Nevarez v. State

• Decision Date: 30 April 2008
• Docket Number: No. 33509.,33509.
• Citation: 187 P.3d 1253,145 Idaho 878
• Parties: Eusebio NEVAREZ, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

187 P.3d 1253

145 Idaho 878

Eusebio NEVAREZ, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 33509.

Court of Appeals of Idaho.

April 30, 2008.

Review Denied July 8, 2008.

Appeal from the District Court of the Seventh Judicial District, State of Idaho, Fremont County. Hon. Brent J. Moss, District Judge.

Order summarily dismissing petition for post-conviction relief, affirmed.

Eusebio Nevarez, Littlefield, Texas, pro se appellant.

Hon. Lawrence G. Wasden, Attorney General; Ralph R. Blount, Deputy Attorney General, Boise, for respondent.

LANSING, Judge.

Eusebio Nevarez appeals from the order of the district court summarily dismissing his petition for post-conviction relief.

I. FACTUAL & PROCEDURAL BACKGROUND

In the underlying criminal case, Nevarez pleaded guilty to two counts of conspiracy to traffic in methamphetamine, Idaho Code § 37-2732B(a)(4)(C) and (b). Prior to sentencing, he moved to withdraw his guilty plea. The district court denied the motion, a decision we affirmed in State v. Nevarez, Docket No. 29961, 142 Idaho 96, 123 P.3d 729 (Ct.App.2004) (unpublished).

Nevarez then filed a petition for post-conviction relief. In that petition, he raised three claims of ineffective assistance of counsel, arguing that counsel misrepresented the terms of the plea agreement, had a conflict of interest, and failed to preserve for appeal an alleged problem with the court interpreter. He also argued that his plea was not knowing, voluntary, or intelligent because of problems with the interpreter, and that the State breached the plea agreement. Counsel was appointed to represent Nevarez on these claims. The State filed a motion for summary dismissal and, after a hearing,¹ the district court summarily dismissed Nevarez's petition for post-conviction relief. Nevarez appeals.

II. ANALYSIS

A. Standard of Review

A post-conviction relief action is a civil proceeding in which the applicant bears the burden to prove the allegations upon which the request for relief is based. Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct.App.1990); Pierce v. State, 109 Idaho 1018, 1019, 712 P.2d 719, 720 (Ct.App.1985). An order for summary disposition of a post-conviction relief application under I.C. § 19-4906(c) is the procedural equivalent of summary judgment under Idaho Rule of Civil Procedure 56. Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct.App.1994). Therefore, summary dismissal of a post-conviction application is appropriate only if there exists no genuine issue of material fact which, if resolved in the applicant's favor, would entitle him to the requested relief. Fairchild v. State, 128 Idaho 311, 315, 912 P.2d 679, 683 (Ct.App.1996). If a genuine factual issue is presented, an evidentiary hearing must be conducted. 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). On review of a summary dismissal, we must examine the record to determine whether the trial court correctly found that there existed no genuine issue of material fact and that the State was entitled to judgment as a matter of law. Id. We liberally construe the facts and reasonable inferences in favor of the non-moving party. Cowger v. State, 132 Idaho 681, 684-85, 978 P.2d 241, 244-45 (Ct.App. 1999); Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct.App.1993). However, we do not give evidentiary value to mere conclusory allegations that are unsupported by admissible evidence. Phillips v. State, 108 Idaho 405, 407, 700 P.2d 27, 29 (1985); State v. Ayala, 129 Idaho 911, 915, 935 P.2d 174, 178 (Ct.App.1996); Roman, 125 Idaho at 647, 873 P.2d at 901.

B. Claim of Inadequate Interpretation

Two of Nevarez's claims hinge on his assertion that the court interpreter inadequately interpreted the proceedings. One is his claim that trial counsel deficiently performed because he failed to preserve the issue of this alleged inadequacy for appeal; the other is his assertion that his plea was not knowing, voluntary, or intelligent because of problems with the interpreter.² Nevarez was provided an interpreter to translate the proceedings into Spanish. In his affidavit in support of his petition, Nevarez stated that he has lived in the United States since 1970 and understands English in ordinary conversation, but that during the criminal proceedings the things that the judge and attorneys said did not make sense. He said that the interpreter only made it worse, and that the interpreter seemed confused. As evidence of the interpreter's difficulties, he pointed to the transcript of a hearing that occurred on July 29, 2003, in which Nevarez attempted to withdraw his plea. Nevarez's usual court-sworn interpreter, Mary Moberly, was at that hearing. Also at that hearing was an individual named Gina Vellasetin, who, according to Nevarez's petition for post-conviction relief, was an interpreter provided by the Mexican Consulate. Nevarez had just explained to the district court that he had not understood what his attorneys meant when they said that he had "made a confession." The interpreter, presumably Moberly, then interrupted, apparently referring to Vellasetin:

The Interpreter: May this Interpreter please take over?

