Piro v. State

• Decision Date: 25 April 2008
• Docket Number: No. 33409.,33409.
• Parties: Kevin PIRO, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

190 P.3d 905

146 Idaho 86

Kevin PIRO, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 33409.

Court of Appeals of Idaho.

April 25, 2008.

Review Denied August 14, 2008.

Greg S. Silvey, Kuna, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Ralph R. Blount, Deputy Attorney General, Boise, for respondent.

PERRY, Judge.

Kevin Piro appeals from the district court's order dismissing his application for post-conviction relief. For the reasons set forth below, we affirm.

I. FACTS AND PROCEDURE

Early in 2001, Piro was taken into custody for questioning regarding an attempted lewd conduct. Piro was placed in an interrogation room at the police station and questioned by two officers. After questioning Piro for approximately an hour, the officers left the room and returned with a bottle of water, a pencil, and paper. The officers left the room again so that Piro could complete a witness statement. When the officers returned to the interrogation room, they told Piro to leave the water bottle, placed him under arrest for the attempted lewd conduct, and took him to a holding cell.

The officers returned to the interrogation room and collected the bottle of water from which Piro had been drinking. The officers submitted the bottle for DNA testing, and once Piro's DNA sample was obtained, it was submitted to a national database. Piro's DNA sample came back as a match with a sample taken from an unsolved rape case that was approximately one year old. Based on the DNA match, Piro was charged with rape and burglary. He filed a motion to suppress the DNA evidence obtained from the water bottle, arguing primarily that the evidence was obtained unlawfully because the officers had not first obtained a detention warrant pursuant to I.C. § 19-625. The district court denied Piro's motion, and a jury found him guilty of both the rape and burglary charges. Piro appealed the denial of his motion to suppress. This Court affirmed Piro's judgment of conviction, holding that a detention warrant was not required under the statute because Piro was already legally detained. State v. Piro, 141 Idaho 543, 546, 112 P.3d 831, 834 (Ct.App.2005).

Piro filed a pro se application for post-conviction relief and was appointed counsel. After a motion for summary dismissal by the state and a response by Piro's post-conviction counsel, the district court held an evidentiary hearing. The district court began by listing the many claims in Piro's pro se application, but Piro presented evidence on only three issues: ineffective assistance of trial and appellate counsel based on his attorneys' failure to argue that the DNA evidence obtained from the water bottle should have been suppressed on Fourth Amendment grounds; ineffective assistance of trial counsel for his attorney's failure to communicate; and ineffective assistance of trial counsel for his attorney's failure to communicate a plea offer. At the hearing on the post-conviction application, Piro and his trial attorney both testified. When Piro attempted to testify that his attorneys were ineffective for failing to argue the suppression of the DNA evidence on Fourth Amendment grounds, the state objected and the district court determined that, based on this Court's opinion in Piro's direct appeal, the issue was moot. The district court dismissed Piro's failure to communicate and failure to communicate the plea offer claims. Piro appeals.

II. STANDARD OF REVIEW

A claim of ineffective assistance of counsel may properly be brought under the post-conviction procedure act. Murray v. State, 121 Idaho 918, 924-25, 828 P.2d 1323, 1329-30 (Ct.App.1992). To prevail on an ineffective assistance of counsel claim, the defendant must show that the attorney's performance was deficient and that the defendant was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct.App.1995). To establish a deficiency, the applicant has the burden of showing that the attorney's representation fell below an objective standard of reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). To establish prejudice, the applicant must show a reasonable probability that, but for the attorney's deficient performance, the outcome of the trial would have been different. Aragon, 114 Idaho at 761, 760 P.2d at 1177. This Court has long adhered to the proposition that tactical or strategic decisions of trial counsel will not be second-guessed on appeal unless those decisions are based on inadequate preparation, ignorance of relevant law, or other shortcomings capable of objective evaluation. Howard v. State, 126 Idaho 231, 233, 880 P.2d 261, 263 (Ct.App.1994).

