Pecone v. State

• Decision Date: 16 May 2001
• Docket Number: No. 25753.,25753.
• Citation: 135 Idaho 865,26 P.3d 48
• Parties: Russell Charles PECONE, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

26 P.3d 48

135 Idaho 865

Russell Charles PECONE, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 25753.

Court of Appeals of Idaho.

May 16, 2001.

Review Denied June 22, 2001.

Ronaldo A. Coulter, State Appellate Public Defender; Richard J. Hansen, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Alan G. Lance, Attorney General; T. Paul Krueger II, Deputy Attorney General, Boise, for respondent.

SCHWARTZMAN, Chief Judge.

Russell Charles Pecone appeals from the district court's denial of his application for post-conviction relief. We affirm.

I. FACTS AND PROCEDURE

Pecone pled guilty to voluntary manslaughter, I.C. § 18-4006(1). The district court thereafter sentenced Pecone to the maximum allowable sentence—a fixed term of fifteen years. Notably, after the sentencing hearing on April 18, 1995, in the stairwell of the courthouse, Pecone asked his counsel: "Are we going to do an appeal?" Pecone's counsel subsequently testified: "Shortly after the sentencing, [Pecone and I] discussed appeal. Since a plea had been entered, my recommendation was there was nothing to appeal." According to Pecone's counsel's testimony, he and Pecone "talk[ed] about appeal" and counsel recommended that Pecone pursue an I.C.R. 35 motion for leniency instead of a direct appeal. Trial counsel filed the Rule 35 motion on June 14, 1995—more than fourteen days after Pecone's judgment of conviction was entered, and thus it did not toll the time for filing a notice of appeal. See I.A.R. 14. A Rule 35 motion was heard on September 19 and denied the next day. Pecone's counsel spoke with Pecone after his Rule 35 motion was denied, and in December he "took a trip to Boise ... to discuss post-conviction relief." Pecone never, at any time, directly instructed his counsel to file a notice of appeal, and Pecone's counsel never filed an appeal from the judgment of conviction or from the denial of the Rule 35 motion.

Pecone then filed the instant application for post-conviction relief, with an accompanying affidavit, asserting that his trial counsel provided ineffective assistance in varying ways. The district court eventually denied post-conviction relief to Pecone on all grounds, except the court reserved ruling on the claim that trial counsel was ineffective for failing to file an appeal. Thereafter, an evidentiary hearing was held on this claim.

The district court made numerous findings, including (1) Pecone asked his counsel "Are we going to do an appeal?"; (2) this conversation "was rushed, hurried and confused"; (3) "it is possible that [trial counsel] could reasonably assume that Pecone had no desire to appeal, or that [trial counsel] never understood that Pecone's question was really a request for appeal"; (4) "no weight [should be given] to Pecone's subjective conclusion that he requested an appeal during the ... conversation"; and (5) "Pecone never again talked about appealing the sentence. McKinney [Pecone's counsel] prepared a Rule 35 motion immediately after sentencing and argued it; he communicated with Pecone about post-conviction issues at least until December 1995." The court then determined: "Pecone presents no evidence that he did anything more than inquire about the appeal; he never sought information on the progress of the appeal, or clearly expressed to [trial counsel] that he wished to prosecute an appeal."

Based on the above findings of fact, the court concluded: (1) "[trial counsel] had no duty to file an appeal absent Pecone's affirmative request. Pecone must show that his desire to appeal was `communicated to [counsel] or otherwise understood by him'"; (2) "[n]othing in the record shows that [Pecone] adequately communicated his desire for an appeal to his attorney, or that [trial counsel] understood that Pecone clearly wanted to file an appeal"; and (3) "[n]othing in the record shows that Pecone's `request' clearly communicated his desire to appeal this Court's sentence. Pecone submits no authority for his implied proposition that [trial counsel] should have assumed he wanted an appeal simply because he inquired."

Pecone appealed to the Idaho Supreme Court, which remanded the issue to the district court "for further consideration and entry of an order in view of the United States Supreme Court's opinion issued in Roe v. Flores-Ortega, , 102 S.Ct. 1020 [sic] [120 S.Ct. 1029, 145 L.Ed.2d 985] (2000)." The district court thereafter issued a detailed memorandum decision on remand, concluding after a thorough analysis and review, that Pecone's petition should again be denied.

