Leonard v. State
| Decision Date | 02 July 2013 |
| Docket Number | Docket No. 39067,2013 Unpublished Opinion No. 566 |
| Parties | PHILLIP THOMAS LEONARD, JR., Petitioner-Appellant, v. STATE OF IDAHO, Respondent. |
| Court | Idaho Court of Appeals |
Stephen W. Kenyon, Clerk
THIS IS AN UNPUBLISHED
OPINION AND SHALL NOT
BE CITED AS AUTHORITY
Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Bradly S. Ford, District Judge.
Judgment denying petition for post-conviction relief, affirmed.
Nevin, Benjamin, McKay & Bartlett; Robyn Fyffe, Boise, for appellant. Robyn Fyffe argued.
Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent. Russell J. Spencer argued.
Phillip Thomas Leonard, Jr. appeals from the judgment denying his petition for post-conviction relief following an evidentiary hearing. For the reasons set forth below, we affirm.
In January 2009, a detective went to Leonard's home to discuss allegations that Leonard had engaged in sexual conduct with a minor. Leonard agreed to speak with the detective and rode to the police station in the detective's vehicle, where he was advised of his Miranda1 rights. Leonard denied any sexual contact with the minor and agreed to the detective's request that he submit to a polygraph test. Upon Leonard's request, the test was scheduled for the next day andthe detective agreed to transport him to the test. Later that day Leonard called the detective and told the detective he contacted an attorney who advised him to submit to the polygraph if he was telling the truth. Leonard indicated he was apprehensive about what would occur if he took the test. The detective assured Leonard he would not be taken to jail following the test and that if he passed the test, he would most likely be cleared as a suspect.
The detective picked Leonard up the next day and transported him to the station for administration of the polygraph test, again informing Leonard he was not under arrest. A second detective informed Leonard of his Miranda rights at the station. Leonard agreed to proceed with the test, but stated he did not want to discuss "anything" afterward. During the test, Leonard was asked questions regarding his personal sexual behavior, as well as whether he engaged in sexual conduct with the minor, the latter of which he continued to deny. After the test was completed, a detective asked if Leonard wanted to discuss the results. Leonard agreed and was told he failed the test. The detectives told Leonard that they believed he was lying and, given the evidence gathered, "it was not looking good for his part." Leonard requested counsel before he would continue talking. The interview ended and the detective gave Leonard a ride back to his residence. On the way back, Leonard inquired as to the next step in the investigation and was told the case would potentially go to a grand jury who would determine whether the case would go forward. When they arrived at Leonard's residence, Leonard opened the car door and then asked the detective "how long it would take to come to the police department and confess" and indicated he did not have money to hire an attorney. After inquiring and being told by an officer that he could not be appointed an attorney until he was arrested, Leonard said he felt he should return to the station and explain what had happened. At the station, Leonard was again advised of his Miranda rights and confessed to engaging in sexual contact with the victim.
Leonard was charged by indictment with lewd conduct with a minor. Pursuant to a plea agreement, he pled guilty, and following a period of retained jurisdiction, was sentenced to a unified term of twenty years, with three years determinate. He filed a petition for post-conviction relief alleging several claims, including that his trial counsel had been ineffective for failing to file a motion to suppress his confession on the basis that his Miranda rights were violated. The district court held an evidentiary hearing on the petition, at which Leonard's trial counsel testified he did not file a motion to suppress because he did not believe it would succeed given his assessment that Leonard was not in "custody" at the time he invoked his right tocounsel. The district court agreed and issued a written order and subsequent judgment denying the petition. Leonard now appeals.
Leonard contends the district court erred in denying his petition for post-conviction relief after an evidentiary hearing because he proved he received ineffective assistance of counsel at trial due to counsel's failure to file a motion to suppress his confession. In order to prevail in a post-conviction proceeding, the petitioner must prove the allegations by a preponderance of the evidence. Idaho Code § 19-4907; Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); Baxter v. State, 149 Idaho 859, 861, 243 P.3d 675, 677 (Ct. App. 2010). When reviewing a decision denying post-conviction relief after an evidentiary hearing, an appellate court will not disturb the lower court's factual findings unless they are clearly erroneous. Idaho Rule of Civil Procedure 52(a); Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004); Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence are all matters solely within the province of the district court. Dunlap, 141 Idaho at 56, 106 P.3d at 382; Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We exercise free review of the district court's application of the relevant law to the facts. Baxter, 149 Idaho at 862, 243 P.3d at 678.
A claim of ineffective assistance of counsel may properly be brought under the Uniform Post-Conviction Procedure Act. Barcella v. State, 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct. App. 2009). To prevail on an ineffective assistance of counsel claim, the petitioner must show that the attorney's performance was deficient and that the petitioner was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Self v. State, 145 Idaho 578, 580, 181 P.3d 504, 506 (Ct. App. 2007). To establish a deficiency, the petitioner has the burden of showing that the attorney's representation fell below an objective standard of reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988); Knutsen v. State, 144 Idaho 433, 442, 163 P.3d 222, 231 (Ct. App. 2007). Where, as here, the petitioner was convicted upon a guilty plea, to satisfy the prejudice element, the petitioner must show there is a reasonable probability that, but for counsel's errors, he would not have pled guilty and would have insisted on going to trial. Plant v. State, 143 Idaho 758, 762, 152 P.3d 629, 633 (Ct. App. 2006). ThisCourt has long adhered to the proposition that tactical or strategic decisions of trial counsel will not be second-guessed on appeal unless those decisions are based on inadequate preparation, ignorance of relevant law, or other shortcomings capable of objective evaluation. Gonzales v. State, 151 Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011).
In a post-conviction proceeding challenging an attorney's failure to pursue a motion in the underlying criminal action, the district court may consider the probability of success of the motion in question in determining whether the attorney's inactivity constituted ineffective assistance. Lint v. State, 145 Idaho 472, 477, 180 P.3d 511, 516 (Ct. App. 2008). Where the alleged deficiency is counsel's failure to file a motion, a conclusion that the motion, if pursued, would not have been granted by the trial court, is generally determinative of both prongs of the Strickland test. Lint, 145 Idaho at 477-78, 180 P.3d at 516-17. Thus, we must determine whether a motion to suppress, had it been filed in this case, would likely have been granted by the trial court.
At the evidentiary hearing on his post-conviction petition, Leonard testified he raised the possibility of filing a motion to suppress with his trial counsel based on his request for counsel during his second interview with police, prior to his confession. Trial counsel testified he reviewed the discovery relevant to Leonard's confession and determined there was not a valid argument to suppress because Leonard was not in custody when he invoked his right to counsel such that Miranda applied. The district court denied this claim in a memorandum opinion, determining Leonard's confession was "freely and voluntarily given" after he received Miranda warnings although not in custody and, therefore, it was not ineffective assistance for trial counsel to fail to file a motion to suppress.
In Maryland v. Shatzer, 559 U.S. 98, 103 (2010), the United States Supreme Court explained the origins and the parameters of the right to counsel pursuant to the Fifth Amendment2 as follows:
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