Ramsey v. State

• Decision Date: 31 December 2015
• Docket Number: No. 41834.,41834.
• Court: Idaho Court of Appeals
• Parties: Tyrell RAMSEY, Petitioner–Appellant, v. STATE of Idaho, Respondent.

159 Idaho 887

367 P.3d 711

Tyrell RAMSEY, Petitioner–Appellant,

v.STATE of Idaho, Respondent.

No. 41834.

Court of Appeals of Idaho.

Dec. 31, 2015.

Review Denied March 17, 2016.

Sara B. Thomas, State Appellate Public Defender; Eric D. Fredericksen, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

SUBSTITUTE OPINION

THE COURT'S PRIOR OPINION DATED SEPTEMBER 11, 2015 IS HEREBY WITHDRAWN

GUTIERREZ, Judge.

Tyrell Ramsey appeals from the district court's judgment summarily dismissing his petition for post-conviction relief. Specifically, Ramsey requests his convictions be vacated based on the alleged denial of the right to effective assistance of counsel. Alternatively, Ramsey requests that this Court reverse the district court's order granting summary dismissal and remand the case for an evidentiary hearing. For the reasons discussed below, we affirm the judgment summarily dismissing Ramsey's petition for post-conviction relief.

I.FACTUAL AND PROCEDURAL BACKGROUND

The State charged Ramsey with two counts of attempted rape, two counts of battery with the intent to commit rape, and penetration by a foreign object. Ramsey pled not guilty, and the case went to a jury trial. During Ramsey's jury trial, his trial counsel often expressed difficulty hearing. Additionally a witness, Kirk Ostrander, made remarks about Ramsey, claiming he likes to fight and suggesting he may have raped other women in the past. Ramsey's trial counsel did not object to this testimony, nor did he move to strike the testimony. During jury deliberations, in response to a jury question, the trial court judge directed the jury to continue deliberating. Ramsey's trial counsel did not object to the instruction.

The jury found Ramsey not guilty of one count of attempted rape and one count of battery with intent to commit rape. However, the jury found him guilty of one count of battery with intent to commit rape, sexual penetration with a foreign object, and an included offense of misdemeanor battery. Ramsey appealed, and this Court affirmed the judgment of conviction. State v. Ramsey, Docket No. 38228, 2012 WL 9494167 (Ct.App. Aug. 1, 2012) (unpublished). Ramsey then filed the current petition, challenging his convictions. Specifically, he alleged the above inactions by trial counsel amount to ineffective assistance of counsel. Ramsey also alleged he was denied the right to a fair trial under the cumulative error doctrine. The State moved for summary dismissal, which the district court granted. Ramsey filed a motion for relief from judgment, which the district court denied. Ramsey appeals from the entry of judgment dismissing his petition for post-conviction relief.

II.ANALYSIS

A petition for post-conviction relief initiates a proceeding that is civil in nature. Idaho Code section 19–4907 ; Rhoades v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009) ; State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983) ; Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct.App.1992). Like a plaintiff in a civil action, the petitioner must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct.App.2002). A petition for post-conviction relief differs from a complaint in an ordinary civil action. Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004). A petition must contain much more than a short and plain statement of the claim that would suffice for a complaint under I.R.C.P. 8(a)(1). Rather, a petition for post-conviction relief must be verified with respect to facts within the personal knowledge of the petitioner, and affidavits, records, or other evidence supporting its allegations must be attached or the petition must state why such supporting evidence is not included with the petition. I.C. § 19–4903. In other words, the petition must present or be accompanied by admissible evidence supporting its allegations or the petition will be subject to dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct.App.2011).

Idaho Code section 19–4906 authorizes summary dismissal of a petition for post-conviction relief, either pursuant to a motion by a party or upon the court's own initiative, if it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. When considering summary dismissal, the district court must construe disputed facts in the petitioner's favor, but the court is not required to accept either the petitioner's mere conclusory allegations, unsupported by admissible evidence, or the petitioner's conclusions of law. Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct.App.1994) ; Baruth v. Gardner, 110 Idaho 156, 159, 715 P.2d 369, 372 (Ct.App.1986). Moreover, the district court, as the trier of fact, is not constrained to draw inferences in favor of the party opposing the motion for summary disposition; rather, the district court is free to arrive at the most probable inferences to be drawn from uncontroverted evidence. Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct.App.2008). Such inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify them. Id.

Claims may be summarily dismissed if the petitioner's allegations are clearly disproven by the record of the criminal proceedings, if the petitioner has not presented evidence making a prima facie case as to each essential element of the claims, or if the petitioner's allegations do not justify relief as a matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281 (2010) ; DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary dismissal of a claim for post-conviction relief is appropriate when the court can conclude, as a matter of law, that the petitioner is not entitled to relief even with all disputed facts construed in the petitioner's favor. For this reason, summary dismissal of a post-conviction petition may be appropriate even when the State does not controvert the petitioner's evidence. See Roman, 125 Idaho at 647, 873 P.2d at 901.

Conversely, if the petition, affidavits, and other evidence supporting the petition allege facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be summarily dismissed. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004) ; Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct.App.2008). If a genuine issue of material fact is presented, an evidentiary hearing must be conducted to resolve the factual issues. Goodwin, 138 Idaho at 272, 61 P.3d at 629.

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, 146 Idaho at 104, 190 P.3d at 923. Over questions of law, we exercise free review. Rhoades, 148 Idaho at 250, 220 P.3d at 1069 ; Downing v. State, 136 Idaho 367, 370, 33 P.3d 841, 844 (Ct.App.2001).

A claim of ineffective assistance of counsel may properly be brought under the Uniform Post–Conviction Procedure Act. Murray, 121 Idaho at 924–25, 828 P.2d at 1329–30. To prevail on an ineffective assistance of counsel claim, the petitioner must show that the attorney's performance was deficient and that the petitioner 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, 686–87 (1984) ; Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct.App.1995). To establish a deficiency, the petitioner 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 petitioner must show a reasonable probability that, but for the attorney's deficient performance, the outcome of the trial would have been different. Id. at 761, 760 P.2d at 1177. Concerning the deficiency of performance component, there is a strong presumption that counsel's performance falls within the wide range of professional assistance. Id. at 760, 760 P.2d at 1176.

A. Hearing Impairment

Ramsey first argues he was constructively denied his right to effective assistance of counsel because his trial counsel, due to a hearing impairment, was unable to hear all the evidence at trial, failed to make knowing and informed objections to inadmissible testimony, and frequently asked witnesses to repeat what they said. Such an impairment, Ramsey maintains, creates a presumption of prejudice. The United States Supreme Court articulated three circumstances that create a presumption of prejudice: (1) the complete denial of counsel; (2) when counsel entirely fails to subject the prosecutor's case to meaningful adversarial testing; and (3) when, although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial. United States v. Cronic, 466 U.S. 648, 659–60, 104 S.Ct. 2039, 2047–48, 80 L.Ed.2d 657, 667–69 (1984).

Ramsey relies on a Ninth Circuit case that concluded, "[W]hen an attorney for a criminal defendant sleeps through a substantial portion of the trial, such conduct is inherently prejudicial and thus no separate showing of prejudice is necessary." Javor v. United States, 724 F.2d 831, 833 (9th Cir.1984). But Javor is distinguishable from the present case. In Ja...