The Court: No, I can't have her do that. I'd like to, but I have to go with a Court sworn Interpreter. He can assist you with questions if you want.

The Interpreter: I'm asking what confession he's talking about.

The Court: Okay. And if he wants to clarify that with the two of them, that's fine. Just a minute. Only one at a time.

Nevarez speculates that Moberly's request that Vellasetin take over suggests that she was having some sort of difficulty in the interpretation.

To withstand a motion for summary dismissal, an applicant for post-conviction relief must present his supporting facts in the form of competent evidence that would be admissible at an evidentiary hearing. Paradis v. State, 110 Idaho 534, 536, 716 P.2d 1306, 1308 (1986); Roman, 125 Idaho at 647, 873 P.2d at 901. That is, an application "must be supported by written statements from witnesses who are able to give testimony themselves as to facts within their knowledge, or must be based upon otherwise verifiable information." Drapeau v. State, 103 Idaho 612, 617, 651 P.2d 546, 551 (Ct.App. 1982). A mere scintilla of evidence or only slight doubt is not sufficient to create a genuine issue of material fact. Blickenstaff v. Clegg, 140 Idaho 572, 577, 97 P.3d 439, 444 (2004).

Nevarez has not produced any evidence that Moberly's interpretation was actually defective. His assertion that Moberly asked if Vellasetin could take over because Moberly was unable to interpret the proceedings properly is entirely speculative. Nevarez argues on appeal that the testimony of the interpreters could not be obtained without a subpoena and that he expressed to the district court a desire to subpoena them. It is true that Nevarez's petition for post-conviction relief asserted that subpoenas would be necessary to obtain the testimony of Moberly and/or Vellasetin. At the time of proceedings on the State's motion for summary dismissal, however, Nevarez was represented by counsel, and counsel did not seek to subpoena either of these witnesses. Nor did Nevarez present an affidavit from his defense attorney indicating that defense counsel detected any difficulty with the interpretation service or with Nevarez's ability to understand.³

Nevarez also argues that he raised a genuine issue of material fact in the same manner as the petitioner in Gonzales, 120 Idaho 759, 819 P.2d 1159. In that case, the defendant spoke Spanish but understood some English. Although an interpreter was present, the interpreter did not translate the entire proceedings. Instead, the judge instructed the defendant to inform the court if he did not understand something that was said, and the interpreter would then translate whatever had confused him. The defendant brought a post-conviction action, arguing that because an interpreter did not interpret all of the proceedings, he did not understand the nature of the proceedings or the consequences of his guilty plea. We agreed that the defendant had raised a genuine issue of material fact, saying that requiring the defendant to interrupt was an unfair burden because he may have thought that he understood the proceedings when in fact he did not.

In the present case, as in Gonzales, at the change of plea hearing, the district court said "Mr. Nevarez, if at any time you do not understand what the Court says, will you please advise me so that we can have the interpreter assist you?" Nevarez's situation is distinguishable from that in Gonzales, however, where the transcript suggested that the defendant understood some statements made by the judge, but misunderstood others. There is no such indication in this case. In his own affidavit, Nevarez asserted that he has been in the United States for more than thirty years and understands English in normal conversation. And unlike the situation in Gonzales, an interpreter translated for Nevarez throughout the hearing. The district court's questions to Nevarez at the change of plea hearing did not contain complex legal jargon, and Nevarez responded appropriately to the district court's inquiries, including questions requiring an explanation beyond merely "yes" or "no" answers. Under these circumstances, we cannot say that Nevarez has raised a genuine issue of material fact as to whether he understood the proceedings.

Because Nevarez has not provided more than a scintilla of evidence that Moberly inadequately interpreted the proceedings or that he did not understand them, we affirm the dismissal of his claim that counsel unreasonably failed to preserve the issue for appeal and his assertion that poor interpretation rendered his plea unknowing, involuntary, and unintelligent.

C. Breach of the Plea Agreement

Nevarez's petition for...