Kraft v. State
| Decision Date | 13 June 1978 |
| Docket Number | No. 12304,12304 |
| Citation | 99 Idaho 214,579 P.2d 1197 |
| Parties | Jack Harold KRAFT, Plaintiff-Appellant, v. The STATE of Idaho, Defendant-Respondent. |
| Court | Idaho Supreme Court |
Donald A. Ronayne of Rayborn, Rayborn & Ronayne, Twin Falls, for plaintiff-appellant.
Wayne L. Kidwell, Atty. Gen., Warren Felton, Deputy Atty. Gen., Boise, for defendant-respondent.
Jack Harold Kraft has appealed from a denial of his application for post-conviction relief. Following a jury trial, Kraft was convicted of the crime of rape, from which judgment he appealed to this court. State v. Kraft, 96 Idaho 901, 539 P.2d 254 (1975). In that appeal his judgment of conviction was affirmed, following which he filed a pro se application for post-conviction relief setting forth six "assignments of error." Several of these issues were specifically dealt with by this court on his appeal from judgment of conviction. 1 Kraft, by counsel, later filed an unverified "Addendum Memorandum for Post Conviction Relief" setting forth as an additional ground for relief a claim of incompetency of his two trial counsel. This issue had been considered by this court on the appeal. 2
An answer to Kraft's pro se petition for post-conviction relief was filed, wherein each specific assignment of error was replied to and which prayed that the petition be dismissed. However, the trial court granted a hearing at which Kraft was the only witness. His testimony at the hearing was primarily directed towards the incompetency of his first and second counsel, only the latter of which participated in the trial of the rape charge. In this testimony Kraft explained his version of what took place between himself and his respective counsel. At the conclusion of Kraft's testimony the court advised that it was not going to grant the State's motion to dismiss and that it was bound by this court's resolution of the competency issue, but that if it was not, Kraft had failed to carry his burden of proof. The court also took under advisement an issue concerning the propriety of the sentence imposed.
Before any findings of fact, conclusions of law or order were entered, as required by I.C. § 19-4907, 3 Kraft filed a pro se notice of appeal. The trial court in a memorandum opinion recognized that by his precipitous action in prematurely filing the notice of appeal, Kraft may have barred the trial court from ruling on the propriety of the consecutive sentence imposed. However, the trial court did pass on this issue and correctly anticipated this court's decision in State v. Lawrence, 98 Idaho 399, 565 P.2d 989 (1977).
In view of the fact that this appeal was taken before any final order as required by I.C. § 19-4907 was entered, it must be dismissed as premature. Hamblen v. Goff, 90 Idaho 180, 409 P.2d 429 (1965); Goade v. Gossett, 35 Idaho 84, 204 P. 670 (1922); Stout v. Cunningham, 33 Idaho 83, 189 P. 1107 (1920).
Appeal dismissed.
Although I am concurring in the dismissal of the appeal, I do so somewhat reluctantly, thinking it only fair to the attorneys involved to point out that more than a year ago a State's motion to dismiss the appeal for want of a written final order was denied. It was my own understanding at that time that the Court proceeded with the appeal on the basis that Judge Cunningham's oral order of denial, reflected in a written court minute entry, could suffice as the equivalent of a written order in this particular case. Also, at an earlier time, pursuant to a stipulation of the parties, we entered an order that the record be augmented with a transcript of the district judge's ruling from the bench. I can see that counsel will believe the Court inconsistent in once apparently accepting jurisdiction and now rejecting it. Though the earlier order denying the motion to dismiss was erroneous, counsel may very well think we should abide by it nevertheless.
Findings of fact and conclusions of law are not jurisdictional. It has ever been the law of this state that counsel may even waive findings of fact and conclusions of law, although I am not suggesting such a practice in post-conviction relief proceedings. There are prior decisions of this Court holding that findings are not indispensable to appellate review where this Court is adequately advised of the basis of a trial court decision. I do agree that findings of fact ordinarily are almost indispensable to appellate review, but in this particular case there was no conflicting testimony.
It is readily apparent from the reporter's transcript that the trial judge denied Kraft's petition on the basis that ineffective assistance of counsel was considered and decided by this Court on Kraft's direct appeal from the judgment of conviction, State v. Kraft, 96 Idaho 901, 539 P.2d 254 (1975). That Judge Cunningham accorded our decision in Kraft I a res judicata effect even though it appears he may have had before him facts not presented on the direct appeal is evidenced by the following remarks:
But to make things even worse for Mr. Kraft, our Supreme Court says this about representation of counsel in Mr. Kraft's case, the Court says on the top of Page 906 of Volume 96 of the Reports: We do not believe this oversight alone so prejudiced appellate's case as to render what was in all other respects reasonable, competent assistance of counsel.
