Nellsch v. State
| Decision Date | 09 July 1992 |
| Docket Number | No. 18660,18660 |
| Citation | 122 Idaho 426,835 P.2d 661 |
| Parties | Lawrence L. NELLSCH, Petitioner-Appellant, v. STATE of Idaho, Respondent. |
| Court | Idaho Court of Appeals |
E. Maureen Laflin, Supervising Atty., Sanda Meeker, Legal intern, Legal Aid Clinic, argued, Moscow, for petitioner-appellant.
Larry J. EchoHawk, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., argued, Boise, for respondent.
In a petition for post-conviction relief, Lawrence Nellsch sought to withdraw his plea of guilty to the charge of first degree kidnapping alleging he was not aware at the time he entered the plea that the only penalties which could be imposed for the crime were life imprisonment or death. He also claimed that he was denied the effective assistance of counsel because his attorney failed to advise him of the mandatory minimum penalty for first degree kidnapping. The district court summarily dismissed the petition. For the reasons stated below, we affirm the summary judgment of the district court.
The underlying procedural facts are relevant in this case. On November 16, 1984, Nellsch was charged by information with one count of first degree kidnapping, I.C. § 18-4501, two counts of robbery, I.C. § 18-6501, one count of possession of a controlled substance, I.C. § 37-2732, and one count of the infamous crime against nature, I.C. § 18-6605. At an arraignment hearing on December 13, 1984, Nellsch entered a plea of not guilty to all counts. The court informed Nellsch that the maximum penalty for first degree kidnapping was death. Later in the hearing, the court informed Nellsch that the penalty for kidnapping could be life imprisonment or death, but did not use the word "minimum" in stating to Nellsch:
What the kidnapping statute says is that the penalty can be life imprisonment or death. In the event it was a life imprisonment, and conviction on all of them, those could be run in a consecutive fashion, in other words, the sentences could be stacked one on top of the other. You could be facing three consecutive life sentences, plus consecutive three years and five years in the other two cases, for a total of three life sentences plus eight more years, and a possible $5,000 fine. Do you understand the maximum penalty that can be imposed? (Emphasis added.)
On February 15, 1985, Nellsch withdrew his plea of not guilty and entered guilty pleas on all charges. Prior to accepting Nellsch's guilty pleas, the court discussed the charges against him as well as the element of criminal intent and explained to him the rights which he was waiving by changing his pleas. The court then discussed the maximum penalties that could be imposed for each of the crimes Nellsch committed. The court did not discuss the minimum sentences for any of the crimes.
On April 22, 1985, the district court imposed an indeterminate, twenty-five year sentence for kidnapping. The court imposed lesser sentences for the other crimes: two concurrent fifteen-year terms for the robberies, to be served consecutive to the kidnapping sentence; a five-year term for the infamous crime against nature, to be served concurrent with the robbery sentences; and a three-year term for possession of cocaine, to be served consecutive to the robbery sentences. Nellsch appealed arguing that the sentences were excessive and amounted to abuse of discretion by the district court.
On appeal, this Court held that Nellsch received an illegal sentence on the kidnapping conviction. State v. Nellsch, 110 Idaho 594, 716 P.2d 1366 (Ct.App.1986). The statute which prescribes the penalty for kidnapping, I.C. § 18-4504, requires that a person guilty of first degree kidnapping be sentenced either to death or to life imprisonment; the statute does not permit a term of years for first degree kidnapping. 1 Thus, Nellsch's sentence of twenty-five years did not meet the mandatory minimum life imprisonment penalty prescribed by statute. The case was remanded for resentencing.
On July 2, 1986, Nellsch appeared before the district court for resentencing. At that time, the court advised Nellsch that the only sentencing alternatives for first degree kidnapping were the death penalty or life imprisonment. The district court also advised Nellsch that a sentence of life imprisonment could be either fixed or indeterminate. The court then imposed the following sentences: a fixed three-year term for possession of cocaine; an indeterminate three-year term for the infamous crime against nature, to be served concurrently with the sentence for possession of cocaine; an indeterminate life sentence for the crime of first degree kidnapping, to be served consecutively to the sentences for possession of cocaine and the infamous crime against nature; and two indeterminate fifteen-year sentences for each of the two counts of robbery, to be served concurrently with the sentence for kidnapping. Nellsch took no appeal from this judgment and these sentences.
