McCabe v. State, Docket No. 33636 (Idaho App. 7/14/2008)
| Decision Date | 14 July 2008 |
| Docket Number | Docket No. 33636. |
| Parties | MELVIN A. McCABE, Petitioner-Appellant, v. STATE OF IDAHO, Respondent. |
| Court | Idaho Court of Appeals |
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Jerome County. Hon. John K. Butler, District Judge.
Order summarily dismissing petition for post-conviction relief, affirmed in part and reversed in part, and case remanded.
Nevin, Benjamin, McKay & Bartlett; Dennis A. Benjamin, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.
Melvin A. McCabe appeals from the summary dismissal of his petition for post-conviction relief. We affirm in part, reverse in part, and remand for an evidentiary hearing.
McCabe was initially charged with first degree arson, Idaho Code § 18-802, for setting fire to his estranged wife's residence. The state also alleged that McCabe was subject to a sentencing enhancement as a persistent violator, I.C. § 19-2514. The jury trial that followed ended in a mistrial due to a hung jury. Thereafter, the parties arrived at a plea agreement in which McCabe agreed to plead guilty to the reduced charge of felony malicious injury to property, I.C. § 18-7001, and to pay restitution. In return, the state dismissed the persistent violator enhancement and agreed to recommend that McCabe's sentence run concurrently with the sentence in a Bannock County case. The plea agreement was conditional, with McCabe initially reserving the right to appeal three issues, although McCabe withdrew one of the issues during the plea hearing.
The district court imposed a determinate five-year sentence and ordered that it run concurrent with the sentence imposed in a Bannock County case, but the court also suspended the sentence and placed McCabe on probation for five years.1 One year later, McCabe's probation was revoked and his sentence was modified to a unified five-year term, with three years determinate. He thereupon filed a pro se petition for post-conviction relief, raising two claims of ineffective assistance of counsel and one claim challenging the constitutional validity of his guilty plea. The district court issued a notice of intent to dismiss, to which McCabe responded with an affidavit further supporting his original petition. McCabe also raised four new claims for post-conviction relief in his response. The district court summarily dismissed McCabe's petition, addressing only those claims raised in the initial petition for post-conviction relief. Several days later, McCabe filed a motion to amend his petition to include the claims raised in his response. The district court denied this motion, at which point McCabe filed a motion to reconsider referencing in a footnote his prior request for counsel. The district court denied the motion to reconsider, on the basis that a pro se petitioner is held to the same standard as an attorney, and therefore McCabe's failure to follow the proper procedures for amending a petition supported the court's denial of his motion to amend. McCabe subsequently filed a notice of appeal and request for appointment of counsel.
McCabe raises three issues on appeal. First, he contends the district court erred when it summarily dismissed his petition for post-conviction relief without first ruling on his motion for appointment of counsel. Second, he asserts that the district court improperly applied precedent and erred by failing to consider the claims raised in his response to the court's notice of intent to dismiss. Finally, McCabe challenges the district court's summary dismissal of the three claims raised in his initial petition for post-conviction relief.
McCabe's first assertion of error is that the district court failed to rule on a request for appointment of counsel prior to ruling on any of the substantive issues raised in his petition for post-conviction relief. If a post-conviction applicant is unable to pay for the expenses of representation, the trial court may appoint counsel to represent the applicant in preparing the application, in the trial court and on appeal. I.C. § 19-4904. The decision to grant or deny a request for court-appointed counsel lies within the discretion of the district court. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004). When a district court is presented with a request for appointed counsel, the court must address this request before ruling on the substantive issues in the case. Charboneau, 140 Idaho at 792, 102 P.3d at 1111. The district court abuses its discretion where it fails to determine whether an applicant for post-conviction relief is entitled to court-appointed counsel before denying the application on the merits. See Id. at 793, 102 P.3d at 1112.
