Oliver v. State
| Decision Date | 09 November 2011 |
| Docket Number | Docket No. 38115 |
| Parties | RICKIE D. OLIVER, Petitioner-Appellant, v. STATE OF IDAHO, Respondent. |
| Court | Idaho Court of Appeals |
2011 Unpublished Opinion No. 689
Stephen W. Kenyon, Clerk
Rickie D. Oliver appeals from the summary dismissal of his petition for post-conviction relief. He asserts that he demonstrated a viable claim of ineffective assistance of counsel based on his attorney's failure to raise a sentencing entrapment defense and that the district court erred both by denying his request for counsel and by summarily dismissing his petition.
Oliver was charged with three counts of trafficking in a controlled substance under Idaho Code § 37-2732B(a)(2) after selling cocaine to an undercover police officer. At trial, Oliver presented an entrapment defense. He testified that he had "[n]ever done anything like that before," and that he only sold the cocaine after he was pressured into the deals by a friend, who turned out to be a confidential informant for the police. A jury found him guilty on all counts, rejecting his entrapment defense. The district court imposed concurrent sentences of fifteenyears with five years determinate on the first count, seventeen years with five years determinate on the second count, and twenty-five years with twelve years determinate on the third count.
Oliver thereafter filed a petition for post-conviction relief and a motion for appointment of counsel. In his petition, Oliver asserted ineffective assistance of counsel based on, among other things, his defense attorney's failure to present a sentencing entrapment defense during trial and sentencing. The district court declined to appoint counsel and, two months later, granted the State's motion for summary dismissal. Oliver appeals, challenging both the denial of counsel and the summary dismissal.
A. Summary Dismissal
An application for post-conviction relief is civil in nature. Charboneau v. State, 144 Idaho 900, 903, 174 P.3d 870, 873 (2007). Idaho Code § 19-4906 authorizes summary dismissal of an application for post-conviction relief, either pursuant to the motion of a party or upon the court's own initiative. Summary dismissal of a post-conviction action is the procedural equivalent of summary judgment under I.R.C.P. 56. "A claim for post-conviction relief will be subject to summary dismissal . . . if the applicant has not presented evidence making a prima facie case as to each essential element of the claims upon which the applicant bears the burden of proof." DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009) (quoting Berg v. State, 131 Idaho 517, 518, 960 P.2d 738, 739 (1998)). Thus, summary dismissal is permissible when the applicant's evidence has raised no genuine issue of material fact that, if resolved in the applicant's favor, would entitle the applicant to the requested relief. If such a factual issue is presented, an evidentiary hearing must be conducted. State v. Payne, 146 Idaho 548, 561, 199 P.3d 123, 136 (2008); Goodwin v. State, 138 Idaho 269, 272, 61 P.3d 626, 629 (Ct. App. 2002). Summary dismissal of an application for post-conviction relief may be appropriate, however, even where the State does not controvert the applicant's evidence because the court is not required to accept either the applicant's mere conclusory allegations, unsupported by admissible evidence, or the applicant's conclusions of law. Payne, 146 Idaho at 561, 199 P.3d at 136; Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994). "When reviewing a district court's order of summary dismissal in a post-conviction relief proceeding, we apply the same standard as that applied by the district court." Ridgley v. State, 148 Idaho 671, 675, 227P.3d 925, 929 (2010). On review of dismissal of a post-conviction relief application without an evidentiary hearing, we determine whether a genuine issue of material fact exists based on the pleadings, depositions, and admissions together with any affidavits on file. Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069 (2009); Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct. App. 1993). However, "while the underlying facts must be regarded as true, the petitioner's conclusions need not be so accepted." Rhoades, 148 Idaho at 250, 220 P.3d at 1069 (quoting Phillips v. State, 108 Idaho 405, 407, 700 P.2d 27, 29 (1985)). See also Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008).
