Kuehl v. State, Docket No. 37829

• Court: Idaho Court of Appeals
• Writing for the Court: LANSING
• Decision Date: 24 January 2012
• Docket Number: Docket No. 37829
• Citation: Kuehl v. State, Docket No. 37829 (Idaho App. Jan 24, 2012)
• Parties: DARRYL R. KUEHL, Petitioner-Appellant, v. STATE OF IDAHO, Respondent.

DARRYL R. KUEHL, Petitioner-Appellant,

v.STATE OF IDAHO, Respondent.

Docket No. 37829

COURT OF APPEALS OF THE STATE OF IDAHO

Filed: January 24, 2012

2012 Unpublished Opinion No. 334

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the First Judicial District, State of Idaho,

Bonner County. Hon. Steven C. Verby, District Judge.

Judgment summarily dismissing post-conviction action, affirmed.

Nevin, Benjamin, McKay & Bartlett LLP; Deborah A. Whipple, Boise, for

appellant.

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

Attorney General, Boise, for respondent.

LANSING, Judge

Darryl R. Kuehl appeals from the summary dismissal of his successive petition for post-conviction relief. We affirm.

I.FACTS AND PROCEDURE

Kuehl was convicted in 1997 for first degree murder, Idaho Code §§ 18-4001, 18-4003, grand theft, I.C. §§ 18-2403(1), 18-2407(1)(b), and five counts of forgery, I.C. § 18-3601. His convictions stemmed from the shooting death of Paul Gruber in 1994 and the theft of his property. Kuehl appealed from his judgment of conviction. This Court affirmed the convictions. State v. Kuehl, Docket No. 24755 (Ct. App. May 6, 2002) (unpublished).

Thereafter, Kuehl filed a petition for post-conviction relief, asserting ten instances of ineffective assistance of his trial counsel. Counsel was appointed to represent Kuehl in that post-conviction proceeding. The district court summarily dismissed the petition and Kuehl appealed.This Court affirmed the dismissal in Kuehl v. State, 145 Idaho 607, 181 P.3d 533 (Ct. App. 2008).

While his first post-conviction appeal was still pending, Kuehl filed the present successive action for post-conviction relief. He asserted a number of claims of ineffective assistance of his direct appeal counsel for failure to raise issues in that appeal as well as a number of other claims for relief. Counsel was eventually appointed to represent Kuehl, and a supplemental petition was filed. The State filed a motion for summary dismissal which was granted by the district court. Kuehl filed an Idaho Rule of Civil Procedure 60(b) motion for relief from the dismissal. The district court denied the motion and Kuehl appeals.

II.ANALYSIS

Successive petitions for post-conviction relief are allowed only in limited circumstances. An individual may file a timely successive petition if "the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application." I.C. § 19-4908. See also Charboneau v. State, 144 Idaho 900, 904, 174 P.3d 870, 874 (2007); Schwartz v. State, 145 Idaho 186, 189, 177 P.3d 400, 403 (Ct. App. 2008). The petitioner bears the burden of providing the district court with facts establishing a "sufficient reason." Hooper v. State, 127 Idaho 945, 948, 908 P.2d 1252, 1255 (Ct. App. 1995).

In Kuehl's successive petition he asserted that after filing his pro se initial petition for post-conviction relief, he met with his appointed post-conviction counsel and discussed with him additional "trial evidence" that Kuehl had not referenced in the initial petition but that now provides the basis for the claims asserted in his successive petition. He alleged that his initial post-conviction counsel told him that this information should have been used in his direct appeal, but that his post-conviction counsel failed to inform him, at a time when he could still have amended his petition, that he could assert additional claims of ineffective assistance of his direct appeal counsel for failing to raise certain claims of error in that appeal based upon this information. Kuehl said that he had only recently learned that a claim of ineffective assistance of direct appeal counsel may be presented in a post-conviction action, and that he filed his successive petition shortly thereafter.

The State moved for summary dismissal on a number of grounds, including that Kuehl had failed to establish a sufficient reason to allow a successive petition. After receiving Kuehl's response, the district court granted the motion. On appeal, Kuehl first argues that this case must be remanded for findings because, he says, the order of dismissal does not make clear whether the district court overlooked his asserted sufficient reasons or simply found them legally insufficient.

We do not find remand to be necessary, for it is clear that the district court here recognized and considered Kuehl's alleged sufficient reasons. Although the district court's order of dismissal does not discuss the detail of Kuehl's asserted sufficient reason, the court's disposition of the various claims shows that it did consider and rule upon these assertions. The claims alleged in Kuehl's successive petition are not entirely clear or cohesively written, but some of the claims appear to be asserted as independent constitutional violations or wrongs in that they make no reference to ineffectiveness of direct appeal counsel for failure to raise them as claims of error on appeal. The district court summarily dismissed all claims not alleging ineffective assistance of direct appeal counsel for lack of a showing of sufficient reason, and summarily dismissed the claims alleging ineffective assistance of direct appeal counsel on a different basis, namely the statute of limitations. Thus, it appears that the court recognized, and even accepted, Kuehl's asserted sufficient reason with respect to the claims of ineffective assistance of appellate counsel.

On appeal Kuehl takes a more expansive view of his asserted sufficient reason than did the district court. Referencing averments he made in an unsworn brief, he argues that his sufficient reason was that his original post-conviction counsel "incorrectly told him that none of the claims he raised in the successive petition could be raised in the original petition." In other words, his asserted sufficient reason applied to all of his newly-pled claims and not just those asserting ineffective assistance of direct appeal counsel. In addition, Kuehl directly challenges the propriety of the district court's dismissal of his ineffective assistance of direct appeal counsel claims on statute of limitations grounds.¹

We need not address whether the district court erred in its application of the statute of limitations to part of Kuehl's claims, for we conclude that Kuehl did not demonstrate a sufficient reason for failing to include all of his current claims in his original post-conviction petition. Where the lower court reaches the correct result by an erroneous theory, this Court may affirm the order if the same result would be proper under another theory that was presented below. Fields v. State, 151 Idaho 18, 22, 253 P.3d 692, 696 (2011); Baker v. State, 142 Idaho 411, 420, 128 P.3d 948, 957 (Ct. App. 2005). As explained below, Kuehl's asserted sufficient reason for not including his current claims in his original petition is insufficient as a matter of law as to all of his claims for relief, and his successive petition was subject to dismissal for that reason.

While Idaho courts have recognized that ineffective assistance of prior post-conviction counsel may supply a sufficient reason authorizing the filing of a successive petition, this has been recognized only in the limited circumstance where claims for relief prepared and filed by the petitioner pro se were not adequately addressed on the merits because of counsel's subsequent deficient performance, see Palmer v. Dermitt, 102 Idaho 591, 596, 635 P.2d 955, 960 (1981); Schwartz v. State, 145 Idaho 186, 189, 177 P.3d 400, 403 (Ct. App. 2008); Griffin v. State, 142 Idaho 438, 441, 128 P.3d 975, 978 (Ct. App. 2006); Wolfe v. State, 113 Idaho 337, 339, 743 P.2d 990, 992 (Ct. App. 1987), or where counsel...