
On January 9, 2006, Kelly filed an application for post-conviction relief. The state filed an answer in February, and Kelly filed several replies to the state's answer. On August 15, the state filed a motion for summary dismissal and accompanying memorandum. The state's cryptic motion generally requests dismissal of Kelly's application stating that there is "no evidentiary basis to support his claims." However, the state's accompanying memorandum specifically sets forth the grounds the state relied on as a basis for the dismissal of each claim mentioned therein. The district court held a hearing on the state's motion for summary dismissal. At that time, Kelly had not requested counsel, requested to be transferred for the hearing, or requested to appear telephonically. At the hearing, no arguments were made and the district court took the state's motion under advisement. On October 19, the district court summarily dismissed all of Kelly's post-conviction claims. Kelly appeals.
An application for post-conviction relief initiates a proceeding that 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). 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. 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 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 I.R.C.P. 56. 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, 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 nonmoving party. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct. App. 1993).
Kelly argues that the district court denied him due process and access to the courts by conducting a hearing on the state's motion for summary dismissal in Kelly's absence. The state counters that Kelly has failed to establish how his due process rights were violated when the district court did not sua sponte decide to have him transported for the hearing and when nothing was argued or was decided at the hearing.
On September 27, 2006, the district court held a hearing on the state's motion for summary dismissal. The district court began by noting that Kelly had not requested the appointment of counsel, a transfer to appear in person, or to appear telephonically. The state's attorney explained that he was requesting summary dismissal and then concluded that "at this time I'll simply submit my arguments on the brief." There was no argument made and the district court conveyed that it would issue a written decision. On September 29, two days after the hearing, Kelly's motion for transport was filed with the district court.
The district court did not violate Kelly's due process rights in this case. The district court did not deny Kelly the opportunity to attend the hearing. Furthermore, it could not be a denial of due process for Kelly to be absent from a hearing where no evidence is presented, no argument entertained, and no decision is reached by the court. Kelly's claim is without merit.
Kelly asserts that several of his claims were improperly summarily dismissed because neither the state's motion for summary dismissal nor the accompanying memorandum provided, with adequate particularity, the grounds on which the state sought dismissal. Kelly also argues he did not receive any notice regarding some of his claims because the claims were not addressed in the state's memorandum and the district court dismissed those claims without thereafter issuing a twenty-day notice. Finally, Kelly contends that he did not receive proper notice because the district court dismissed several of his claims on grounds other than those which were relied on in the state's memorandum. Idaho Code Section 19-4906 provides, in pertinent part:
(b) When a court is satisfied, on the basis of the application, the answer or motion, and the record, that the applicant is not entitled to post-conviction relief and no purpose would be served by any further proceedings, it may indicate to the parties its intention to dismiss the application and its reasons for so doing. The applicant shall be given an opportunity to reply within 20 days to the proposed dismissal. . . .
(c) The court may grant a motion by either party for summary disposition of the application when 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.
Pursuant to I.C. § 19-4906(b), the district court may sua sponte dismiss an applicant's post-conviction claims if the court provides the applicant with notice of its intent to do so, the ground or grounds upon which the claim is to be dismissed, and twenty days for the applicant to respond. Pursuant to I.C. § 19-4906(c), if the state files and serves a properly supported motion to dismiss, further notice from the court is ordinarily unnecessary. Martinez v. State, 126 Idaho 813, 817, 892 P.2d 488, 492 (Ct. App. 1995). The reason that subsection (b), but not subsection (c), requires a twenty-day notice by the court of intent to dismiss is that, under subsection (c), the "motion itself serves as notice that summary dismissal is being sought." Saykhamchone v. State, 127 Idaho 319, 322, 900 P.2d 795, 798 (1995). Idaho Rule of Civil Procedure 7(b)(1) requires that the grounds of a motion be stated with "particularity." If the state's motion fails to give such notice of the grounds for dismissal, the court may grant summary dismissal only if the court first gives the applicant the requisite twenty-day notice of intent to dismiss and the grounds therefore pursuant to ...
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