Parvin v. State

Decision Date30 April 2012
Docket NumberDocket No. 38295
PartiesMICHAEL R. PARVIN, Petitioner-Appellant, v. STATE OF IDAHO, Respondent.
CourtIdaho Court of Appeals

2012 Unpublished Opinion No. 453

Stephen W. Kenyon, Clerk


Appeal from the District Court of the Third Judicial District, State of Idaho,

Canyon County. Hon. Bradly S. Ford, District Judge.

Order denying petition for post-conviction relief, vacated and case remanded.

Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy

Appellate Public Defender, Boise, for appellant. Spencer J. Hahn argued.

Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy

Attorney General, Boise, for respondent. Russell J. Spencer argued.

WALTERS, Judge Pro Tem

Michael R. Parvin appeals from the district court's dismissal of his application for post-conviction relief following an evidentiary hearing. Parvin contends that the district court erred when it applied an incorrect legal standard to his ineffective assistance of counsel claim. That claim arose from Parvin's counsel allegedly failing to ensure that a judge timely ruled on Parvin's Idaho Criminal Rule 35 motion.


Parvin pled guilty in 1999 to one count of lewd conduct with a child under the age of sixteen years. Following his guilty plea, Parvin received a unified sentence of life, with ten years determinate. Parvin then filed a timely motion under Rule 35, which the district court granted. Parvin's sentence was reduced to a twenty-year term, with five years determinate. The State filed a motion for reconsideration arguing that the victims' rights were violated and that the courtimproperly applied the law in granting the Rule 35 motion. The district court vacated the order reducing Parvin's sentence on the basis that because the victims were not notified of the Rule 35 motion, the victims' constitutional and statutory rights had been violated.

Parvin appealed the district court's decision to set aside its order reducing the sentence. Parvin argued that the district court's decision was erroneous because the court lacked the authority to vacate the original order and had no jurisdiction to consider a motion for reconsideration, and that reinstating the original sentence violated his due process rights under the Fifth and Fourteenth Amendments. The State countered that the district court lost its jurisdiction to decide the Rule 35 motion because it failed to act in a reasonable amount of time. This Court held that the record did not contain a sufficient reason as to why the district court took more than three months to decide the Rule 35 motion, and as such, "the jurisdiction of the district court had expired" prior to the issuance of the order reducing Parvin's sentence. State v. Parvin, 137 Idaho 783, 786, 53 P.3d 834, 837 (Ct. App. 2002).

In 2003, Parvin filed a pro se application for post-conviction relief alleging, in pertinent part, ineffective assistance of counsel for failing to ensure that his Rule 35 motion was ruled upon in a reasonable period of time. Parvin requested assistance of counsel, which the district court granted and appointed the Canyon County Public Defender. A conflict was discovered and the case was transferred to a conflict public defender. After the subsequent appointment, the State filed a motion for summary dismissal. A notice of substitution of counsel was filed as another attorney took over the case. No other action was taken until a notice of intent to dismiss was filed pursuant to Idaho Rule of Civil Procedure 40(c). The district court filed an order of dismissal thereafter.

Parvin later testified that he never received notice from either the district court or his appointed counsel of the proposed dismissal. Upon learning of the dismissal, Parvin filed a notice of appeal, which was then dismissed because it was untimely.

Parvin filed another application for post-conviction relief, re-alleging the grounds in the original application, and alleging several additional claims of ineffective assistance of his post-conviction counsel. Once again, Parvin argued that his original trial attorney was ineffective for failing to ensure that the district court ruled on his Rule 35 motion in a timely manner. He also asserted that he was entitled to a successive petition "because my claims were not knowingly orvoluntarily waived. My claims were dismissed due to the ineffective assistance of post-conviction counsel."

The district court held that Parvin was entitled to a decision on the merits of his successive petition. After an evidentiary hearing, the district court denied and dismissed Parvin's amended application for post-conviction relief. With respect to Parvin's claim that ineffective assistance of counsel resulted in the district court's loss of jurisdiction over his Rule 35 motion, the district court held that the claim was one that was "addressed (even if not in the appellate decision) or should have been addressed on the direct appeal filed in the underlying criminal case." Parvin has timely appealed.


