Schoger v. State, Docket No. 33976 (Idaho App. 8/26/2008)
| Decision Date | 26 August 2008 |
| Docket Number | Docket No. 33976. |
| Parties | SHEY MARIE SCHOGER, Petitioner-Appellant, v. STATE OF IDAHO, Respondent. |
| Court | Idaho Court of Appeals |
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Joel D. Horton, District Judge.
Order summarily dismissing application for post-conviction relief, affirmed in part, reversed in part, and remanded.
Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for appellant. Dennis A. Benjamin argued.
Hon. Lawrence G. Wasden, Attorney General; Jennifer Birkin, Deputy Attorney General, Boise, for respondent. Jennifer Birkin argued.
Shey Marie Schoger appeals from the district court's order summarily dismissing her application for post-conviction relief. Specifically, Schoger asserts that she raised a genuine issue of material fact as to whether her trial counsel provided ineffective assistance in preparing her to plead guilty, whether the district court erred in rejecting her guilty plea, and whether her appellate counsel provided ineffective assistance in failing to challenge the district court's rejection of her guilty plea. For the reasons set forth below, we affirm in part, reverse in part, and remand for further proceedings.
The police executed a search warrant for the residence of Schoger and her boyfriend. Based on the state's evidence at Schoger's trial, the police found substantial quantities of illegal drugs and drug paraphernalia in the master bedroom of the residence, including over 1,000 grams of methamphetamine in different locations and many plastic baggies of psilocybin mushrooms in a briefcase. Police also searched a detached garage and found substantial quantities of marijuana. Additionally, the police searched Schoger's vehicle when she arrived during execution of the warrant and found that Schoger's purse contained psilocybin mushrooms and approximately 27 grams of methamphetamine.1 The state charged Schoger with trafficking in methamphetamine in an amount of 400 grams or more, I.C. §37-2732B(a)(4); possession of marijuana with intent to deliver, I.C. § 37-2732(a); and possession of psilocybin with intent to deliver, I.C. § 37-2732(a). Schoger filed a motion to suppress, which the district court denied.
The parties reached a plea agreement and presented it to the district court. Pursuant to the agreement, Schoger would plead guilty to an amended charge of trafficking in methamphetamine in the amount of 200 to 400 grams. In exchange, the state would dismiss the remaining charges and recommend the mandatory minimum fine of $15,000, and the mandatory minimum sentence of five years, to be followed by an unspecified indeterminate term.
After a brief colloquy with Schoger, the district court determined that Schoger's plea was voluntary and that she committed the crime of trafficking in an amount between 200 and 400 grams, but the district court indicated that it wanted to ask "a couple follow-up questions." The district court questioned Schoger regarding her possession of the methamphetamine. Schoger stated that she had 56 grams of methamphetamine on her person. Schoger also indicated that there was more than 200 grams of methamphetamine in the bedroom of her residence. The district court asked if Schoger had the intention to exercise control over the methamphetamine in the bedroom and, after Schoger conferred with counsel, counsel stated:
Judge, with regard to the methamphetamine that was in the house, primarily [Schoger's boyfriend] was the person that was handling that methamphetamine. Ms. Schoger indicates that he would basically keep it hidden from Ms. Schoger. However, that she did reside in the residence, and we strongly believe that the state is going to be able to prove constructive possession if this matter does proceed to trial.
And so with regard to the quantity that is within the house, Ms. Schoger admits to constructively possessing that and would ask the court to continue to proceed forward with her plea in terms of 200 grams or more.
The district court then commented that it had asked the follow-up questions because it noticed some reticence on Schoger's part and that it was nervous to see Schoger looking to counsel for answers. The district court conducted the following colloquy:
The district court then refused to accept the guilty plea. Defense counsel asked if the district court would accept the plea as an Alford2 plea, and the district court indicated that it would not. Subsequently at the same hearing, counsel informed the district court that Schoger had "reiterated a desire to plead guilty to the charge, to admit to all the facts." The district court reconfirmed its position that it was uncomfortable accepting Schoger's guilty plea and rejected Schoger's renewed attempt to plead guilty to the amended charge.
The case proceeded to trial on the original charges. At the close of the state's evidence, Schoger moved for a judgment of acquittal. The district court granted Schoger's motion as to possession of marijuana with intent to deliver, but denied the motion as to the remaining charges. The jury found Schoger guilty of trafficking in methamphetamine in an amount of 400 grams or more and of possession of psilocybin with intent to deliver. Schoger renewed her motion for judgment of acquittal for trafficking in methamphetamine. The district court again denied the motion. The district court sentenced Schoger to fifteen years, with a minimum period of confinement of ten years, for trafficking in methamphetamine and 219 days for possession of psilocybin, with credit for 219 days that she served in the county jail during the criminal proceedings. The district court also imposed a fine of $25,000. Schoger appealed, challenging only the reasonableness of her sentence. This Court affirmed the sentence in an unpublished opinion. State v. Schoger, Docket No. 31407 (Ct. App. Mar. 15, 2006).
Schoger filed a pro se application for post-conviction relief wherein she alleged ineffective assistance of trial counsel for failure to explain the elements of possession prior to her attempt to plead guilty. The district court appointed post-conviction counsel, and Schoger filed an amended application with the assistance of counsel. The amended application set forth a claim of ineffective assistance of trial counsel substantially similar to that in the initial application. Additionally, Schoger alleged that the district court erred in rejecting the guilty plea and appellate counsel provided ineffective assistance by failing to challenge the district court's rejection of the guilty plea. The state filed an answer and a motion for summary dismissal. After a hearing on the state's motion, the district court accepted additional briefing. The district court then issued a decision ruling that the state was entitled to summary dismissal and, twenty days later, issued an order summarily dismissing Schoger's amended application. Schoger appeals.
An application for post-conviction relief initiates a proceeding that is civil in nature. State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct. App. 1992). Like a plaintiff in a civil action, the applicant must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. I.C. § 19-4907; Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). An application for post-conviction relief differs from a complaint in an ordinary civil action. An application 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, an application for post-conviction relief must be verified with respect to facts within the personal knowledge of the applicant, and affidavits, records or other evidence supporting its allegations must be attached, or the application must state why such supporting evidence is not included with the application. I.C. § 19-4903. In other words, the application must present or be accompanied by admissible evidence supporting its allegations, or the application will be subject to dismissal.
Idaho Code Section 19-4906 authorizes summary dismissal of an application for post-conviction relief, either pursuant to motion of a party or upon the court's own initiative. Summary dismissal of an application pursuant to I.C. § 19-4906 is the procedural equivalent of summary judgment under I.R.C.P. 56. Summary dismissal is permissible only when the applicant's evidence has raised no genuine issue of material fact that, if resolved in the applicant's favor, would entitle the applicant to the requested relief. If such a factual issue is presented, an evidentiary hearing must be conducted. Gonzales v. State, 120 Idaho 759, 763, 819 P.2d 1159, 1163 (Ct. App. 1991); Hoover v. State, 114 Idaho 145, 146, 754 P.2d 458, 459 (Ct. App. 1988); Ramirez v. State, 113 Idaho 87, 89, 741 P.2d 374, 376 (Ct. App. 1987). Summary dismissal of an application for post-conviction relief may be appropriate, however, even where the state does not controvert the applicant's evidence because the court is not required to accept either the applicant's mere conclusory allegations, unsupported by admissible evidence, or the applicant'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 (...
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