Parrott v. State

• Decision Date: 14 February 1990
• Docket Number: No. 17294,17294
• Citation: 787 P.2d 258,117 Idaho 272
• Parties: Larry Peter PARROTT, Petitioner-appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Supreme Court

Page 258

787 P.2d 258

117 Idaho 272

Larry Peter PARROTT, Petitioner-appellant, v. STATE of Idaho, Respondent.

No. 17294.

Supreme Court of Idaho.

Feb. 14, 1990.

Lisa A. Barini-Garcia, Twin Falls, Idaho, for appellant.

Jim Jones, Atty. Gen., Lawrence G. Wasden, Deputy Atty. Gen., argued, Boise, Idaho, for respondent.

WINMILL, Justice Pro Tem.

On March 1, 1985, Larry Peter Parrott was charged with having committed an infamous crime against nature. ¹ The court appointed the Twin Falls County Public Defender as Parrott's counsel. Following entry of a not guilty plea at arraignment, Parrott's case was set for trial on June 11, 1985. After two continuances, the case proceeded to trial on August 13, 1985. Prior to trial, Parrott's original counsel resigned as public defender, and Timothy Wilson assumed the position of acting public defender.

On the day before trial Mr. Wilson requested a continuance based on his inability to contact witnesses and his lack of preparation. The motion was denied. The case was tried and the defendant convicted.

Following conviction, a motion for new trial was filed. Upon Parrott's motion, the court discharged his public defender and allowed Parrott to proceed pro se. His motion for a new trial was denied, and Parrott was sentenced to an indeterminate life sentence.

Parrott filed a notice of appeal, but later moved to withdraw the appeal. This Court granted his motion. Proceeding pro se, Parrott then petitioned the district court for post conviction relief based primarily upon an allegation of ineffective assistance of counsel. He then retained counsel who represented him in opposition to the State's motion for summary denial of his petition for post conviction relief.

On October 13, 1987, the State's motion for summary disposition was heard. Parrott's counsel filed the deposition of trial counsel Timothy Wilson and four affidavits. The court granted the State's motion for summary disposition and dismissed Parrott's petition without an evidentiary hearing. Parrott now appeals the order granting summary disposition and asks for a remand for an evidentiary hearing.

This appeal raises two issues. First, whether a defendant may raise an issue of ineffective assistance of counsel in a petition for post conviction relief where that issue was raised in an earlier appeal, but the appeal was voluntarily withdrawn by the defendant prior to decision; second, whether the trial court erred in dismissing the post conviction petition without an evidentiary hearing. We will address each of these issues in turn.

The Uniform Post Conviction Procedure Act provides a mechanism whereby a person convicted of a crime may present evidence, not presented or heard at trial, which requires vacation of the conviction in the interest of justice. I.C. § 19-4901(a). As such, the Act provides an appropriate mechanism for considering claims of ineffective assistance of counsel.

However, post conviction relief proceedings are not a substitute for proceedings in the trial court, or of an appeal from the sentence or conviction. I.C. § 19-4901(b). Although a defendant alleging ineffective assistance of counsel at trial may raise the issue on direct appeal or reserve it for post conviction proceedings, he may not do both. If the issue is raised and considered on appeal, it becomes res judicata. Kraft v. State, 100 Idaho 671, 674, 603 P.2d 1005, 1008 (1979). Accord Paradis v. State, 110 Idaho 534, 716 P.2d 1306 (1986); Gibson v. State, 110 Idaho 631, 718 P.2d 283 (1986).

Since Parrott's first appeal was withdrawn before briefing or oral argument, the issue of ineffective assistance of counsel has not been considered by this Court. Accordingly, the earlier appellate proceeding has no res judicata effect on Parrott's post conviction relief proceedings. We may therefore consider the merits of Parrott's petition.

Turning to Parrott's argument that the district court erred in dismissing his petition without an evidentiary hearing, we first note the standard of review. 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 there is no genuine issue of material fact. I.C. § 19-4906(c). However, where issues of material fact exist, an evidentiary hearing must be held. I.C. § 19-4907; Stone v. State, 108 Idaho 822, 824, 702 P.2d 860, 862 (Ct.App.1985); Drapeau v. State, 103 Idaho 612, 651 P.2d 546 (Ct.App.1982).

On appeal, this Court must decide whether the State's summary disposition motion was properly granted. This requires that we view the facts in a light most favorable to the petitioner, and determine whether they would entitle him to relief if accepted as true. Williams v. State, 113 Idaho 685, 747 P.2d 94 (Ct.App.1987); Wolfe v. State, 114 Idaho 659, 759 P.2d 950 (Ct.App.1988) (petition for review denied, December 8, 1988). While this requires that the petitioner's unrebutted allegations be accepted as true, we are not required to accept the petitioner's conclusions. Kraft v. State, 100 Idaho 671, 603 P.2d 1005 (1979).

This standard of review must be considered in the context of the defendant's claim that he was denied effective assistance of counsel at trial. To establish that his constitutional right to effective assistance of counsel has been violated, a defendant in criminal proceedings must demonstrate not only that his counsel's performance was deficient, but that the deficient performance so prejudiced his defense as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Storm v. State, 112 Idaho 718, 735 P.2d 1029 (1987); Estes v. State, 111 Idaho 430, 725 P.2d 135 (1986). To establish deficient performance, a defendant must show that "counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. at 668, 104 S.Ct. at 2065. To prove prejudice requires a showing that "[t]here is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. 104 S.Ct. at 2068. Accord Gibson v. State, 110 Idaho 631, 718 P.2d 283 (1986).

Parrott points to a number of failings on the part of his trial counsel, all of which focus on his counsel's lack of preparation. Parrott first argues that his trial counsel failed to conduct an investigation into the victim's credibility, her reputation for truthfulness, her prior sexual conduct, or her use of mind-altering drugs on the date of the crime.

Even if one accepts Parrott's allegations that his attorney's pretrial investigation was inadequate, there has been no showing that a more thorough investigation would have produced a different result at trial. Parrott has not directed our attention to any evidence which his trial counsel might have discovered concerning the victim's lack of veracity or her reputation for promiscuity which would have been admissible or which might have effectively cast doubt on her trial testimony. See Storm v. State, 112 Idaho 718, 735 P.2d 1029 (1987). Likewise, evidence of the victim's use of prescription drugs was presented to the jury, and there is no indication in the record that a more thorough investigation would have led to further evidence of drug usage beyond the evidence presented at trial. In short, the record does not indicate anything which trial counsel may have discovered from a more diligent investigation which would have been both admissible and likely to produce a different outcome at trial.

Next, Parrott argues that his trial counsel failed to locate one potential witness, did not subpoena another witness located just before trial, and failed to subpoena any witnesses until five days before trial. However, assuming these allegations to be true, there is no indication in the record as to how these witnesses might have testified, and how their testimony might have affected the outcome of the trial. The district court's summary disposition of this claim was therefore appropriate.

Parrott also complains that his attorney at trial called two witnesses to the stand who contradicted one another's testimony. However, the record is devoid of any indication that this contradiction would have been resolved by further investigation, or that the result at trial would have been different had such contradictory evidence not been presented to the jury. Accordingly, we sustain the district court's summary disposition of this issue.

Parrott asserts that his attorney failed to adequately consult with him prior to and during trial. Again, the defendant's argument stands unsupported by any evidence as to how further consultation would have changed the outcome at trial. There is no...