Kuehl v. State

• Citation: 145 Idaho 607,181 P.3d 533
• Decision Date: 08 January 2008
• Docket Number: No. 30786.,30786.
• Parties: Darryl Robin KUEHL, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Court of Appeals of Idaho

181 P.3d 533

145 Idaho 607

Darryl Robin KUEHL, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 30786.

Court of Appeals of Idaho.

January 8, 2008.

Review Denied April 15, 2008.

Molly J. Huskey, State Appellate Public Defender; Jason C. Pintler, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Ralph R. Blount, Deputy Attorney General, Boise, for respondent.

GUTIERREZ, Judge.

Darryl Robin Kuehl appeals from the district court's order summarily dismissing his application for post-conviction relief. We affirm.

I. BACKGROUND

Kuehl was convicted in 1997 for the crimes of 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. The facts of the case were previously summarized by this Court as follows:

Paul Gruber, the victim in this case, spent Christmas 1993 with his daughter in Reno, Nevada. On January 5, 1994, he returned to his home in Sandpoint, and was never heard from again. Gruber's daughter tried unsuccessfully to contact him for the next few weeks. Concerned because she could not reach Gruber, she filed a missing person's report on February 28, 1994.

An officer assigned to the case began investigating Gruber's disappearance. Based on information gathered during the investigation, the officer interviewed Kuehl and questioned him about Gruber's disappearance. Kuehl claimed that he and Gruber were involved in a business venture and that the last time he saw Gruber was on February 18, 1994. When Kuehl was shown a photograph of Gruber, Kuehl claimed that the person pictured in the photograph was not the Gruber he knew and implied that he must have been dealing with an imposter. The investigation into Gruber's disappearance continued and, on August 23, 1995, Gruber's badly decomposed body was found buried in the crawl space beneath his home. An autopsy revealed four gunshot wounds to the body, which were determined to be the likely cause of death.

In January 1996, the officer conducted a photographic lineup with a friend of Gruber's who claimed that he might be able to identify a person possibly involved in Gruber's disappearance and death. Gruber's friend identified Kuehl as the man he had seen in a videotape shown to him by Gruber and identified by Gruber as "Darryl." Kuehl was arrested on May 20, 1996, and charged with the first degree murder of Gruber, I.C. §§ 18-4001, 18-4003; grand theft, I.C. §§ 18-24031, 18-24071(b); and five counts of forgery, I.C. § 18-3601.

State v. Kuehl, Docket No. 24755 (Ct.App. May 6, 2002) (unpublished). During Kuehl's trial, there were several discussions between the court and Kuehl's counsel as to whether or not Kuehl would testify. On the second-to-last day of defense presentation for Kuehl's case, counsel announced that Kuehl would not testify. The court proceeded to inform Kuehl of his constitutional right not to take the stand, and of his right to testify if he so desired. The court stressed that it was Kuehl's decision to make in consultation with his lawyers. Kuehl informed the court that he had discussed the issue with his attorneys, and that he was satisfied with the choice he and his lawyers made. Following his convictions for first degree murder, grand theft and five counts of forgery, Kuehl's judgment of conviction and sentences were affirmed by this Court in an unpublished opinion. Kuehl, Docket No. 24755.

Kuehl filed a pro se application for post-conviction relief, asserting ten instances of ineffective assistance of trial counsel. The state filed a motion seeking summary dismissal. After taking judicial notice of the trial record, transcripts of the trial, and exhibits admitted at trial, the district court denied Kuehl's application for post-conviction relief. Kuehl filed several subsequent motions for reconsideration and other relief; however he appeals now only from the dismissal of his initial application. Specifically, Kuehl appeals from the dismissal of only one claim raised in his application for post-conviction relief: that his trial counsel provided ineffective assistance by depriving him of his right to testify.

II. STANDARD OF REVIEW

An application for post-conviction relief initiates a proceeding which 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). As with 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, however; an application must contain much more than "a short and plain statement of the claim" that would suffice for a complaint under Idaho Rule of Civil Procedure 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. State v. Ayala, 129 Idaho 911, 915, 935 P.2d 174, 178 (Ct.App.1996).

Idaho Code Section 19-4906 authorizes summary disposition 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 party opposing summary dismissal. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct.App.1993). Summary dismissal is appropriate where the record from the criminal action or other evidence conclusively disproves essential elements of the applicant's claims. Chouinard v. State, 127 Idaho 836, 839, 907 P.2d 813, 816 (Ct.App.1995).

III. DISCUSSION

On the day Kuehl was planning to testify, his two attorneys took him into the judge's library for consultation, during which counsel purportedly promised Kuehl that if he would agree not to testify, "counsel would inform the jury of all the issues they withheld from the trial." According to Kuehl, counsel did not fulfill their end of the agreement, thus denying Kuehl's right to testify through a false promise. The state counters that regardless of his motives for not testifying, there was a showing on the record that Kuehl voluntarily waived his right to testify on the advice of counsel. Furthermore, the state asserts Kuehl has failed to show any prejudice as a result of counsel's conduct to support an ineffective assistance claim. Kuehl's failure to satisfy the prejudice prong is dispositive of this appeal.

A claim of ineffective assistance of counsel may properly be brought under the post-conviction procedure act. Murray, 121 Idaho at 924-25, 828 P.2d at 1329-30. To prevail on an ineffective assistance of counsel claim, the defendant must show the attorney's performance was deficient and that the defendant was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674, 693 (1984); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct.App.1995). To establish a deficiency, the applicant has the burden of showing 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 show prejudice, the applicant must demonstrate 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.

Preliminarily, we address Kuehl's argument regarding the prejudice standard applicable in this case. Kuehl claims that the standard should not be that he must show the result would have been different, Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 697 but instead that but for counsel's failed assistance he would have insisted on testifying on his own behalf. Kuehl urges this court to adopt the standard for ineffective assistance of counsel used to analyze a guilty plea. That standard requires a defendant to show that there is reasonable probability that, but for c...