Phillips v. State

• Decision Date: 26 April 1985
• Docket Number: No. 15433,15433
• Citation: 108 Idaho 405,700 P.2d 27
• Parties: Steven G. PHILLIPS, Petitioner-Appellant, v. The STATE of Idaho, Respondent-Respondent.
• Court: Idaho Supreme Court

Page 27

700 P.2d 27

108 Idaho 405

Steven G. PHILLIPS, Petitioner-Appellant, v. The STATE of Idaho, Respondent-Respondent.

No. 15433.

Supreme Court of Idaho.

April 26, 1985.

G. La Marr Kofoed, Fruitland, for petitioner-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., and Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for respondent-respondent.

DONALDSON, Chief Justice.

This is an appeal from a post-conviction relief proceeding. On the night of New Year's Eve, January 1, 1983, petitioner, Phillips broke into the Iron Skillet Cafe in Weiser, Idaho. He stole a small amount of goods along with the money on hand, a two-dollar bill. He was arrested and charged with first degree burglary to which he pled guilty. A pre-sentence report was ordered which indicated that Phillips had been involved in seven burglaries and had served time in a correctional institution in Oregon.

On April 4, 1983, a sentencing hearing was held during which Phillips' counsel requested that Phillips be put on probation only. The court questioned Phillips and his sister and his employer, both of whom spoke in support of him. The trial court sentenced Phillips to the Idaho State Board of Correction for a maximum period of 15 years, but suspended the sentence and placed him on probation for five years. As conditions of the probation, Phillips was ordered to pay restitution to the Iron Skillet, to complete his G.E.D., to participate in counseling imposed by the probation department, to pay a $300-fine to the State and to serve 90 days in the county jail with work-out privileges.

On May 6, 1983, Phillips appeared before the court on a probation violation charge. The State alleged that on the evening of April 13, 1983, Phillips had brought marijuana into the county jail and smoked it. Petitioner denied the allegations and a hearing was set for May 9. At this hearing Phillips admitted to using the marijuana. The court revoked his probation but also reduced the sentence to an indeterminate period not to exceed five years.

On September 13, 1983, with the assistance of another prison inmate, Phillips filed a petition for post-conviction relief. He alleged that (1) the court forced him to plead guilty; (2) his counsel was ineffective because the counsel failed to arrange a favorable plea bargain, neglected to insure a proper probation hearing within the specified time and manner, and allowed Phillips to enter a guilty plea and revocation of probation when Phillips was obviously pleading guilty under duress; and (3) the prosecutor was aware that his guilty plea was not knowingly and voluntarily made and coerced Phillips by threats of long confinement. On October 3, 1983, the trial court filed its order of intention to dismiss the petition because it contained only unsupported allegations and because Phillips failed to set forth sufficient facts to constitute relief under I.C. § 19-4901. Between October 3, 1983 and February 15, 1984, petitioner filed various motions, including a motion for production of certain documents, all of which were denied by the trial court. On February 15, 1984, the trial court entered its order dismissing the petition for relief. The court found that the petition contained "mere conclusory allegations without supporting facts under oath" and that Phillips had sufficient time within which to file "additional affidavits setting forth facts to support his mere conclusions, but the Petitioner chose to ignore the opportunity." This appeal followed.

The first issue presented by this appeal is whether the trial court erred in concluding that Phillips' petition did not raise any material issues of fact and in summarily dismissing Phillips' petition.

I.C. § 19-4906 provides in pertinent part:

"(b) When a court is satisfied, on the basis of the application, the answer or motion, and the record, that the applicant is not entitled to post-conviction relief and no purpose would be served by any further proceedings, it may indicate to the parties its intention to dismiss the application and its reasons for so doing. The applicant shall be given an opportunity to reply within 20 days to the proposed dismissal. In light of the reply, or on default thereof, the court may order the application dismissed or grant leave to file an amended application or, direct that the proceedings otherwise continue. Disposition on the pleadings and record is not proper if there exists a material issue of fact.

Such summary dismissal is appropriate even if the petitioner's alleged facts are uncontroverted by the State. Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969). This is true because while the underlying facts must be regarded as true, the petitioner's conclusions need not be so accepted. Kraft v. State, 100 Idaho 671, 674, 603 P.2d 1005, 1008 (1979).

