LaBelle v. State

• Decision Date: 29 April 1997
• Docket Number: No. 23056,23056
• Citation: 937 P.2d 427,130 Idaho 115
• Parties: Timothy J. LaBELLE, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

Page 427

937 P.2d 427

130 Idaho 115

Timothy J. LaBELLE, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 23056.

Court of Appeals of Idaho.

April 29, 1997.

John A. Church, Lewiston, for appellant.

Alan G. Lance, Attorney General; L. LaMont Anderson, Deputy Attorney General, Boise, for respondent.

PERRY, Judge.

In this case we are asked to review the summary dismissal of an application for postconviction relief. After reviewing the record and applicable law, we affirm.

I. FACTS AND PROCEDURE

Timothy J. LaBelle was found guilty by a jury of three counts of lewd conduct with a minor under sixteen. I.C. § 18-1508. He received three concurrent unified sentences of twenty years, with minimum periods of confinement of ten years. LaBelle appealed to the Idaho Supreme Court. State v. LaBelle, 126 Idaho 564, 887 P.2d 1071 (1995). In that direct appeal, LaBelle raised three issues: whether he was entitled to have the victims physically examined by a medical expert, whether the district court erred in admitting prior bad acts evidence regarding other instances of molestation, and whether the sentences imposed were an abuse of the district court's discretion. The Supreme Court affirmed the judgments of conviction and sentences. Id.

LaBelle thereafter filed a pro se application for post-conviction relief. LaBelle claimed that his appellate counsel was ineffective in the direct appeal. The district court appointed new counsel to represent LaBelle in the post-conviction proceedings that followed. The state answered the application and later moved for summary disposition. At the conclusion of a hearing on the state's motion, the district court summarily dismissed LaBelle's application. From that dismissal order, LaBelle appeals.

II. ANALYSIS

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). An application differs from a complaint in an ordinary civil action, however, for 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.

Summary dismissal of an application pursuant to Idaho Code Section 19-4906 is the procedural equivalent of summary judgment under I.R.C.P. 56. Like a plaintiff On review of a dismissal of a post-conviction relief application without an evidentiary hearing, we will determine whether a genuine issue of fact exists based on the pleadings, depositions and admissions together with any affidavits on file; moreover, the court will liberally construe the facts and reasonable inferences in favor of the non-moving party. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct.App.1993).

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). 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 is permissible only when the applicant's evidence has raised no genuine issue of material fact which, 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).

A claim of ineffective assistance of counsel may properly be brought under the postconviction 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 that the attorney's performance was deficient, and that the defendant was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (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 that the attorney's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064; Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988); Russell, 118 Idaho at 67, 794 P.2d at 656. There is a strong presumption that trial counsel's performance falls within the wide range of professional assistance. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064; Aragon, 114 Idaho at 760, 760 P.2d at 1176. To establish prejudice, the applicant must show a reasonable probability that, but for the attorney's deficient performance, the outcome of the trial would have been different. Aragon, 114 Idaho at 761, 760 P.2d at 1177; Russell, 118 Idaho at 67, 794 P.2d at 656. Therefore, in reviewing this case, we must determine whether LaBelle presented facts in his post-conviction relief application, which are supported by admissible evidence and, if proven true, would establish that counsel was deficient and that this deficiency prejudiced LaBelle's appeal.

The state argues that the trial record was not made a part of the record in this appeal, and this Court should therefore not address the merits of the application. LaBelle contends that, because the Idaho Supreme Court was provided with the trial transcripts and record in the direct appeal, we have adequate access to those documents and should consider them in reviewing the merits of his claims. It is the responsibility of the appellants to provide a sufficient record to substantiate their claims on appeal. Chenoweth v. Sanger, 123 Idaho 189, 191, 846 P.2d 191, 193 (1993); State v. Chavez, 120 Idaho 460, 462, 816 P.2d 1017, 1019 (Ct.App.1991). As this Court has previously stated:

A post-conviction proceeding is not an extension of the criminal case from which it arises. Rather, it is a separate civil action in which the applicant bears the burden of proof imposed upon a civil plaintiff. Paradis v. State, 110 Idaho 534, 536, 716 P.2d 1306, 1308 (1986); Clark v. State, [92 Idaho 827, 452 P.2d 54 (1969) ]. No part of the record from the criminal case Roman v. State, 125 Idaho 644, 648, 873 P.2d 898, 902 (Ct.App.1994). Although the district court may have, on its own initiative, reviewed portions of the record from the underlying criminal action, LaBelle did not include such material in the record before this Court on appeal, and this Court will not go in search of it. See Munster v. State, 129 Idaho 65, 68, 921 P.2d 765, 768 (Ct.App.1996). LaBelle could have, but did not, move to augment the record in this case with the appellate record from his direct appeal. In the absence of an adequate record on appeal, an appellate court will not presume error. Id. Accordingly, we will review LaBelle's application and the attached affidavits and documents to determine whether a genuine issue of material fact exists. We will not, however, presume error where the record before us reveals none.

becomes part of the record in the post-conviction proceeding unless it is entered as a[n] exhibit. Transcripts of the pretrial proceedings, the trial, and sentencing hearing in the criminal case, even if previously prepared as a result of a direct appeal or otherwise, are not before the trial court in the post-conviction proceeding and do not become part of the record on appeal unless presented as exhibits.

In the post-conviction relief proceedings below, LaBelle claimed that his counsel in the direct appeal failed to raise eleven reviewable errors. On appeal, LaBelle continues his argument regarding eight of those alleged errors. We note that a criminal defendant's right to effective representation by counsel extends to all critical stages of the proceedings, including appeal. Beasley v. State, 126 Idaho 356, 359, 883 P.2d 714, 717 (Ct.App.1994). See also Flores v. State, 104 Idaho 191, 194, 657 P.2d 488, 491 (Ct.App.1983), citing Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). The decision whether to appeal rests with the defendant. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983); Mata v. State, 124 Idaho 588, 593, 861 P.2d 1253, 1258 (Ct.App.1993). A complete refusal to file an appeal is ineffective assistance of counsel. Beasley, 126 Idaho at 360, 883 P.2d at 718; Mata, 124 Idaho at 593, 861 P.2d at 1258. Where counsel refuses a defendant's request to appeal, prejudice is presumed. Beasley, 126 Idaho at 362, 883 P.2d at 720. LaBelle's appellate counsel did not refuse to pursue an appeal, and this case is therefore distinguishable from those wherein the presumption of prejudice arises.

Appellate counsel is not required to raise every conceivable...