Passons v. State
| Decision Date | 18 December 2020 |
| Docket Number | Docket No. 47124 |
| Citation | 168 Idaho 668,485 P.3d 164 |
| Court | Idaho Court of Appeals |
| Parties | Russell Allen PASSONS, Petitioner-Appellant, v. STATE of Idaho, Respondent. |
Robyn A. Fyffe, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.
Russell Allen Passons appeals from a judgment of the district court summarily dismissing his petition for post-conviction relief. We affirm.
Passons entered a retail store twice in one day, each time placing merchandise in a shopping cart and proceeding past the cash registers without paying. During the second attempt to leave the store, two loss-prevention employees confronted Passons as he exited. According to the employees, Passons swore; pulled out a knife and pointed it at them; and ran to his car, abandoning the merchandise. He was arrested the next day. Passons was charged with one count of burglary and two counts of aggravated assault (one for each employee), along with sentencing enhancements for use of a deadly weapon and being a persistent violator of the law.
Initially, a public defender was appointed to represent Passons. Based on Passons’ desire to represent himself, the trial court1 allowed Passons’ counsel to withdraw, but ordered counsel to assist Passons in a standby role. After experiencing difficulties in representing himself, Passons requested that counsel be reappointed; the trial court granted that request.
At trial, a jury found Passons guilty of all three counts. Regarding the sentencing enhancements, the trial court found Passons used a deadly weapon but that he was not a persistent violator of the law. Passons appealed and this Court affirmed. State v. Passons , 158 Idaho 286, 346 P.3d 303 (Ct. App. 2015).
Passons filed a pro se petition for post-conviction relief in this case. With the assistance of counsel, Passons filed an amended petition in which he alleged a variety of claims, including a violation of his right to self-representation and ineffective assistance of both standby counsel and trial counsel. The State moved for summary dismissal and the district court granted the motion. Passons appeals.
On appeal from an order of summary dismissal, we apply the same standards utilized by the trial courts and examine whether the petitioner's admissible evidence asserts facts which, if true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925, 929 (2010) ; Sheahan v. State , 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). Over questions of law, we exercise free review. Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069 (2009) ; Downing v. State, 136 Idaho 367, 370, 33 P.3d 841, 844 (Ct. App. 2001).
Passons asserts the district court erred in granting summary dismissal of his claims related to his right to self-representation and ineffective assistance by standby counsel and trial counsel. Passons also asserts that the cumulative effect of the errors he sought to show in his prior appeal, combined with the errors he seeks to show in this appeal, warrant post-conviction relief. The State responds that Passons has not preserved part of his argument that his right to self-representation was violated and that, in any event, Passons’ right to self-representation does not include the rights to which he says he is entitled. For Passons’ assertion that standby counsel rendered ineffective assistance, the State contends that Passons cannot assert such a claim because there is no constitutional right to effective assistance of standby counsel. The State also contends that Passons’ ineffective assistance of trial counsel claims fail because Passons has failed to show that his trial counsel's actions were the result of inadequate preparation, ignorance of the law, or some other failure capable of objective review. Because Passons fails to show error, we affirm.
Passons contends he presented sufficient facts to show his right to self-representation was violated such that the district court erred in summarily dismissing this claim without an evidentiary hearing. Passons makes two basic arguments on appeal related to his right to self-representation. First, he argues he was effectively deprived of the right because he did not have sufficient access to legal materials, funds for investigation, or time to prepare for the preliminary hearing. Second, he asserts his waiver of his right to self-representation was not valid. The State contends that Passons failed to preserve his first argument—that a lack of resources effectively deprived him of the right to self-representation. The State responds to Passons’ second argument by asserting it is unsupported by law. We hold that Passons has failed to show the district court erred in dismissing any substantive claim related to his right to self-representation.2
With respect to Passons’ first argument, the record reveals that, in the context of "Count III" of his first amended petition, which Passons labeled " Faretta issue,"3 Passons made several allegations, including: his request for an investigator and "funds for the same" was denied while Passons was representing himself; standby counsel "did not provide legal material nor factual investigation"; Passons’ inability to "prepare for trial," a lack of assistance by standby counsel, and a "lack of funds for investigation and similar rulings forced [Passons] to give up hope in properly representing [himself]." In support of the " Faretta issue," Passons further alleged "an unconstitutional waiver" because "trial counsel" did not adequately advise Passons of the right and the trial court did not conduct an adequate inquiry regarding the waiver. These allegations do not reflect a substantive claim regarding the denial of resources.4 Rather, the allegations reflect, at most, claims that counsel was ineffective and Passons’ "waiver" of the right to self-representation was invalid, which is how the district court interpreted Passons’ " Faretta issue." If Passons believed that the district court's characterization of this issue (or "Count") was incorrect, Passons was obligated to raise such a contention to the district court. Because Passons failed to do so, his claims regarding the lack of resources is not preserved. See Caldwell v. State , 159 Idaho 233, 242, 358 P.3d 794, 803 (Ct. App. 2015) ().
We next turn to Passons’ second argument regarding his right to self-representation. Passons contends his waiver of his right to self-representation was invalid because the trial court questioned his prior decision to represent himself and did not make sure his waiver of the right to do so was intelligent and knowing. In the underlying criminal case, Passons’ counsel moved to withdraw based on Passons’ desire to exercise his right to represent himself. After some discussion with Passons about the difficulties of self-representation, the trial court did not rule on the motion, gave Passons a day to think it over, and granted his motion to continue the preliminary hearing. The next day, the trial court allowed counsel to withdraw and issued additional warnings to Passons about the hazards of self-representation. The trial court ordered Passons’ counsel to provide standby assistance to Passons.
After choosing to represent himself, Passons moved to continue the preliminary hearing a second time. This motion was denied. On the day of the preliminary hearing, Passons again moved for a continuance because he received his case file only two days prior to the hearing. This motion was denied, leaving the preliminary hearing scheduled for that day. After representing himself at the preliminary hearing, Passons filed a motion for unlimited access to the jail's law library, instead of the one hour normally provided, and for more than the six sheets of paper he was allowed. He also submitted an ex parte application for funds, the majority of which he indicated he planned on using to hire an investigator.
At Passons’ arraignment, the trial court did not address his motion for increased access to legal materials or application for funds. Instead, the trial court advised Passons of the hazards of self-representation. After conferring with his standby counsel, Passons asked the trial court to reappoint counsel, which the trial court granted. On the basis that Passons again had counsel, the trial court later denied Passons’ motion for increased access to legal materials.
In addressing Passons’ claim that the trial court had an obligation to ensure that he knowingly and intelligently opted to have counsel reappointed rather than continue representing Passons, the district court engaged in a detailed analysis of the cases Passons cited and rejected his argument. The district court noted that the cases Passons relied on related to good cause for the appointment of substitute counsel, not reappointment of counsel following a period of self-representation. Because Passons failed to support his claim with authority, and because the district court found no error in the trial court's decision to grant Passons’ request to reappoint counsel, it summarily dismissed Passons’ " Faretta issue."
On appeal, Passons relies on one of the cases he cited to the district court, United States v. Hantzis, 625 F.3d 575 (9th Cir. 2010), and cites a new case, United States v. Audette , 923 F.3d 1227 (9th Cir. 2019), both of which he claims support his contention that he did not validly waive his right to self-representation. These authorities are inapposite—they describe when a trial court is required to reissue Faretta warnings. See Audette , 923 F.3d at 1236 ; Hant...
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