Marlow v. State
| Docket Number | 48469 |
| Decision Date | 14 December 2021 |
| Parties | BRANDON CODY MARLOW, Petitioner-Appellant, v. STATE OF IDAHO, Respondent. |
| Court | Idaho Court of Appeals |
UNPUBLISHED OPINION
Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Scott L. Wayman, District Judge.
Judgment summarily dismissing petition for post-conviction relief affirmed.
Nevin Benjamin & McKay, LLP; Dennis Benjamin, Boise, for appellant.
Hon Lawrence G. Wasden, Attorney General; John C. McKinney Deputy Attorney General, Boise, for respondent.
Brandon Cody Marlow appeals from the district court's judgment summarily dismissing his petition for post-conviction relief. Marlow argues that the district court erred when it summarily dismissed his claim that trial counsel was ineffective in failing to advise Marlow of the waiver of his right to appeal contained in the plea agreement. For the reasons set forth below, we affirm.
This case arose after Marlow was charged with grand theft, two counts of aggravated assault, burglary, two counts of robbery, and two counts of second degree kidnapping. The case proceeded to a jury trial where Marlow was acquitted of one count of aggravated assault, and the jury could not reach a verdict on the remaining charges.
The State elected to retry the remaining charges. At the pretrial conference, the State offered a plea agreement to Marlow. After discussing the agreement with his attorney, Marlow accepted the offer and entered an Alford[1] plea to second degree kidnapping and robbery. As part of the plea agreement, Marlow agreed to waive both his right to appeal and his right to withdraw the guilty plea. All additional charges were dismissed by the State.
After accepting the plea agreement, Marlow filed a motion to dismiss and a motion to withdraw his guilty plea. The motion to dismiss was based upon Marlow's assertion that the State had intimidated his alibi witness. After an evidentiary hearing, the district court denied the motion.
Marlow's motion to withdraw his guilty plea was based, among other contentions, upon a lack of preparedness for trial, additional evidence, and the claimed alibi. In the State's brief in response to the motion, the State argued against these substantive claims and also asserted that Marlow's plea was entered knowingly and voluntarily, and that his motion should be dismissed due to the waiver of his rights to appeal and to withdraw his plea. A hearing was held on the motion at which the district court heard testimony and argument regarding the substantive claims as well as Marlow's waiver of his rights incident to the plea agreement. In response to a question regarding his knowledge of the waiver of his right to withdraw his guilty plea, Marlow testified:
I didn't--at the time I did not know of that because I have a hard time reading without glasses, and I was not aware that I was not able to appeal it or withdraw my guilty plea or else I would not have signed the deal. I found that out by my attorney afterwards.
Despite his claim that he did not know of the waiver of his rights to withdraw his guilty plea and to appeal, the district court found that Marlow waived his right, that Marlow's guilty plea was knowingly, intelligently, and voluntarily made, and that Marlow failed to establish a just reason to withdraw his plea.[2]
Marlow subsequently appealed, arguing that the district court erred when it denied his motion to dismiss and motion to withdraw his guilty plea. The State filed a motion to dismiss, citing Marlow's appeal waiver. Rather than attempt to show good cause why the appeal should not be dismissed, Marlow sent a letter to the Court indicating that he did not intend to file any further response. The Idaho Supreme Court subsequently granted the State's motion and dismissed Marlow's appeal.
Marlow next filed a post-conviction petition asserting, as relevant here, that his counsel failed to inform him of the waiver of his right to appeal, which constituted ineffective assistance of counsel. The State filed a motion for summary disposition arguing, among other things, that Marlow's claim that his guilty plea was not entered knowingly, intelligently, and voluntarily because he did not know of the waiver was belied by the record and barred by res judicata because the claim had previously been decided and that decision was final. The district court granted the State's motion. Marlow timely appeals.
On appeal from an order of summary dismissal, we apply the same standards utilized by the trial courts and examine whether the petitioner's admissible evidence asserts facts which, if true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925, 929 (2010); Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). Over questions of law, we exercise free review. Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069 (2009); Downing v. State, 136 Idaho 367, 370, 33 P.3d 841, 844 (Ct. App. 2001).
Marlow argues that the district court erred in summarily dismissing his ineffective assistance of counsel claim. Specifically, Marlow argues that he presented a genuine issue of material fact by averring that his counsel failed to inform him that the plea offer contained a waiver of his right to appeal (and his right to withdraw his guilty plea), [3] and that this failure prejudiced him because he would not have accepted the plea agreement had he known about the waiver. The State argues that Marlow's claim that his guilty plea was not made knowingly, intelligently, and voluntarily because he did not know of the waiver is barred by res judicata, and that Marlow failed to show that rejecting the plea agreement would have been rational. We agree with the State.
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 that there is a reasonable probability that, but for counsel's errors, he or she 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). This Court 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).
The doctrine of res judicata bars relitigation of issues that have been previously decided in an action between the same litigants. See State v. Rhoades, 134 Idaho 862, 863, 11 P.3d 481, 482 (2000); State v. Beam, 115 Idaho 208, 210-11, 766 P.2d 678, 680-81 (1988). Whether an action is barred by res judicata is a question of law over which we exercise free review. Rhoades, 134 Idaho at 863, 11 P.3d at 482.
Whether Marlow knowingly waived his right to appeal in the plea agreement has already been litigated. In post-conviction, Marlow asserted that he did not know of the waiver prior to pleading guilty because counsel failed to make it known to him before he accepted the plea agreement.[4] As noted, however, incident to the motion to withdraw guilty plea filed in the trial court, Marlow claimed that he was unaware of the waiver of the right to appeal in the plea agreement. Rejecting this claim, the trial court found that Marlow's guilty pleas were knowing, voluntary, and intelligent. Thus, independent of what counsel did or did not do, the trial court rejected Marlow's claim that he did not know about the appellate waiver in light of Marlow's signature on the written plea agreement, which included the waiver, and the plea colloquy.[5] In other words, the district court concluded Marlow's assertion was belied by the record and rejected his testimony that he did not understand the terms of the agreement. Beyond the validity of Marlow's plea being previously litigated in the context of his motion to withdraw the plea, it is well-settled that post-conviction claims that are belied by the record are subject to summary dismissal. See Campos v. State, 165 Idaho 90, 94, 438 P.3d 787, 791 (Ct. App. 2019). A district court is not required to conduct an evidentiary hearing to determine which contrary statements are more credible. Id. This is particularly true where, as here, the petitioner has already offered testimony on the issue.
Marlow appealed the trial court's denial of his motion to withdraw guilty plea. The State filed a motion to dismiss citing the appeal...
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