There is no question that Parvin has raised a plausible claim of ineffective assistance of counsel. In State v. Day, 131 Idaho 184, 953 P.2d 624 (Ct. App. 1998), this Court recognized:

For future reference, we make it clear that when a defendant files a Rule 35 motion, it will of necessity become defense counsel's responsibility to precipitate action on the motion within a reasonable time frame, or otherwise provide an adequate record and justification for delay, to avoid the risk of the trial court losing jurisdiction to consider the motion.

Id. at 186, 953 P.2d at 626.

In order to prevail in a post-conviction proceeding, the applicant must prove the allegations by a preponderance of the evidence. Idaho Code § 19-4907; Stuart v. State, 118 Idaho 865, 801 P.2d 1216 (1990). When reviewing a decision denying post-conviction relief after an evidentiary hearing, an appellate court will not disturb the lower court's factual findings unless they are clearly erroneous. I.R.C.P. 52(a); Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence are all matters solely within the province of the district court. Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We exercise free review of the district court's application of the relevant law to the facts. Nellsch v. State, 122 Idaho 426, 434, 835 P.2d 661, 669 (Ct. App. 1992).

A. Raised on Direct Appeal

The district court's holding is ambiguous as to whether it dismissed Parvin's ineffective assistance of counsel claim because the claim had already been raised, or because the claim wasrequired by law to be raised in the direct appeal. The district court found "that Parvin's remaining [Rule 35 motion] claims were claims that were addressed (even if not in the appellate decision) or should have been addressed on the direct appeal filed in the underlying criminal case." The State argues that this language was not addressing Parvin's ineffective assistance of counsel claim following the Rule 35 motion. According to the State, the language only speaks to Parvin's claim of a due process violation and that the district court failed to address Parvin's ineffective assistance of counsel claim altogether. The State believes this is dispositive to our ruling in this case for two reasons: (1) the district court did not address the ineffective assistance of counsel claim in its dismissal of his action and Parvin did not assert this as error on appeal; and (2) Parvin cannot now claim the lack of finding as error because he failed to raise the issue to the trial court by an appropriate motion (referencing I.R.C.P. 52(a)).

The State's arguments are not persuasive.1 First, the district court combined all of the Rule 35 claims together and disposed of them with a single line of reasoning characterized in the court's decision, as "The I.C.R. 35 Motion claims." The State's argument that this heading only addresses the due process violation is unpersuasive for two reasons: (1) the title of the section and the language of the decision addresses "claims" instead of only the one due process claim; and (2) the district court mentions the appointed public defender as a "respective player[] in the determination of that motion" and that the court-appointed counsel was not part of the due process violation claim.

The State's second argument, that Parvin did not make the proper motion to contest the district court's lack of specific findings, also fails for two reasons. First, Parvin does not contend that the district court's error derives from a lack of findings, but rather Parvin asserts that thecourt affirmatively made an erroneous finding or conclusion of law. Second, I.R.C.P. 52(b), which is the justification for the State's argument, does not require a reversal if not complied with. "[I]t is the rule in Idaho that neither an objection to findings nor a request or motion for findings is a prerequisite to appellate review and such failure to bring the matter to the attention of the trial court does not waive the right to bring it up on appeal." Owen v. Boydstun, 102 Idaho 31, 35-36, 624 P.2d 413, 417-418 (1981).

We turn first to the question of whether the claim was raised by a direct appeal. The decision in State v. Parvin shows that three issues were raised in that appeal: (1) whether the district court's decision to vacate the reduced sentence was erroneous because the court lacked authority to vacate the reduced sentence; (2) whether the district court had jurisdiction to consider a motion for reconsideration of a reduced sentence; and (3) whether reinstating the original sentence violated Parvin's Fifth and Fourteenth Amendment due process rights. The question of whether the district court had lost...

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