Ricca v. State
| Decision Date | 16 December 1993 |
| Docket Number | No. 19817,19817 |
| Parties | Louis R. RICCA, Petitioner-Appellant, v. STATE of Idaho, Respondent. |
| Court | Idaho Court of Appeals |
Larry EchoHawk, Atty. Gen., Thomas P. Watkins, Deputy Atty. Gen., Boise, for respondent. Thomas P. Watkins, argued.
Louis R. Ricca appeals from the order of the district court summarily dismissing his application for post-conviction relief and denying him an evidentiary hearing on his claims of ineffective assistance of counsel and involuntariness of his guilty plea. Because we conclude that an evidentiary hearing is required on the ineffective assistance claim, we affirm in part, vacate in part and remand to the district court.
At arraignment on April 18, 1988, Ricca pled not guilty to the charge of delivery of cocaine. On June 20, 1988, Ricca entered a plea of guilty to the charge before the district court, which accepted his change of plea. Upon entry of the judgment of conviction, the district court sentenced Ricca to a unified term of fifteen years, with a five-year minimum period of confinement and imposed a $25,000 fine. The sentence was to be served concurrently with the sentence imposed on an unrelated probation violation for which Ricca had received a unified sentence of three years, with a one-year minimum period of confinement and was fined $5,000.
Ricca filed an untimely motion to reduce his sentence under I.C.R. 35. The district court considered the motion on its merits, but denied the motion. Because the motion was filed more than 14 days after the date of entry of the judgment of conviction and sentence, it did not extend the time for filing a direct appeal. Ricca did not appeal from the judgment of conviction and sentence or from the denial of the Rule 35 motion.
On January 18, 1989, Ricca filed an application for post-conviction relief seeking to withdraw his guilty plea to the delivery of cocaine charge and claiming ineffective assistance of counsel. He asserted that his guilty plea was involuntary because he was under the influence of medication at the time he entered his plea. In addition, Ricca contended that his plea was coerced because necessary medical treatment was withheld from him until after he had consented to enter his plea. Ricca also claimed that he was denied the effective assistance of counsel when, in The state moved for summary judgment under I.C. § 19-4906(b), arguing that Ricca had failed to state a claim upon which post-conviction relief could be granted. Following a hearing on the summary judgment motion, the district court granted summary judgment, denying Ricca any relief or an evidentiary hearing.
[124 Idaho 896] spite of his request that a direct appeal be filed from the judgment of conviction, counsel neglected or refused to file an appeal.
In dismissing the application, the district court initially determined that post-conviction relief was not available to Ricca because he had not previously filed a motion to withdraw his guilty plea. Nevertheless, the district court considered the merits of Ricca's claims alleging that his guilty plea was involuntary and concluded that Ricca had failed to present a genuine issue of material fact that would entitle him to relief. The district court further held that Ricca had not established a legitimate claim of ineffective assistance of counsel. Ricca appeals from the summary judgment dismissing his post-conviction application.
Idaho Code § 19-4906(b) provides that the district court may dismiss an application for post-conviction relief unless the application contains allegations which, if proved, would entitle the defendant to the remedy sought. Griffith v. State, 121 Idaho 371, 825 P.2d 94 (Ct.App.1992). Allegations in an application for post-conviction relief must be deemed to be true until those allegations are controverted by the state. King v. State, 114 Idaho 442, 757 P.2d 705 (Ct.App.1988). On review of a dismissal of the post-conviction application, without an evidentiary hearing, we will determine whether a genuine issue of fact exists based on the pleadings, depositions and admissions on file, together with any affidavits on file; moreover, the court will liberally construe the facts in favor of the party opposing the motion, together with all reasonable inferences to be drawn from the evidence in favor of the non-moving party. Bonz v. Sudweeks, 119 Idaho 539, 808 P.2d 876 (1991); Loomis v. City of Hailey, 119 Idaho 434, 807 P.2d 1272 (1991); Mitchell v. Siqueiros, 99 Idaho 396, 398, 582 P.2d 1074, 1076 (1978).
Preliminarily, this Court has recognized that the Uniform Post-Conviction Procedure Act, I.C. §§ 19-4901-19-4911, provides an appropriate mechanism for considering claims of ineffective assistance of counsel and claims that a plea of guilty was accepted in violation of the requirements set forth in I.C.R. 11. Nellsch v. State, 122 Idaho 426, 835 P.2d 661 (Ct.App.1992). See also Gomez v. State, 120 Idaho 632, 818 P.2d 336 (Ct.App.1991) (). The Act is available "to cure fundamental errors occurring at the trial which affect either the jurisdiction of the court or the validity of the judgment, even though these errors could have been raised on appeal." Maxfield v. State, 108 Idaho 493, 499, 700 P.2d 115, 121 (Ct.App.1985), quoting Smith v. State, 94 Idaho 469, 474-75, 491 P.2d 733, 738-39 (1971). The Act, however, cannot be used as a substitute for an appeal, I.C. § 19-4901(b); and any issue which could have been, but was not, raised on direct appeal is forfeited and cannot be considered in a post-conviction proceeding. Murray v. State, 121 Idaho 918, 828 P.2d 1323 (Ct.App.1992).
Ricca alleges in his application for post-conviction relief that his guilty plea was not voluntarily, knowingly or intelligently entered, and, therefore, his conviction and sentence were invalid. Ricca argues that he was under the influence of medication at the entry of his plea and, as a result, did not understand the consequences of his plea. His second challenge to the validity of his plea is that his plea was obtained through coercion, because necessary medical attention was withheld until such time as he signed the consent to plead guilty.
With regard to his claim that his guilty plea was made while he was under the influence of medication, Ricca's affidavit did not specify which drugs he was taking. In response to the state's motion for summary dismissal, Ricca's counsel submitted an affidavit disclosing that Ricca had been receiving a 0.25 mg nightly dose of Halcion as a sleep aid while in jail and that Ricca was on the medication for eighty-six days prior to the entry of his plea. Counsel appended to the affidavit two articles written by novelists, several newspaper reports on the effects of Halcion, and an entry from the 1990 Physician's Desk Reference citing contraindications to the use of Halcion that would affect a person's thought processes.
The state submitted the affidavit of Carl Barbee, M.D., the treating physician who attended Ricca while he was incarcerated in the Blaine County Jail. Doctor Barbee attested to the fact that he had prescribed several medications to Ricca, including .25 mg of Halcion to help Ricca sleep. He denied that the drug as administered would in any way have impaired Ricca's mental condition or his capacity to understand legal proceedings against him.
The transcript of the change of plea hearing indicates Ricca told the district court that he was not under the influence of any drugs "except for medication I take three times a day." Reviewing the transcript and the affidavit before the district court at the post-conviction hearing, we conclude that Ricca failed to allege facts describing the effect of Halcion on him personally, other than to claim that he was under the influence of the drug when he pled guilty. Ricca has provided no competent medical evidence establishing that he is one of the individuals affected by Halcion and in what way he was affected. He failed as well to identify the difficulties that he experienced on the day he entered his plea, which, according to the articles he submitted, were attributable to Halcion. 1
We conclude that Ricca did not raise a genuine issue of material fact regarding the influence of the drug, Halcion, over him. We affirm ...
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