II.

UNIFORM POST-CONVICTION PROCEDURE ACT (UPCPA) STANDARDS AND THE PROOF REQUIRED TO SHOW INEFFECTIVE ASSISTANCE OF COUNSEL

A. UPCPA Standards

An application for post-conviction relief initiates a proceeding that is civil in nature. Hassett v. State, 127 Idaho 313, 315, 900 P.2d 221, 223 (Ct.App.1995). A petitioner must prove by a preponderance of the evidence the truth of the allegations upon which the application is based. Id. at 316, 900 P.2d at 224. The district court does not have to accept a petitioner's mere conclusory allegations or conclusions of law. Id.

B. Standard Of Review

On an appeal from an ineffective assistance of counsel claim, the appellate court reviews the district judge's factual findings to determine whether they were clearly erroneous. The reviewing court, however, exercises free review of the district judge's application of law. Ray v. State, 133 Idaho 96, 101, 982 P.2d 931, 936 (1999).

C. Ineffective Assistance Of Counsel

To prevail on an ineffective assistance of counsel claim, a defendant is required to show that counsel's performance was deficient and that he or she was prejudiced by that deficiency. LaBelle v. State, 130 Idaho 115, 118, 937 P.2d 427, 430 (Ct. App.1997), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

. A defendant must show that counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688,

104 S.Ct. 2052. There is a strong presumption that trial counsel's representation was within the "wide range of professionally competent assistance." Id. at 690, 104 S.Ct. 2052; Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). To establish prejudice, the defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694,

104 S.Ct. 2052. Where counsel refuses a defendant's request to appeal, prejudice is presumed. Beasley v. State, 126 Idaho 356, 359, 883 P.2d 714, 717 (Ct.App.1994). However, a defendant who initially requests an appeal may later decide against it on reliance upon advice of counsel. If an attorney competently advises against an appeal, and the defendant accepts that advice, there is no violation of the right to effective assistance of counsel. Mata v. State, 124 Idaho 588, 593, 861 P.2d 1253, 1258 (Ct.App.1993).

Recently, in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), the United States Supreme Court clarified these burdens of proof as they apply in cases where the alleged ineffective assistance is based on assertions that trial counsel failed to file an appeal. In Flores-Ortega, the United States Supreme Court specifically addressed the question presented in the instant case: "Is counsel deficient for not filing a notice of appeal when the defendant has not clearly conveyed his wishes one way or the other?" Flores-Ortega, 528 U.S. at 477, 120 S.Ct. 1029. The Supreme Court elaborated:

In those cases where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken, we believe the question whether counsel has performed deficiently by not filing a notice of appeal is best answered by first asking a separate, but antecedent, question: whether counsel in fact consulted with the defendant about an appeal. We employ the term "consult" to convey a specific meaning—advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes .... If counsel has not consulted with the defendant, the court must in turn ask a second, and subsidiary, question: whether counsel's failure to consult with the defendant itself constitutes deficient performance.

Id. at 478, 120 S.Ct. 1029. The Supreme Court next addressed the related question: "Under what circumstances does counsel have an obligation to consult with the defendant about an appeal?" Id. After stating that it will not always be that "counsel's failure to consult with the defendant about an appeal is necessarily unreasonable, and therefore deficient," the Supreme Court pronounced:

We ... hold that counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal ..., or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known.... Even in cases when the defendant pleads guilty, the court must consider such factors as whether ... the plea expressly reserved or waived some or all appeal rights. Only by considering all relevant factors in a given case can a court properly determine whether a rational defendant would have desired an appeal or that the particular defendant sufficiently demonstrated to counsel an interest in an appeal.

Id. at 480, 120 S.Ct. 1029. Notably, the Supreme Court further wrote: "We expect that courts evaluating the reasonableness of counsel's performance using this inquiry we have described will find, in the vast majority of cases, that counsel had a duty to consult with the defendant about an appeal." Id. at 481, 120 S.Ct. 1029. This is where we begin our inquiry.

III. WAS TRIAL COUNSEL'S...