On October 13, 1989, Nellsch filed a petition for post-conviction relief seeking to withdraw his guilty plea to the kidnapping charge, and moved for summary disposition. The state moved to dismiss the petition pursuant to I.C. § 19-4906(b), arguing that Nellsch had not met the burden of proving that a manifest injustice had occurred, that Nellsch had waived his claim by failing to withdraw his plea prior to resentencing, and that withdrawal of the plea at this late date would unfairly prejudice the state if it had to present its case against Nellsch at trial.
After hearing argument on the motions, the district court entered judgment in favor of the state and dismissed Nellsch's petition without an evidentiary hearing. The court found that Nellsch had been informed at resentencing of the holding of this Court, that the only possible sentencing alternatives were life (fixed or indeterminate) or a death sentence. The court also found that Nellsch had failed to justify the withdrawal of his plea by establishing the existence of a manifest injustice. Moreover, the court found that the state would be unfairly prejudiced by allowing the withdrawal of the plea, considering the amount of time that had passed since the plea was entered. Nellsch has appealed from this judgment.
Nellsch's petition claimed two grounds for relief: first, that he did not know the mandatory minimum sentence for first degree kidnapping when he entered his plea of guilty, and second, that he had received ineffective assistance of counsel at the time he entered his guilty plea. The Uniform Post-Conviction Procedure Act, I.C. §§ 19-4901-19-4911, provides a mechanism by which a person convicted of a crime may show that his conviction was in violation of the Constitution, that the conviction should be vacated in the interest of justice, or that the conviction is otherwise subject to collateral attack. I.C. § 19-4901(a); see also Parrott v. State, 117 Idaho 272, 274, 787 P.2d 258, 260 (1990). As such, the Act provides an appropriate mechanism for considering claims of ineffective assistance of counsel and claims that a plea of guilty was accepted in violation of the requirements set forth in I.C.R. 11.
A petition for post-conviction relief is a special proceeding that is civil in nature; it is a proceeding entirely new and independent from the criminal action which led to conviction. Paradis v. State, 110 Idaho 534, 536, 716 P.2d 1306, 1308 (1986) (citing State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983)). Post-conviction relief proceedings are not a substitute for proceedings in the trial court, or for an appeal from the sentence or conviction. I.C. § 19-4901(b). A criminal defendant may raise a claim of ineffective assistance of counsel either on direct appeal or reserve the issue for post-conviction proceedings. Parrott, 117 Idaho at 274, 787 P.2d at 260. Because Nellsch did not appeal from his resentencing, he may raise the issue of ineffective assistance of counsel in his petition for post-conviction relief. The same holds true for his request to withdraw his plea of guilty, which is, in turn, based on a claim that the plea was accepted in violation of the requirements of I.C.R. 11. Nellsch's failure to appeal from his resentencing does not bar these claims from being heard on a petition for post-conviction relief.
We first note our standard of review on the dismissal of the petition for post-conviction relief. A trial court may grant a motion by either party for summary disposition of an application for post-conviction relief where it appears from the pleadings that no genuine issue of fact exists. I.C. § 19-4906(c); Parrott, 117 Idaho at 274, 787 P.2d at 260. However, where issues of material fact exist, an evidentiary hearing must be held. I.C. § 19-4907; Parrott, 117 Idaho at 274, 787 P.2d at 260.
Summary disposition under I.C. § 19-4906(b) is the procedural equivalent of summary judgment under I.R.C.P. 56. Ramirez v. State, 113 Idaho 87, 89, 741 P.2d 374, 376 (Ct.App.1987). Thus, we exercise free review on appeal in determining whether a genuine issue of material fact exists. See Edwards v. Conchemco, Inc., 111 Idaho 851, 852, 727 P.2d 1279, 1280 (Ct.App.1986). Furthermore, in ruling on an appeal from a summary disposition of a petition for post-conviction relief, we will determine whether a genuine issue of fact exists based on the pleadings, depositions, and admissions on file, together with any affidavits on file; moreover, the court will liberally construe the facts in favor of the moving party, together with all reasonable inferences to be drawn from the evidence. Mitchell v. Siqueiros, 99 Idaho 396, 398, 582 P.2d 1074, 1076 (1978).
The relief sought by Nellsch in his petition for post-conviction relief was the withdrawal of his plea of guilty. Such a motion is addressed to the sound...
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