Sanders v. State

• Decision Date: 02 February 1990
• Docket Number: No. 18008,18008
• Citation: 792 P.2d 964,117 Idaho 939
• Parties: Robert W. SANDERS, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

Page 964

792 P.2d 964

117 Idaho 939

Robert W. SANDERS, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 18008.

Court of Appeals of Idaho.

Feb. 2, 1990.

Petition for Review Denied June 20, 1990.

Robert W. Sanders, Boise, pro se.

Jim Jones, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., Boise, for respondent.

PER CURIAM.

This is an appeal from an order denying an application for post-conviction relief. We affirm the order.

Following his plea of guilty to second degree murder, Robert Sanders received an indeterminate life sentence. Three years after the judgment of conviction was entered he filed an application under I.C. § 19-4901 for post-conviction relief. In his application, Sanders alleged that he had received ineffective assistance of counsel when his attorney, a public defender, failed to prosecute a direct appeal from the judgment of conviction. ¹ He sought an appropriate order from the court that would give him a renewed opportunity to appeal from the judgment of conviction. See State v. Dillard, 110 Idaho 834, 718 P.2d 1272 (Ct.App.) (review denied), cert. denied, 479 U.S. 887, 107 S.Ct. 283, 93 L.Ed.2d 258 (1986); Flores v. State, 104 Idaho 191, 657 P.2d 488 (Ct.App.1983).

After an evidentiary hearing, the district court denied relief to Sanders. The court dismissed the application on the ground that Sanders had failed to prove by a preponderance of the evidence that he had requested his attorney to file an appeal.

Our standard of review on an appeal in a post-conviction proceeding is well settled. A post-conviction applicant has the burden of proving the grounds upon which he seeks relief. I.C.R. 57(c); e.g., Tramel v. State, 92 Idaho 643, 448 P.2d 649 (1968). Because post-conviction relief proceedings are civil in nature, we will not disturb a judge's finding of fact unless it is clearly erroneous. I.R.C.P. 52(a); Reeves v. State, 105 Idaho 844, 673 P.2d 444 (Ct.App.1983). On review of an order denying post-conviction relief, the lower court's decision that the burden of proof has not been met by the applicant is entitled to great weight, Larkin v. State, 115 Idaho 72, 764 P.2d 439 (Ct.App.1988), and a finding that the party has failed to prove his claim will not be set aside unless that finding is clearly erroneous. Id.

It is also well settled that where state law allows for direct appeal of a criminal conviction, a defendant has a right to effective assistance of counsel on appeal. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). The determination of whether an appeal should be taken rests solely with the defendant. Gardner v. State, 91 Idaho 909, 912, 435 P.2d 249, 252 (1967). His counsel has no duty to prosecute an appeal in the absence of an affirmative request from the defendant. Id. Where a criminal defendant advises his attorney of his desire to appeal, and the attorney fails to take the necessary steps to file the appeal, the defendant has a basis for a claim that he has been denied the right to effective assistance of counsel. Dillard, supra; Flores, supra. However, "[i]t is implicit in this rule of law that the desire to appeal must have been communicated to counsel or otherwise understood by him." Pinson v. State, 688 S.W.2d 783, 785 (Mo.App.1985); Sampson v. State, 570 S.W.2d 337, 338 (Mo.App.1978). See also Davis v. State, 116 Idaho 401, 775 P.2d 1243 (Ct.App.1989) (review dismissed).

Here, the issue of effective assistance of counsel turns on the determination of a factual question--did Sanders communicate to his attorney the desire to pursue an appeal? On this question, Sanders presented at the post-conviction hearing the testimony of his wife who was present during the sentencing proceeding. She testified to the effect that, at the conclusion of Sanders' sentencing hearing, Sanders turned to his attorney and said "Appeal this." Sanders' wife also testified that in response to Sanders' statement, the attorney nodded his head affirmatively.

The state called the attorney as a witness to provide his version of the events. He testified that he did not remember whether Sanders had mentioned an appeal. He testified that because the choice to appeal lies with the defendant, if a defendant expressed a desire to appeal, the attorney would file a notice of appeal. He further testified that he did not file an appeal in Sanders' case and that he found no notations in a later review of Sanders' file that indicated an appeal should have been taken at Sanders' request. He concluded that "the fact that I didn't file an appeal leads me to believe that he didn't ask me [to]." Another attorney with the public defender's office--the one who handled Sanders' Rule 35 motion--also testified that he found no record or communication from Sanders concerning a direct appeal from the conviction. He testified that when he represented Sanders on the sentence reduction, the question of the status of such an appeal was never broached by Sanders.

The district court summarized the evidence and rejected Sanders' claim, as follows:

In reviewing the entire record, this court can only conclude that Sanders' claim of ineffective counsel has not been proved by a preponderance of the evidence. There is simply no showing that [the attorney's] representation of Sanders was deficient with respect to his failure to file a direct appeal of the sentence. In viewing the testimony and credibility of the witnesses, this court cannot find that the petitioner has established, by a preponderance of the evidence, that a request for a direct appeal of the sentence was ever made to [the attorney]. Even accepting petitioner's testimony that he said "appeal this" to [the attorney] at the conclusion of the sentencing...