Milburn v. State
| Decision Date | 03 October 1997 |
| Docket Number | No. 22522,22522 |
| Citation | 946 P.2d 71,130 Idaho 649 |
| Parties | Darin Jay MILBURN, Petitioner-Appellant, v. STATE of Idaho, Respondent. |
| Court | Idaho Court of Appeals |
Anderson Law Office, Boise, for petitioner-appellant.
Alan G. Lance, Attorney General; Catherine O. Derden, Deputy Attorney General, Boise, for respondent.
This is an appeal from a district court's order summarily dismissing an application for post-conviction relief which asserted, inter alia, a claim of ineffective assistance of counsel. Because we conclude that the applicant's evidence raises factual issues regarding the adequacy of the legal representation he received during his criminal trial, we reverse the district court's order dismissing the application.
In April 1992, Darin Milburn was charged with first degree murder for the shooting death of Carey Shaddy. A jury found Milburn guilty of second degree murder, and he was sentenced to life in prison with a twelve-year minimum term of confinement. Following sentencing, Milburn filed a motion for new trial, arguing that his defense attorneys had not provided effective representation in pretrial preparation and at trial. After an evidentiary hearing at which extensive evidence was presented relating to the defense attorneys' performance, the district court denied Milburn's motion for new trial. Milburn then filed an appeal from the judgment of conviction and from the district court's denial of his motion for new trial. The appeal was dismissed, however, pursuant to I.A.R. 21 after Milburn failed to file an appellate brief.
Subsequently, Milburn filed an application for post-conviction relief, again alleging that he had been denied effective assistance of counsel and also claiming police and prosecutorial misconduct. The State moved for summary dismissal of the post-conviction application pursuant to I.C. § 19-4906(c), urging that Milburn's claims were barred by res judicata and by the terms of I.C. § 19-4901(b). In response to the motion, Milburn's post-conviction counsel informed the court that Milburn did not wish to relitigate the ineffective assistance of counsel issue that had been presented on the motion for a new trial and that Milburn therefore would rely upon the record made at the evidentiary hearing on that motion as his evidence supporting the ineffective assistance claims in the post-conviction action. He advised the court that he was incorporating the ineffective assistance of counsel cause of action into the post-conviction proceeding "to preserve it for appeal." The district court concluded that Milburn's ineffective assistance of counsel claims were barred, as the State argued. As an alternative basis for the dismissal the court also reiterated its holding, made on the same evidentiary record in response to Milburn's motion for a new trial, that Milburn had not proved ineffective assistance of counsel. As to the remainder of Milburn's post-conviction claims the district court held that they were not supported by evidence. Therefore the State's motion for summary disposition was granted. This appeal followed.
ANALYSIS
We must first address the State's contention that, as the district court held, Milburn is barred from raising his ineffective assistance of counsel claim. The State argues that the dismissal of Milburn's direct appeal rendered the underlying district court decision denying the motion for new trial, including the ineffective assistance of counsel claim, final for purposes of res judicata. The State also contends that Milburn is precluded from raising this claim by terms of I.C. § 19-4901(b). That section states in part:
Any issue which could have been raised on direct appeal, but was not, is forfeited and may not be considered in post-conviction proceedings, unless it appears to the court, on the basis of a substantial factual showing by affidavit, deposition or otherwise, that the asserted basis for relief raises a substantial doubt about the reliability of the finding of guilt and could not, in the exercise of due diligence have been presented earlier.
According to the State, because Milburn's ineffective assistance of counsel claim was initially addressed on his motion for a new trial and could have been pursued on direct appeal, it cannot be reasserted in a post-conviction action.
We conclude that the State's argument is without merit. A similar circumstance was considered by the Idaho Supreme Court in Parrott v. State, 117 Idaho 272, 274, 787 P.2d 258, 260 (1990). Parrott had been found guilty of a felony and thereafter filed a motion for a new trial based on ineffective assistance of counsel. The new trial motion was denied and Parrott appealed, but he later withdrew the appeal. Parrott then filed an application for post-conviction relief based primarily upon allegations of ineffective assistance of counsel. His post-conviction action was summarily dismissed. On appeal from that dismissal order, the Supreme Court considered whether the post-conviction action was barred because the same claim of ineffective assistance had been determined on his motion for a new trial. The Court held:
Since Parrott's first appeal was withdrawn before briefing or oral argument, the issue of ineffective assistance of counsel has not been considered by this Court. Accordingly, the earlier appellate proceeding has no res judicata effect on Parrott's post conviction relief proceedings. We may therefore consider the merits of Parrott's petition.
Id. at 274, 787 P.2d at 260. The State contends that Milburn's case is distinguishable from Parrott because Milburn's direct appeal was not voluntarily withdrawn but, rather, was dismissed for failure to file an appellate There is a further reason that the order denying Milburn's motion for a new trial and the abandoned direct appeal should not be viewed as a bar to his post-conviction action. Milburn's alleged right to relief for ineffective assistance of counsel could not properly be presented on a motion for a new trial. The exclusive grounds upon which a new trial may be granted are set forth in I.C. § 19-2406. See State v. Davis, 127 Idaho 62, 65, 896 P.2d 970, 973 (1995); State v. Jones, 127 Idaho 478, 481, 903 P.2d 67, 70 (1995); State v. Gomez, 126 Idaho 83, 86, 878 P.2d 782, 785 (1994). Ineffective assistance of counsel is not among those grounds for a new trial delineated in that statute. Consequently, a motion for a new trial could not properly have been granted on that basis, and the trial court ought not have entertained that aspect of Milburn's motion for a new trial. Gomez, 126 Idaho at 86, 878 P.2d at 785. See also State v. Roberts, 129 Idaho 194, 197, 923 P.2d 439, 442 (1996); State v. Priest, 128 Idaho 6, 15, 909 P.2d 624, 633 (Ct.App.1995). The appropriate means to present an ineffective assistance claim is an application for post-conviction relief. Roberts, supra; Murray, 121 Idaho at 924-25, 828 P.2d at 1329-30. Because Milburn's motion for a new trial was not a correct vehicle to pursue his claim for ineffective assistance of counsel, the merits of his claim would not have been addressed by an appellate court even if Milburn had not abandoned his direct appeal. As in Roberts, the appellate court would have merely affirmed the denial of the motion on this procedural basis (and perhaps also would have suggested pursuit of the claim by an action for post-conviction relief as the Court did in Roberts ). Therefore, the State's argument that Milburn's claim of ineffective assistance of counsel could have been raised on direct appeal is erroneous.
brief. 1 We find no significance in this distinction, however, because the dismissal of the direct appeal, whether voluntary or not, forestalled consideration of the ineffective assistance of counsel claims by an appellate court
The right of a criminal defendant to counsel is guaranteed by the Sixth Amendment to the United States Constitution and Article I, § 13 of the Idaho Constitution. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Carter v. State, 108 Idaho 788, 794, 702 P.2d 826, 832 (1985)...
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