III. ANALYSIS

A. Issues on Which No Evidence was Presented to the District Court

Piro's application for post-conviction relief contains numerous claims. Piro's brief to the district court, written by his post-conviction counsel, includes only two issues — whether Piro received ineffective assistance of counsel for his trial and appellate attorneys' failure to argue the suppression of the DNA evidence on Fourth Amendment grounds and whether Piro's trial counsel was ineffective for failing to communicate an alleged plea offer. On appeal, Piro's pro se appellate brief contains all the claims from his application, but Piro's supplemental brief and reply brief, both written by post-conviction counsel, address only suppression of the evidence on Fourth Amendment grounds. The state asserts that Piro's allegations in his application and pro se brief were abandoned and should not be considered for the first time on appeal because Piro did not present evidence regarding these claims to the district court at his evidentiary hearing and, therefore, the district court did not address them. Piro's reply brief does not respond to the state's contention that these claims should not be considered on appeal.

At the beginning of Piro's hearing on his post-conviction application, the district court stated:

Well, the court will note that the defendant has alleged ineffective assistance of counsel: That he argues that he was denied his right to confront the accuser because she was only present when she testified. He has asserted poor cross-examination by defense counsel. Not making a clear record. That his intent was not proven. That there was poor communication by counsel with the defendant. That the defense conspired with the prosecution. That the defendant only talked to his client by phone after the first meeting, which occurred at the jail. That he had sent conflicting letters, and that they were conflicting because he feared that they would be intercepted. And that the defense failed to file a motion for reduction of sentence.

Defense counsel and the court failed to disqualify the public defender. The sentence was too harsh. That a public trial was denied because the public did not attend. That the court erred in failing to grant the defendant's Rule 29 motion. That the evidence was insufficient to support the verdict. That defense counsel was ineffective in not raising proper objections. That the defendant was unfairly cross-examined by the State. And that there was prosecutorial misconduct.

Defendant has also raised, once again, issues relating to the obtaining of the DNA evidence arguing that appropriate arguments were not made with regard to suppression.

Briefing has been filed. Parties have indicated that they are in fact prepared to proceed in this matter.

Other than precluding testimony on Piro's claim that his attorneys failed to argue Fourth Amendment grounds for the motion to suppress, at no point did the district court attempt to prohibit Piro from presenting evidence on any of these other claims. However, Piro presented no evidence or argument regarding the majority of the claims as framed by the district court.

In the order dismissing Piro's post-conviction application after the evidentiary hearing, the district court began by stating:

The court now rules on the only two issues presented at trial, ineffective assistance of counsel based on [Piro's] assertion that his attorney failed to advise [Piro] of a plea offer from the State and ineffective assistance of counsel based on [Piro's] assertion that his attorney only met with him once in person at the jail, with the remaining issues all having been dismissed as being without merit.

This statement by the district court confirms that Piro presented testimony on only two issues at his post-conviction hearing. Additionally, Piro's supplemental brief and reply brief on appeal, both prepared by his post-conviction attorney, argue only that Piro received ineffective assistance of counsel because his trial and appellate attorneys failed to argue Fourth Amendment grounds for the suppression of his DNA evidence. Therefore, we will not address Piro's claims raised in his application that were not preserved for appeal having failed to present evidence on them before the district court at the hearing provided on his application.

B. Suppression of the Evidence

Piro argues that he received ineffective assistance of trial and appellate counsel because neither attorney argued that the DNA evidence obtained from the water bottle should have been suppressed on Fourth Amendment grounds. The state counters by arguing a number of different theories, including that Piro had no reasonable expectation of privacy in the water bottle and that he abandoned it.

In a post-conviction proceeding challenging an attorney's failure to pursue a motion in the underlying criminal action, the district court may consider the probability of success of the motion in question in determining whether the attorney's inactivity constituted incompetent performance. Boman v. State, 129 Idaho 520, 526, 927 P.2d 910, 916 (Ct.App.1996). Where the alleged deficiency is counsel's failure to file a motion, a...