Munster v. State
| Decision Date | 19 July 1996 |
| Docket Number | No. 21671,21671 |
| Citation | 921 P.2d 765,129 Idaho 65 |
| Parties | Robert MUNSTER, Petitioner-Appellant, v. STATE of Idaho, Respondent. |
| Court | Idaho Court of Appeals |
Richard L. Harris, Caldwell, for appellant.
Hon. Alan G. Lance, Attorney General; Myrna A.I. Stahman, Deputy Attorney General (argued), Boise, for respondent.
This is an appeal from an order of the district court denying relief on Robert Munster's application for post-conviction relief. For the reasons stated herein, we affirm.
Munster's application for post-conviction relief stems from his conviction and imprisonment for lewd and lascivious conduct with a child under sixteen, I.C. § 18-1508. Munster appealed in that case, challenging the denial of his motion for reduction of his sentence. The underlying facts and procedural history of the criminal action are described in this Court's unpublished opinion in that appeal, State v. Munster (Ct.App. No. 21268, slip op. January 30, 1995):
Munster was indicted for three counts of lewd conduct with a child under sixteen years of age, I.C. § 18-1508. The charges stemmed from acts of genital to genital contact with a girl who was thirteen years of age at the time of the first charged act. Munster pleaded guilty to one count, and the remainder of the charges were dismissed. The district court sentenced Munster to a unified term of ten years with three years determinate. The court retained jurisdiction pursuant to I.C. § 19-2601, and thereafter suspended Munster's sentence and placed him on probation for a period of ten years.
Less than a year later, a report was filed charging that Munster had violated probation terms by having repeated unapproved contact with children, smoking marijuana, failing three disclosure polygraphs administered as part of his sexual abuse treatment program, and repeatedly violating rules of the electronic monitoring program by which electronic surveillance of Munster was conducted. Munster was found to have violated several of his probation conditions, but the district court reinstated probation on the same terms, with the addition of ninety days' jail time to be imposed at the discretion of Munster's probation officer.
Less than two months after reinstatement of his probation, Munster again violated probation conditions. The violation report alleged that Munster had missed four appointments for his sexual abuse treatment program and had made up for only one of the missed meetings, had been found intoxicated, had been driving without a driver's license, had been operating a vehicle with fictitious plates and without insurance, and had terminated his employment without his probation officer's advance approval. After Munster admitted to all of the alleged probation violations, the district court revoked probation and ordered the sentence executed.
Munster subsequently initiated this action for post-conviction relief seeking to have the probation revocation order set aside and his probation reinstated. In his application, Munster alleged that his probation officer had prohibited him from having contact with his wife, who was then seventeen years old, or his child, who was approximately one year old. Munster's application asserted that this condition of his probation violated his constitutional right to associate with his wife, 1 and that his trial counsel had been ineffective in failing to object to the probation term that forbade such contact. Munster further alleged that during the criminal case the court had denied his "fundamental right" to receive treatment from Dr. Jo Johnson, a clinical hypnotherapist, in addition to treatment that he was receiving through the SANE (Sexual Abuse Now Ended) program. The State filed an answer and an affidavit from Munster's former probation officer which stated that the probation officer had never prohibited Munster from consulting Dr. Johnson but had instead told Munster that such treatment would have to be in addition to his SANE treatment and at Munster's own expense.
The district court issued an "order conditionally dismissing UPCR petition," which was in the nature of a notice of intent to summarily dismiss the application pursuant to I.C. § 19-4906(b). In response, Munster filed no affidavits or other evidence supporting his application but requested a hearing. Following a hearing, the district court dismissed Munster's petition.
As a preliminary matter, we address the parties' dispute as to the standard of appellate review that applies in this case. The State contends that the hearing before the district court was an evidentiary hearing conducted pursuant to I.C. § 19-4907. If, as the State asserts, the district court denied Munster's petition for relief after conducting an evidentiary hearing, we must apply a deferential standard of review of the trial court's findings of fact, disturbing the findings only if they are unsupported by substantial evidence, while freely reviewing the trial court's conclusions of law. Reeves v. State, 105 Idaho 844, 845, 673 P.2d 444, 445 (Ct.App.1983). Munster, on the other hand, argues that it was not an evidentiary hearing and that the district court summarily dismissed his application, so that reversal is required if there exists any genuine issue of material fact which, if resolved in the applicant's favor, would entitle him to relief. See Stuart v. State, 118 Idaho 932, 801 P.2d 1283 (1990); Whitehawk v. State, 116 Idaho 831, 780 P.2d 153 (Ct.App.1989).
No transcript of the hearing in question has been provided on appeal. The only record before us is the court minutes which indicate that Munster placed in evidence three letters, 2 that counsel for both parties presented argument and that Munster addressed the court, apparently without being placed under oath. We cannot ascertain from this record whether this was an evidentiary hearing as envisioned by I.C. § 19-4907, at which Munster was permitted to submit any evidence he wished, or whether it was limited to a hearing on the court's notice of intent to conditionally dismiss the application. For purposes of this appeal, we will assume that it was not an evidentiary hearing and, as urged by Munster, we will apply the more stringent standard of review that is applicable to summary dismissals.
A post-conviction relief action is civil in nature. State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct.App.1992). Like plaintiffs in other civil actions, the applicant must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct.App.1990).
There are points of procedural difference, however, between post-conviction actions and other civil actions. An application for post-conviction relief must contain more than "a short and plain statement of the claim" that would suffice for a complaint under I.R.C.P. 8(a)(1); the post-conviction application must be verified with respect to facts within the personal knowledge of the applicant, and the applicant must either support the allegations by attachment of affidavits, records or other evidence or state in the application why such supporting evidence is not attached. I.C. § 19-4903. In other words, a post-conviction application is to be accompanied by evidence supporting the allegations upon which the claim for relief is based. An application may be summarily dismissed if the evidence raises no genuine issue of material fact which, if resolved in the applicant's favor, would entitle the applicant to the requested relief. Gonzales v. State, 120 Idaho 759, 763, 819 P.2d 1159, 1163 (Ct.App.1991); Hoover v. State, 114 Idaho 145, 146, 754 P.2d 458, 459 (Ct.App.1988); Ramirez v. State, 113 Idaho 87, 89, 741 P.2d 374, 376 (Ct.App.1987). To forestall summary dismissal, the applicant's factual showing must be based upon evidence that would be admissible at a hearing. Roman v. State, 125 Idaho 644, 647, 873 P.2d 898,...
To continue reading
Request your trial
-
LaBelle v. State
...such material in the record before this Court on appeal, and this Court will not go in search of it. See Munster v. State, 129 Idaho 65, 68, 921 P.2d 765, 768 (Ct.App.1996). LaBelle could have, but did not, move to augment the record in this case with the appellate record from his direct ap......
-
Warren v. State, Docket No. 33474 (Idaho App. 12/22/2008)
...conclusory allegations, unsupported by admissible evidence of specific facts, do not raise a genuine issue. Munster v. State, 129 Idaho 65, 67, 921 P.2d 765, 767 (Ct. App. 1996); Roman, 125 Idaho at 647, 873 P.2d at To prevail on an ineffective assistance of counsel claim, the defendant mus......