Lee v. State, 19043

• Decision Date: 03 June 1992
• Docket Number: No. 19043,19043
• Parties: Richard A. LEE, Plaintiff-Appellant, v. STATE of Idaho, Defendant-Respondent. Twin Falls, April 1992 Term
• Court: Idaho Supreme Court

Page 1131

832 P.2d 1131

122 Idaho 196

Richard A. LEE, Plaintiff-Appellant, v. STATE of Idaho, Defendant-Respondent.

No. 19043.

Supreme Court of Idaho,

Twin Falls, April 1992 Term.

June 3, 1992.

May & May Law Offices, Twin Falls, for plaintiff-appellant. Thomas D. Kershaw, Jr. argued.

Larry EchoHawk, Atty. Gen. and Michael A. Henderson, Deputy Atty. Gen., Boise, for defendant-respondent. Michael A. Henderson argued.

McDEVITT, Justice

BACKGROUND AND PRIOR PROCEEDINGS

A. Events Relating To The First Petition For Post-Conviction Relief.

Appellant pled guilty to and was convicted of two counts of vehicular manslaughter. Appellant was sentenced to a fixed term of seven (7) years on the first count and to a consecutive, indeterminate period of seven (7) years on the second count. Appellant's sentence was affirmed on appeal by the Idaho Court of Appeals. State v. Lee, 111 Idaho 489, 725 P.2d 194 (Ct.App.1986) [Lee I ].

Appellant then filed an I.C.R. 35 motion to reduce his sentence. In the memorandum in support of the I.C.R. 35 motion to reduce his sentence, appellant pointed to "additional factors in mitigation ... not ... previously heard or considered by the Court." In this regard, appellant asserted that he had been a model prisoner, that the prison was not a proper environment for him, and that he needed treatment for his alcohol problem. Appellant requested the district court to reduce his sentence to "two (2) indeterminate terms of not to exceed five (5) years ... to be served concurrently." The district court granted this motion only to the extent that it reduced the indeterminate seven (7) year sentence on count two to an indeterminate five (5) year sentence.

Thereafter, appellant filed a second I.C.R. 35 motion, claiming that the consecutive nature of the sentence was illegal. The district court denied the second I.C.R. 35 motion, and the Idaho Court of Appeals affirmed. State v. Lee, 116 Idaho 515, 777 P.2d 737 (Ct.App.1989), review denied [Lee II ].

On July 7, 1988, appellant, appearing pro se, filed his first petition for post-conviction relief. An order appointing a public defender to represent appellant in this action was entered on July 24, 1989. Thereafter, on September 20, 1989, an amended first petition was filed with the district court. The issues raised in the first amended petition for post conviction relief were: (1) ineffective assistance of counsel; and (2) coercion of guilty pleas. The first amended petition was denied by the district court on February 26, 1990.

On April 11, 1990, appellant filed a notice of appeal, appealing from the denial of his first petition for post-conviction relief. On April 13, 1990, appellant moved the Idaho Supreme Court for leave to late file the notice of appeal. Additionally, appellant's counsel filed an affidavit stating that she had been ill and out of her office for a few days preceding the last day to file the notice of appeal. In response, the State filed a motion to dismiss the appeal.

On May 17, 1990, the Idaho Supreme Court denied appellant's motion and granted the State's motion dismissing the appeal.

B. Events Relating To The Second Petition For Post-Conviction Relief.

On June 28, 1990, appellant filed his second petition for post-conviction relief. In his second petition, appellant listed two claims for relief: (1) counsel's failure to comply with appellant's request to appeal constituted ineffective assistance of counsel, as guaranteed by the Sixth Amendment to the Constitution of the United States as well as article 1, § 13 of the Idaho Constitution; and (2) that because appellant has a right to appeal from the district court's decision, he was denied due process of law, as guaranteed by the Fourteenth Amendment to the Constitution of the United States as well as article 1, § 13 of the Idaho Constitution. Appellant requested that the district court either "[v]acate and then reinstate the original 'Memorandum Decision Denying Petitioner's Claim For Post-Conviction Relief' thereby allowing a timely 'Notice of Appeal' to be filed ..." or "ORDER that the remainder of Petitioner's current sentence be vacated, with prejudice, and Petitioner be DISCHARGED from the custody of the Idaho State Board of Corrections...."

On July 12, 1990, the State filed its answer to the second petition for post-conviction relief. The State requested the district court to "[d]ismiss the Petition pursuant to Idaho Code Section 19-4906(B)," and to "[d]eny the Petition for Post-Conviction Relief."

The district court denied appellant's second amended petition for post-conviction relief. In its memorandum decision, the district court stated that "[t]he issue presented here is whether a claim of ineffective assistance of counsel allegedly occurring in a prior civil action for post-conviction relief may be raised as an issue in a second and subsequent petition for post-conviction relief." The district court turned to I.C. § 19-4908, as relevant to "[s]uccessive applications for post-conviction relief." Additionally, the district court held that Wolfe v. State, 113 Idaho 337, 743 P.2d 990 (Ct.App.1987), review denied, controlled this case. The district court stated that the Wolfe court held that "the ineffectiveness of counsel is not among the permissible grounds for filing another post-conviction relief application under I.C. § 19-4901. The statutory scheme is designed to deal with collateral attacks upon allegedly improper convictions and sentences, not collateral attacks upon other post-conviction proceedings." Wolfe, 113 Idaho at 339, 743 P.2d at 992 (emphasis added by district court). Furthermore, the district court ruled that since the only issue raised by appellant was one of law, an evidentiary hearing was not required. The district court also held that Flores v. State, 104 Idaho 191, 657 P.2d 488 (Ct.App.1983), in which "[t]he Idaho Court of Appeals held that if Flores had directed his attorney to file an appeal and if the attorney's inaction caused Flores not to perfect the appeal, he would be entitled to relief on his post-conviction petition," was distinguishable from this case. In doing so, the district court stated that "[t]he fact in Flores that distinguishes it from this action is that the petition for post conviction relief in Flores On November 9, 1990, appellant filed a motion to alter or amend the judgment pursuant to I.R.C.P. 59(e). In the motion to alter or amend the judgment, appellant argued that the district court failed to address his due process cause of action. In this regard, appellant asserted that the issue was "[w]hether the dismissal of the appeal violated the Due Process Clause of the Fourteenth Amendment." Appellant urged the district court to consider the case of Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), wherein the United States Supreme Court affirmed the United States District Court's decision granting habeas corpus relief to the petitioner and ordered the petitioner released unless the state either reinstated petitioner's appeal or retried him. Furthermore, appellant reasserted his reliance in the Flores case.

                [122 Idaho 198] was asserted following the conviction and sentence, a criminal matter, not a prior post-conviction relief petition, a civil matter."   The district court concluded that it "views the matter as one of jurisdiction and based on I.C. § 19-4908 and the holding in Wolfe, finds there is no jurisdiction to proceed on Lee's application for post-conviction relief."   The order denying appellant's second application for post-conviction relief was dated November 5, 1990
                

The hearing on the motion to alter or amend the judgment was held on November 26, 1990. After the hearing, the district court denied the motion and entered an order, dated November 28, 1990, denying appellant's second petition for post-conviction relief. An amended order to the same effect was dated December 6, 1990.

Appellant filed his notice of appeal on December 11, 1990. In his...