Now, if the Supreme Court had before it the very transcript which you read, and I assume that each of the Justices read the transcript, they had a verbatim report of everything that was done in Judge Ward's Court. And after reading it, what did they say?
They said, except for this one instance that they didn't think material, they said; Mr. Kraft received competent assistance of counsel.
I am certainly not going to argue with the Court even though in my own viewpoint I would think it would be well for counsel to spend more than the time Mr. Kraft indicates was spent with him.
All I am saying is that time in itself is not very material whether the job is done, and our Supreme Court said, and I am repeating I guess for the third or fourth time, he did have the reasonable competent assistance of counsel.
I think it is not in the interests of judicial economy to return the cause to Judge Cunningham without any inkling of direction from this Court on the res judicata aspect. Such is a question of law. As Chief Justice Shepard wrote in Jacobsen v. State, 98 Idaho 45, 577 P.2d 24 (1978), there is no necessity for remand where the issue is "with the applicable law" rather than with the facts. Clearly this Court in the final instance will determine whether Kraft I bars consideration of the ineffectiveness claim on a petition for post-conviction relief. I can conceive of no reason for not doing so at this highly appropriate time. If Kraft I is res judicata as to every aspect of petitioner's ineffectiveness claim, then we should say so and put an end to the long delay which has beset Kraft in pursuing his claim to post-conviction relief. If it is not, then we should so state, so that upon remand the trial judge will not labor under the same confusion which, through no fault of his own, existed at the time of the original hearing. Such confusion would again interfere with clearly focused consideration of Kraft's factual contentions on his ineffectiveness claim. For these reasons I feel it is appropriate to set forth at least one appellate view of the res judicata question.
In Kraft I, Kraft's appellate counsel was other than his trial counsel. The denial of effective assistance of counsel at trial was assigned as error on the direct appeal from the judgment of conviction, "in the following particulars":
(1) failure to make an opening statement; (2) failure to move for a dismissal of charges against him after the state presented its case; (3) failure to present evidence on his behalf; (4) failure to offer jury instruction on the issues of lesser included offenses and witness credibility.
State v. Kraft, 96 Idaho 901, 904, 539 P.2d 254, 257 (1975). The judgment was affirmed. On the basis of the teaching of State v. Tucker, 97 Idaho 4, 539 P.2d 556 (1975), the Court said in regard to the third allegation of incompetence:
(I)t is not enough for a defendant to allege that no evidence was introduced in his behalf at trial, and from that premise conclude as appellant has done that assistance of counsel was inadequate. Rather a defendant must specify or at least identify evidence in his favor which existed, and which should have been introduced at trial but was not due to the lack of diligent preparation on his counsel's part. Furthermore, appellant has not indicated what evidence existed which if it had been presented could have a different result.
Kraft, supra, 96 Idaho at 905, 539 P.2d at 258. The Court did not indicate how appellant could meet this burden of specificity where there was no hint in the record as to what evidence might have been available and where no procedure had been adopted by this Court for allowing augmentation of the trial record on the ineffectiveness issue. Neither did the Court follow the suggestion of Justice Bakes who, in concurring specially, wrote,
I concur in the majority opinion except that I would reserve for a subsequent post-conviction hearing the issue of competency of counsel raised and disposed of by the majority. The question of competency of counsel is an extremely complex factual determination which, in all but the most unusual cases, requires an evidentiary hearing for determination. See State v. Tucker, 97 Idaho 4, 539 P.2d 556 (1975). The resolution of those factual issues for the first time upon appeal, based upon a trial record in which competency of counsel was not an issue, is at best conjectural.
Id. at 906, 539 P.2d at 259. 1 Justice Bakes apparently believed that competency of counsel should not have been raised...
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State v. Carter
...for post conviction relief pursuant to I.C. § 19-4901 et seq. State v. Blackburn, 99 Idaho 222, 579 P.2d 1205 (1978); State v. Kraft, 99 Idaho 214, 579 P.2d 1197 (1978).1 Just as the duty of the prosecutor is to seek justice, not merely to convict, ABA Standards Relating to the Prosecution ......
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...Numerous civil cases in Idaho hold that a premature notice of appeal is ineffective to vest jurisdiction on appeal. See Kraft v. State, 99 Idaho 214, 579 P.2d 1197 (1978) (notice of appeal filed before written findings of fact, conclusions of law or judgment was entered; appeal dismissed as......
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