Oliver asserts that his trial counsel was ineffective because he presented a traditional entrapment defense at trial instead of raising a defense of sentencing entrapment or sentencing manipulation. A claim of ineffective assistance of counsel may properly be brought under the Uniform Post-Conviction Procedure Act. Murray v. State, 121 Idaho 918, 924-25, 828 P.2d 1323, 1329-30 (Ct. App. 1992). To prevail on an ineffective assistance of counsel claim, the defendant must show that the attorney's performance was deficient and that the defendant was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct. App. 1995). To establish a deficiency, the applicant has the burden of showing that the attorney's representation fell below an objective standard of reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988); Gonzales v. State, 151 Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011).
It is unclear whether Oliver asserts on appeal that his counsel should have presented sentencing entrapment as an affirmative defense to be raised at trial or as a mitigating factor to be raised at sentencing. Regardless of which argument Oliver intended, he did not demonstrate that he could be entitled to relief, because he has not shown that his counsel was deficient for failing to raise sentencing entrapment even if all the facts that Oliver alleges are true.
Under the traditional entrapment doctrine, which was employed at Oliver's trial, "entrapment occurs when an otherwise innocent person, not inclined to commit a criminal offense, is induced to do so by a state agent who, desiring grounds for prosecution, originates the criminal design and implants in the mind of the innocent person the disposition to commit the alleged offense." Suits v. State, 143 Idaho 160, 162, 139 P.3d 762, 764 (Ct. App. 2006). See also State v. Canelo, 129 Idaho 386, 391, 924 P.2d 1230, 1235 (Ct. App. 1996); State v. Kopsa, 126 Idaho 512, 519, 887 P.2d 57, 64 (Ct. App. 1994). Sentencing entrapment occurs when "adefendant, although predisposed to commit a minor or lesser offense, is entrapped in committing a greater offense subject to greater punishment."1 United States v. Staufer, 38 F.3d 1103, 1106 (9th Cir. 1994). The sentencing entrapment theory was originally recognized as a remedy for the potentially harsh results of the federal sentencing guidelines, allowing courts to depart from the guidelines in order to sentence defendants on the "basis of the extent of their culpability." Id. at 1107. Thus, federal courts could grant a downward departure when necessary to prevent abusive practices such as manipulation of the price and quantity of drugs involved in a government controlled drug transaction, whereby the police could induce participation by setting an artificially low or high price and ultimately determine the sentence by adjusting the quantity involved to accord with the desired sentence under the federal sentencing guidelines. Id. at 1106-08. See also U.S. Sentencing Guidelines Manual § 2D1.1 cmt. 12, 14 (1993). The Ninth Circuit Court of Appeals expressed willingness to "decline to apply the statutory penalty provision for the greater offense that the defendant was induced to commit, and instead apply the penalty provision for the lesser offense that the defendant was predisposed to commit." United States v. Parrilla, 114 F.3d 124, 127 (9th Cir. 1997). See also United States v. Ramirez-Rangel, 103 F.3d 1501, 1507-08 (9th Cir. 1997), abrogated on other grounds by Watson v. United States, 552 U.S. 74 (2007).
Oliver is incorrect in his contention that sentencing entrapment "is relatively well known and exists in our own and other Circuits throughout the United States as a legitimate albeit affirmative defense." Although the doctrines of sentencing entrapment and sentence factor manipulation are suggested by the comments 12 and 14 to the U.S. Sentencing Guidelines Manual § 2D1.1, our research indicates that these doctrines have been adopted by only a minority of federal jurisdictions2 and by appellate courts of only three states.3 Courts of at leastfifteen other states that have addressed the issue in appellate decisions have determined that sentencing entrapment is not a recognized defense.4 Most importantly, neither sentencingentrapment nor sentence factor manipulation has ever been recognized in Idaho.5 It is generally not deficient performance for an attorney to fail to argue a novel theory in an undeveloped area of the law. Schoger v. State, 148 Idaho 622, 630, 226 P.3d 1269, 1277 (2010); Piro v. State, 146 Idaho 86, 91-92, 190 P.3d 905, 910-11 (Ct. App. 2008). Thus, Oliver has failed to demonstrate that his counsel's conduct fell below an objective standard of reasonableness when counsel did not raise a sentencing entrapment or sentencing manipulation defense because Idaho law does not recognize either. The district court correctly concluded that even if all the facts alleged by Oliver are true, he is not entitled to...
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