Saykhamchone v. State, No. 21024

• Court: Idaho Supreme Court
• Writing for the Court: SILAK; JOHNSON, J., and YOUNG; McDEVITT, C.J., and TROUT
• Citation: 127 Idaho 319,900 P.2d 795
• Docket Number: No. 21024
• Decision Date: 27 July 1995
• Parties: Somphiane SAYKHAMCHONE, Petitioner-Appellant, v. STATE of Idaho, Respondent. Boise, January 1995 Term

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900 P.2d 795 127 Idaho 319 Somphiane SAYKHAMCHONE, Petitioner-Appellant,
v.
STATE of Idaho, Respondent. No. 21024. Supreme Court of Idaho, Boise, January 1995 Term. July 27, 1995.

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[127 Idaho 320] Jonne E. Kohler, Nampa, for appellant.

Alan G. Lance, Atty. Gen., and Myrna A.I. Stahman, Deputy Atty. Gen., argued, Boise, for respondent.

SILAK, Justice.

This is an appeal from the summary dismissal of an application for post-conviction relief which alleged ineffective assistance of counsel. This appeal raises two issues: (1) whether the district erred in dismissing the application without giving the twenty-day notice required under I.C. § 19-4906(b); and (2) whether the district court correctly concluded that the application failed to raise any genuine issues of material fact.

A jury found petitioner Somphiane Saykhamchone (Saykhamchone) guilty of first degree murder for the shooting death of a fellow employee at a dairy. He was sentenced to an indeterminate life sentence, enhanced by a ten-year indeterminate sentence for the use of a firearm in the murder. Saykhamchone appealed only his sentence, alleging it was illegal. The Court of Appeals affirmed in State v. Saykhamchone, 112 Idaho 1128, 739 P.2d 427 (Ct.App.1987).

In May 1992, Saykhamchone filed a pro se petition for post-conviction relief alleging ineffective assistance of counsel and listing numerous deficiencies of his trial attorney. Among other things, Saykhamchone alleged his trial counsel: (1) failed to insure that Saykhamchone had an interpreter able to assist him in understanding the proceedings; (2) failed to advise Saykhamchone about the consequences of testifying at trial; (3) failed to seek suppression of un-Mirandized statements Saykhamchone made to police out of fear that the armed officers would harm him; and (4) failed to challenge biased jurors. Although Saykhamchone did not file an affidavit with his petition, he filed a six-page unverified "statement" which was essentially a narrative describing the crime. The district court appointed an attorney to represent Saykhamchone in the post-conviction proceeding. Saykhamchone thereafter filed an

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[127 Idaho 321] affidavit in support of his application for post-conviction relief.

In April 1993, the state filed its "Answer to Petition for Post-Conviction Relief," wherein the state denied Saykhamchone's allegations of ineffective assistance of counsel, and raised various affirmative defenses. The Answer's prayer for relief asked the court to "[d]ismiss the Petition for Post-Conviction Relief in the above entitled action without further hearing and pursuant to Idaho Code, §§ 19-4901, et. seq." The state filed no pleadings other than its Answer, and never filed or presented orally a motion for summary disposition of the application.

Without giving the parties prior notice, the district court issued an order dismissing Saykhamchone's application in November 1993. Therein, the court declared it had "reviewed the record in the underlying criminal action and is satisfied ... that Petitioner is not entitled to post-conviction relief on the ground of ineffective assistance of counsel." Saykhamchone filed a pro se notice of appeal, and the district court ordered his appointed counsel in the post-conviction proceeding to continue representing Saykhamchone on appeal.

I.

STANDARD OF REVIEW

An application for post-conviction relief is in the nature of a civil proceeding, entirely distinct from the underlying criminal action. Peltier v. State, 119 Idaho 454, 456, 808 P.2d 373, 375 (1991). The Idaho Rules of Civil Procedure apply. State v. Goodrich, 104 Idaho 469, 471, 660 P.2d 934, 936 (1983). If the district court decides to dismiss the application, I.C. § 19-4906(b) requires the court to notify the parties of its intention and give the petitioner an opportunity to respond; failure to do so requires reversal of a judgment denying the application for post-conviction relief. Peltier v. State, 119 Idaho 454, 456-57, 808 P.2d 373, 375-76 (1991); Cherniwchan v. State, 99 Idaho 128, 578 P.2d 244 (1978). However, under I.C. § 19-4906(c), where a party moves to dismiss the application without a hearing, the twenty-day notice is not required. Ivey v. State, 123 Idaho 77, 79, 844 P.2d 706, 708 (1992); State v. Christensen, 102 Idaho 487, 488, 632 P.2d 676, 677 (1981).

In determining whether a motion for summary disposition is properly granted, a court must review the facts in a light most favorable to the petitioner, and determine whether they would entitle petitioner to relief if accepted as true. Ivey, 123 Idaho at 80, 844 P.2d at 709; Parrott v. State, 117 Idaho 272, 274, 787 P.2d 258, 260 (1990). A court is required to accept the petitioner's unrebutted allegations as true, but need not accept the petitioner's conclusions. Ivey, supra; Kraft v. State, 100 Idaho 671, 674, 603 P.2d 1005, 1008 (1979). The standard to be applied to a trial court's determination that no material issue of fact exists is the same type of determination as in a summary judgment proceeding. Ivey, supra; State v. Christensen, 102 Idaho at 489, 632 P.2d at 678.

II.

NOTICE OF INTENT TO DISMISS

Saykhamchone argues that the district court erred in dismissing his application without giving him the twenty-day notice required under I.C. § 19-4906(b). The state responds that no twenty-day notice was required because the district court dismissed the application on the state's motion under § 19-4906(c), and not on the court's own initiative. Sections 19-4906(b) & (c) provide in pertinent part:

(b) When a court is satisfied, on the basis of the application, the...