In his petition, Phillips asserted as grounds for relief the unsubstantiated allegations that (1) the court forced him to plead guilty; (2) he was denied effective assistance of counsel; and (3) the prosecution forced him to plead guilty. In its answer to Phillips' petition, among other things, the State pointed out that Phillips' counsel was effective in obtaining a suspended judgment for his conviction of first degree burglary despite his prior felony record and incarceration. Additionally, the State asserted that the transcript reflects that Phillips freely and voluntarily pled guilty to both the initial charge and the parole violation and that there was no evidence to indicate force or coercion by the court or prosecutor. Finally, the State adds that Phillips' counsel, when advised by the court that it would be two months before the court could hold a hearing on the parole violation, consulted with Phillips about the interim length of incarceration and instead arranged for a hearing a few days later.

The transcripts of the initial sentencing hearing and of the probation violation hearing are replete with inculpatory statements: for example Phillips stated that the burglary was stupid and ridiculous, that when he drinks he gets that way, and that he doesn't burglarize when he is straight. Phillips' responses appear very candid and open. There is no indication anywhere in the record that Phillips' plea was not knowing and voluntary. Further, relief cannot be granted upon allegedly inadequate assistance of counsel where there is no evidence of prejudice resulting from the activity or lack of activity of counsel. Drapeau v. State, 103 Idaho 612, 615, 651 P.2d 546, 549 (Ct.App.1982). Phillips has presented no evidence that he has been prejudiced by his counsel in any way. Therefore, we hold that the trial court properly concluded that Phillips' allegations raise no issue of material fact. Summary dismissal was proper.

Phillips next argues that he was unable to gather facts because the trial court denied his motion for production of documents. However, I.C.R. 57(b) provides that "the provisions for discovery in the Idaho Rules of Civil Procedure shall not apply to the [post-conviction relief] proceedings unless and only to the extent ordered by the trial court." Thus, it was within the trial court's discretion whether to grant Phillips' request. Absent an abuse of that discretion, we must uphold the trial court's decision. See, State v. Powers, 100 Idaho 290, 291, 596 P.2d 802, 803 (1979).

In Phillips' motion, he requested transcripts of the preliminary hearing and the probation revocation hearing, the pre-sentence report and a copy of any and all motions in the record. The State responded to the motion by stating that it had no objection to a court order directing the clerk to send copies of all the records to Phillips. The trial court, however, denied Phillips' request. We hold that the denial was not an abuse of discretion for the following reasons. First, the trial court determined that Phillips did not comply with I.C. § 19-4904 which requires a showing of indigency before the court will provide counsel and assistance. Second, since Phillips waived his right to a preliminary hearing, there was no preliminary hearing transcript to be produced. Also, as stated above, there is nothing in the probation hearing transcript or the record to support Phillips' allegations. Finally, prior to dismissal, the trial court reviewed the entire record and found nothing to support Phillips' allegations. The only document that might have been of value to Phillips was the pre-sentence report. That document is not before us in the record and Phillips has not requested it to be part of the record.

Accordingly, the judgment of the trial court is affirmed.

No costs or attorney fees on appeal.

SHEPARD, BAKES and HUNTLEY, JJ., concur.

HUNTLEY, Justice, specially concurring.

While I concur in the result reached by the majority, I find the points raised by Justice Bistline's dissent compelling. However, Justice Bistline's dissent is not so much a dissent from the majority opinion as a discussion of issues neither raised nor briefed by the parties nor addressed by the majority of this Court.

I regret that defendant's appellate counsel did not raise many of the issues addressed by Justice Bistline. Also, I think it unfortunate that Justice Bistline's lucid discussion falls under the rubric of a "dissent" because that implies that the majority considered the issues he discusses and reached a contrary position. This is not the case. The majority may well agree with Justice Bistline's position on other questions if called upon to resolve those issues in a further appeal.

BISTLINE, Justice, dissenting.

Counsel who regularly represent those who run afoul of the law, on reading the Court's opinion will see some shortcomings in the administration of criminal justice. However, there is even more amiss than that which surfaces in the opinion. The Court's opinion does note that Phillips had an attorney when he was first sentenced to 15 years (execution suspended) on April 4, 1983, and also when a...