Smith v. State
| Decision Date | 14 November 2011 |
| Docket Number | Docket No. 37819,2011 Unpublished Opinion No. 699 |
| Parties | DANA LYDELL SMITH, Petitioner-Appellant, v. STATE OF IDAHO, Respondent. |
| Court | Idaho Court of Appeals |
Stephen W. Kenyon, Clerk
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Minidoka County. Hon. Michael R. Crabtree, District Judge.
Order dismissing application for post-conviction relief, affirmed
Molly J. Huskey, State Appellate Public Defender; Diane M. Walker, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.
Dana Lydell Smith appeals from the district court's summary dismissal of his application for post-conviction relief. We affirm.
Smith was convicted of grand theft for breaking into a car dealership and stealing two cars. He appealed and in an unpublished decision, this Court affirmed his conviction. State v. Smith, Docket Nos. 35216/35604 (Ct. App. May 20, 2009) (unpublished). After his direct appeal, Smith filed an application for post-conviction relief, asserting several claims of ineffective assistance of counsel. The State filed a motion for summary dismissal, which the district court granted. Smith appeals.
An application for post-conviction relief initiates a civil, rather than criminal, proceeding, governed by the Idaho Rules of Civil Procedure. State v. Yakovac, 145 Idaho 437, 443, 180 P.3d 476, 482 (2008); see also Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642, 646 (2008). Like the 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; Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002). "An application 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) (quoting Goodwin, 138 Idaho at 271, 61 P.3d at 628)). The 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). State v. Payne, 146 Idaho 548, 560, 199 P.3d 123, 135 (2008); Goodwin, 138 Idaho at 271, 61 P.3d at 628. The application 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 § 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 is the procedural equivalent of summary judgment under I.R.C.P. 56. "A claim for post-conviction relief will be subject to summary dismissal . . . if the applicant has not presented evidence making a prima facie case as to each essential element of the claims upon which the applicant bears the burden of proof." DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009) (quoting Berg v. State, 131 Idaho 517, 518, 960 P.2d 738, 739 (1998)). Thus, summary dismissal is permissible 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. Payne, 146 Idaho at 561, 199 P.3d at 136; Goodwin, 138 Idaho at 272, 61 P.3d at 629. 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. Payne, 146 Idaho at 561, 199 P.3d at 136; Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994).
"When reviewing a district court's order of summary dismissal in a post-conviction relief proceeding, we apply the same standard as that applied by the district court." Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925, 929 (2010). On review of dismissal of a post-conviction relief application without an evidentiary hearing, we determine whether a genuine issue of material fact exists based on the pleadings, depositions, and admissions together with any affidavits on file. Rhoades v. State, 148 Idaho 247, 220 P.3d 1066 (2009); Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct. App. 1993). However, "while the underlying facts must be regarded as true, the petitioner's conclusions need not be so accepted." Rhoades, 148 Idaho at 250, 220 P.3d at 1069 (quoting Phillips v. State, 108 Idaho 405, 407, 700 P.2d 27, 29 (1985)); see also Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). As the trial court rather than a jury will be the trier of fact in the event of an evidentiary hearing, summary dismissal is appropriate where the evidentiary facts are not disputed, despite the possibility of conflicting inferences to be drawn from the facts, for the court alone will be responsible for resolving the conflict between those inferences. Yakovac, 145 Idaho at 444, 180 P.3d at 483; Hayes, 146 Idaho at 355, 195 P.3d at 714. That is, the judge in a post-conviction action is not constrained to draw inferences in favor of the party opposing the motion for summary disposition, but rather is free to arrive at the most probable inferences to be drawn from uncontroverted evidentiary facts. Id.
Smith raises several issues in his application for post-conviction relief, all based upon assertions of ineffective assistance of counsel. A claim of ineffective assistance of counsel may properly be brought under the Uniform Post-Conviction Procedure Act. Murray v. State, 121 Idaho 918, 924-25, 828 P.2d 1323, 1329-30 (Ct. App. 1992). To prevail on an ineffective assistance of counsel claim, the defendant must show that the attorney's performance was deficient and that the defendant was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct. App. 1995). To establish a deficiency, the applicant has the burden of showing that the attorney's representation fell below an objective standard of reasonableness. Aragon v. State, 114 Idaho758, 760, 760 P.2d 1174, 1176 (1988). To establish prejudice, the applicant 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. This Court has long adhered to the proposition that tactical or strategic decisions of trial counsel will not be second-guessed on appeal unless those decisions are based on inadequate preparation, ignorance of relevant law, or other shortcomings capable of objective evaluation. Howard v. State, 126 Idaho 231, 233, 880 P.2d 261, 263 (Ct. App. 1994).
Smith claims that he presented enough evidence to create a genuine issue of material fact as to whether he received ineffective assistance of counsel because his attorney: (1) failed to file a motion to suppress two witness identifications; (2) failed to secure an expert witness to provide expert opinion regarding his mental impairment; (3) failed to file a motion to suppress Smith's statements to Utah law enforcement officials; and (4) failed to file a motion for a mistrial. He further claims that a genuine issue of material fact exists as to whether he received ineffective assistance of counsel because his attorney had a conflict of interest. Therefore, Smith argues the district court erred when it summarily dismissed Smith's application.
Smith contends that he presented evidence sufficient to raise a genuine issue of material fact as to whether he received ineffective assistance of counsel when his attorney failed to file a pretrial motion to suppress witness identifications presented at trial. The State argues that he failed to present any admissible evidence supporting his claim. Smith's argument fails because he failed to provide evidence of deficient performance or prejudice to support his position beyond bare and conclusory allegations.
Neither the trial transcript nor Smith's petition bears out any facts that show deficient performance on defense counsel's part regarding the witness identifications. While Smith's application contains conclusory statements that the police procedures used to identify him were "suggestive," nothing in the record supports his assertion. Furthermore, Smith fails to address why a pretrial motion to suppress would have been any more effective than the objection counsel offered at trial, except to say that "had Mr. Smith's attorney filed the motion prior to trial, he could have been successful on precluding the in-court identification." Smith's application and the trial transcript contain no other evidence to support such an allegation.
Even if Smith had provided facts showing a pretrial motion to suppress would have been successful, it does not necessarily follow that counsel's actions were the product of "inadequate preparation, ignorance of relevant law, or other shortcomings capable of objective evaluation." Howard, 126 Idaho at 233, 880 P.2d at 263. Counsel objected at trial to the introduction of the photographic lineups and related testimony prior to their...
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