The first mention of McCabe's alleged request for appointment of counsel comes in the form of a footnote in his motion to reconsider the district court's order denying his motion to amend. The record itself does not contain a motion for appointment of counsel, nor does it contain the cover-letter to the initial petition for post-conviction relief which is purported to contain the request for counsel. It is the responsibility of the appellant to provide a sufficient record to substantiate his or her claims on appeal. State v. Murinko, 108 Idaho 872, 873, 702 P.2d 910, 911 (Ct. App. 1985). In the absence of an adequate record on appeal to support the appellant's claims, we will not presume error. State v. Beason, 119 Idaho 103, 105, 803 P.2d 1009, 1011 (Ct. App. 1991).
The district court relied on Cowger v. State, 132 Idaho 681, 978 P.2d 241 (Ct. App. 1999), when it refused to consider the claims raised by McCabe in his response to the court's notice of intent to dismiss. McCabe posits that the district court misapplied Cowger and should have appointed counsel sua sponte and allowed time for the filing of an amended petition.
As with McCabe, Cowger, acting pro se, raised new claims in response to a notice of intent to dismiss. The district court attempted to address these new claims in its order summarily dismissing Cowger's petition, and Cowger pursued the claims on appeal to this Court. We held that:
The procedure contemplated by the Uniform Post-Conviction Procedure Act does not permit new allegations to be raised in response to a notice of intent to dismiss. The applicant, upon discovering additional claims, should amend his or her application and renew his or her motion for court-appointed counsel based upon the new allegations. To allow additional claims to be raised in the response to the district court's notice of intent to dismiss would require that the district court issue a further notice of intent to dismiss as to those claims in order to give the applicant an opportunity to respond to the court's reasons for dismissing the new claims within the time statutorily provided. Conceivably, the post-conviction process could go on indefinitely because the applicant may simply raise a new issue in each response to a notice of intent to dismiss in order to circumvent its dismissal. An applicant's "response" then, would be encouraged to be nonresponsive. Thus, we are constrained to conclude that an applicant must file an amended application when he or she desires to raise additional issues in a post-conviction case. See I.C. § 19-4906(b).
Cowger, 132 Idaho at 686-87, 978 P.2d at 246-47. Cowger's new claims were not reviewed on appeal, although we conceded that in a situation such as Cowger's, "it may be appropriate for the district court to sua sponte reconsider its denial of the applicant's motion for court-appointed counsel and, upon appointment, allow counsel to review the matter for the filing of an amended application." Id. at 687, 978 P.2d at 247. This last statement, upon which McCabe bases his argument, is advisory only and not grounds for reversing the order of the district court in this case. As discussed above, there is nothing in the record to indicate that a request for counsel existed which the court could spontaneously reconsider and grant. What Cowger makes clear, however, is that new claims raised in response to a notice of intent to dismiss, instead of in an amended petition, are not properly before the district court. Id.
McCabe argues that the district court's adherence to Cowger and refusal to consider his new claims results in a deprivation of his constitutional right of access to the courts. "It is now established beyond doubt that prisoners have a constitutional right of access to the courts." Bounds v. Smith, 430 U.S. 817, 821 (1977), limited by Lewis v. Casey, 518 U.S. 343, 350-51 (1996); Madison v. Craven, 141 Idaho 45, 48, 105 P.3d 705, 708 (Ct. App. 2005). That access must be adequate, effective, and meaningful. Madison, 141 Idaho at 48, 105 P.3d at 708. Access can be provided through adequate law libraries or assistance from persons trained in the law, although these are not the exclusive means of providing access to the courts. Bounds, 430 U.S. at 828-30. McCabe asserts that he was not aware of the technical pleading requirement of the Uniform Post Conviction Procedure Act (UPCPA) or the proper procedures for filing an amended petition. If he had known about those rules, he "obviously" would have adhered to them. He further argues that the fact that he didn't follow these rules makes it clear that he didn't have adequate access to legal materials. His conclusion is that he was entitled to an attorney to pursue the new claims due to the obvious deficiency in the prison law library. We disagree. First, McCabe had the opportunity to include these same claims in his original petition, but simply omitted them. It was his own oversight, not something done by the state, that caused his failure to present the...
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