Moen v. State
| Decision Date | 15 October 2014 |
| Docket Number | 2014 Unpublished Opinion No. 768,Docket No. 40600 |
| Court | Idaho Court of Appeals |
| Parties | JAMES NEIL MOEN, Petitioner-Appellant, v. STATE OF IDAHO, Respondent. |
Stephen W. Kenyon, Clerk
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Michael J. Griffin, District Judge.
Judgment of the district court summarily dismissing amended petition for postconviction relief, affirmed in part, reversed in part, and case remanded.
Nevin, Benjamin, McKay & Bartlett, LLP; Robyn A. Fyffe, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.
James Neil Moen appeals from the judgment of the district court summarily dismissing his amended petition for post-conviction relief. For the reasons that follow, we affirm in part, reverse in part, and remand.
This post-conviction action arises out of Moen's conviction for felony driving under the influence. As part of a plea agreement, Moen pled guilty to felony driving under the influence and was sentenced to a unified term of eight years, with three years determinate.1 The trial courtretained jurisdiction for 180 days and stated in its judgment of conviction that it strongly recommended Moen participate in "A New Directions" program and that "Level A" be used.2 The judgment of conviction further stated that "attention should be paid by the Department of Correction to the applicable mental health condition ___," and the judge wrote, "Please provide a mental health evaluation." After several continuances, the court conducted a jurisdictional review hearing. The court relinquished jurisdiction and modified Moen's sentence to a unified term of eight years, with one-and-a-half years determinate.
Moen then filed a pro se Rule 35 motion for reduction of his sentence. Among other things, Moen alleged that his mental health issues were not addressed or taken into consideration during sentencing. Moen also filed a request for appointment of counsel. The trial court denied Moen's motion for reduction of sentence after determining that it was meritless, and therefore found that the appointment of counsel was unnecessary. Moen appealed that decision, and we affirmed in State v. Moen, Docket No. 35907 (Ct. App. Oct. 15, 2010) (unpublished). In part, we discussed Moen's claim that his mental health issues were not addressed or taken into consideration:
At the sentencing hearing, Moen submitted a competency evaluation and a substance abuse assessment for the district court's consideration. The competency evaluation provided diagnoses of adjustment disorder with anxiety and personality disorder with antisocial and narcissistic features, and the assessment provided that Moen had indications of mental health problems. The competency evaluation also explained that Moen acts out antisocially and has difficulty coping with the legal system when he does not get his way. At the jurisdictional review hearing, the district court inquired whether Moen had the resources to obtain a psychological evaluation. After Moen's counsel stated that it was likely that an evaluation could be accomplished, the district court continued the hearing. At the continued hearing, Moen requested another continuance so that he could complete a psychological evaluation, which the district court granted. However, when the hearing was finally held, Moen proceeded despite the fact that no evaluation had been accomplished. Moen has failed to show that the district court did not take into consideration his mental issues.
Moen, Docket No. 35907 (footnote omitted).
After we affirmed the denial of his Rule 35 motion, Moen filed a pro se petition for post-conviction relief, alleging judicial misconduct and ineffective assistance of defense counsel and appellate counsel. Moen also moved the court to appoint counsel, and the district court subsequently appointed the public defender to represent Moen. Although Moen was represented, he attempted to file numerous documents, motions, and letters with the court. Subsequently, counsel filed an amended petition3 on Moen's behalf. The amended petition alleged ineffective assistance of defense counsel, alleged that Moen was denied procedural due process by the court refusing to obtain a psychological evaluation prior to sentencing and prior to the jurisdictional review hearing, and alleged that Moen was denied procedural due process when the court permitted the State to prosecute Moen upon an information, rather than an indictment. Even after the amended petition was filed and although he was represented by the public defender's office, Moen continued to send documents to the district court.
In the course of proceedings below, three public defenders represented Moen. The last public defender moved to withdraw and, following a hearing, the court announced that it would grant the third attorney's motion to withdraw, but the judge stated that he wanted to take a fresh look at Moen's post-conviction petition.
Two weeks after the hearing, the district court filed a notice of intent to dismiss4 that generally determined that the amended petition contained unsubstantiated, conclusory allegations and did not contain evidence sufficient to support any ground for relief.5 On the same day, thedistrict court also filed an order allowing the third attorney to withdraw. Coincidentally, a "Motion for Rehearing on Summary Disposition to Preserve Thirty Constitutional Violations in P.C.R. that Attorney Failed to do" was file stamped on the same day, although it had been signed by Moen and presumably sent while Moen was still represented. The district court entered an order, also on the same day, denying that motion. In the order the court noted, "There has been no hearing on the State's motion for summary disposition," and further stated, "The only matter pending before the court is the Notice of Intent to Dismiss which the petitioner has not yet replied to."
Moen moved for re-appointment of counsel and filed a "Motion to Dismiss Prosecutions 'Notice of Intent to Dismiss' and Moves for Evidentiary Hearing." Additionally, Moen filed an affidavit that set forth various accusations and listed issues, exhibits, and citations to various legal sources.6 The district court then denied Moen's motion for appointment of counsel, finding that an attorney would not assist Moen in presenting a valid claim. Subsequently, the court ordered Moen's amended petition for post-conviction relief be summarily dismissed because Moen failed to state grounds upon which relief could be granted. The court noted that Moen filed additional documents, but it determined that Moen did not produce admissible evidence to support his claims for post-conviction relief. Moen appeals.
A petition for post-conviction relief initiates a civil, rather than criminal, proceeding, governed by the Idaho Rules of Civil Procedure. I.C. § 19-4907; State v. Yakovac, 145 Idaho 437, 443, 180 P.3d 476, 482 (2008). See also Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642, 646 (2008). Like plaintiffs in other civil actions, the petitioner must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002). A petition for post-conviction relief differs from a complaint in an ordinary civil action, however, in that it must contain more than "a short and plain statement of the claim" that would suffice for a complaint under Idaho Rule of CivilProcedure 8(a)(1). State v. Payne, 146 Idaho 548, 560, 199 P.3d 123, 135 (2008); Goodwin, 138 Idaho at 271, 61 P.3d at 628. The petition must be verified with respect to facts within the personal knowledge of the petitioner, and affidavits, records or other evidence supporting its allegations must be attached, or the petition must state why such supporting evidence is not included. I.C. § 19-4903. In other words, the petition must present or be accompanied by admissible evidence supporting its allegations or it will be subject to dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011); Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994).
Idaho Code § 19-4906 authorizes summary dismissal of a petition for post-conviction relief, either pursuant to a motion by a party or upon the court's own initiative, if "it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of facts, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." I.C. § 19-4906(c). When considering summary dismissal, the district court must construe disputed facts in the petitioner's favor, but the court is not required to accept either the petitioner's mere conclusory allegations, unsupported by admissible evidence, or the petitioner's conclusions of law. Payne, 146 Idaho at 561, 199 P.3d at 136; Roman, 125 Idaho at 647, 873 P.2d at 901. Moreover, because the district court rather than a jury will be the trier of fact in the event of an evidentiary hearing, the district court is not constrained to draw inferences in the petitioner's favor, but is free to arrive at the most probable inferences to be drawn from the evidence. Yakovac, 145 Idaho at 444, 180 P.3d at 483; Wolf, 152 Idaho at 67, 266 P.3d at 1172; Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). Such inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify them. Chavez v. Barrus, 146 Idaho 212, 218, 192 P.3d 1036, 1042 (2008); Hayes, 146 Idaho at 355, 195 P.2d at 714; Farnsworth v. Dairymen's Creamery Ass'n, 125 Idaho...
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