Smith v. State

Decision Date08 December 1971
Docket NumberNo. 10913,10913
Citation94 Idaho 469,491 P.2d 733
PartiesGary L. SMITH, Plaintiff-Appellant, v. STATE of Idaho, Defendant-Respondent.
CourtIdaho Supreme Court

William W. Becker, Pocatello, for plaintiff-appellant.

W. Anthony Park, Atty. Gen., Martin R. Ward, Deputy Atty. Gen., James G. Reid, Asst. Atty. Gen., Boise, and Hugh C. Maguire, Pros. Atty., Pocatello, for defendant-respondent.


On August 3, 1970, Gary L. Smith (appellant filed a petition for post-conviction relief from a forgery conviction in the Bannock County District (then the Fifth Judicial District) Court on July 28, 1959. Smith has fully served the sentence imposed as a result of the conviction challenged here. The verified petition, prepared by Smith pro se, recites that he is currently serving an eight-year sentence for burglary in the Nevada State Penitentiary; that because of the 1959 Idaho felony conviction, he is ineligible for parole under a Nevada statute 1; and that the 1959 Idaho conviction should be set aside on constitutional grounds.

The petition filed in this case alleges that the 1959 Idaho conviction violated the due process clause of the Fourteenth Amendment to the United States Constitution for several reasons: denial of a motion for a twenty-four hour postponement to allow an essential out-of-state witness to arrive at the trial; a wrongful waiver of a preliminary hearing; a resultant denial of counsel at a 'critical stage' of the proceedings; improper admission of evidence of a juvenile crime; refusal to instruct the jury on Smith's principle defense theory; and failure to advise him of his appellate rights.

In response to the petition, the prosecuting attorney for Bannock County filed a motion to dismiss, asserting several grounds for dismissal. Counsel for the petitioner was then appointed. On December 29, 1970, the court issues an order stating that on the basis of the application, the motion to dismiss, and the record before it, no grounds for relief exist; in this order, the court indicated that on January 20, 1971, it would dismiss the application; and on that date an order of dismissal was entered. Neither of the court's orders contains the specific reasons for granting the motion to dismiss. 2


Even though Smith has fully served the sentence given him on the conviction here challenged, the questions raised in his petition for post-conviction relief are not moot. 3 In Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 1900, 20 L.Ed.2d 917 (1968), the United States Supreme Court ruled that 'a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.' (Emphasis added.) The case at bar certainly meets this test. Without pausing to canvass the possibilities in detail, we note that Nevada expressly provides by statute 4 that Smith's conviction may make him ineligible for parole. It has been recognized that adverse effects on an inmate's eligibility for parole are within the class of collateral legal consequences which will remove a case from the limbo of mootness. United States ex rel. Urbano v. Yeager, 323 F.Supp. 774 (D.N.J.1971); State v. Urbano, 105 Ariz. 13, 457 P.2d 343 (1969), cert. denied, 397 U.S. 948, 90 S.Ct. 968, 25 L.Ed.2d 129 (1970). In both of the cited cases, it was held that the question of whether the defendant suffered a valid 1948 Arizona conviction was not moot, because his eligibility for parole in New Jersey was adversely affected by the Arizona conviction.

There are doubtless other collateral consequences. Moreover, that Smith might have 'quite a number' 5 of convictions on his record is not relevant. Sibron v. New York, supra; Hewett v. North Carolina, 415 F.2d 1316, 1322 (4th Cir. 1969). Sibron was a multiple offender (392 U.S. at 56, 88 S.Ct. at 1889), and so were the appellants in two other Supreme Court cases 6 where the claim of mootness was rejected. We agree with what the Supreme Court said in Sibron:

'(I)t would be impossible for us to say that he had no interest in beginning the process of redemption with the particular case sought to be adjudicated. We cannot foretell what opportunities might present themselves in the future for the removal of other convictions from an individuals' record.' 392 U.S. at 56, 88 S.Ct. at 1899.

The state contends that post-conviction relief may not be invoked to secure judicial determination of questions which, even if determined in favor of the petitioner, could not effect his immediate release from custody, citing United States ex rel. Chilcote v. Maroney, 246 F.Supp. 607 (W.D.Pa.1965), wherein the court stated (at 609) that 'habeas corpus will not be available if the vacating of the invalid sentences will only make the relator eligible for parole on the valid sentences.' In light of those Supreme Court decisions discussed above, which are more recent than the district court case cited, this cannot be regarded as a correct statement of the law. The standard set down by Sibron is whether there is any possibility of collateral legal consequences, not whether granting the relief requested would effect the petitioner's immediate release from custody. Even though a petitioner has been unconditionally released from custody, his cause is not moot where disabilities and burdens may flow from the challenged conviction. Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); cf. Hewett v. North Carolina, supra. Even though the granting of relief probably will not result in petitioner's immediate release, his case is not moot where the challenged conviction adversely affects his eligibility for parole. United States ex rel. Urbano v. Yeager, supra. In United States ex rel. Burke v. Mancusi, 276 F.Supp. 148 (E.D.N.Y.1967), the district court anticipated the Supreme Court's current position and held that post-conviction relief will lie where petitioner's opportunity for parole under an admittedly valid conviction is thwarted by the existence of another conviction of disputed validity.

While the determination of this point is controlled by the decisions discussed above, it should also be noted that none of the concededly important policies behind the rule against entertaining moot controversies would be served by a dismissal in this case. See Sibron v. New York, supra, at 57, 88 S.Ct. at 1889. See generally Marchand v. Director, U. S. Probation Office, 421 F.2d 331 (1st Cir. 1970).


Until the allegations in an application for post-conviction relief are in some manner controverted by the state, they must be deemed to be true, no matter how incredible they may appear to the trial court or to this Court. Tramel v. State, 92 Idaho 643, 448 P.2d 649 (1968). A motion to dismiss, unsupported by affidavits or depositions, does not controvert the facts alleged in the petition. Ibid. If, however, the allegations, though uncontroverted, would not entitle the applicant to relief even if proved, it is not error to dismiss the application without affording an evidentiary hearing. Clark v. State, 92 Idaho 827, 452 P.2d 54 (1969).

The issue on an appeal from a dismissal, then, is whether the petition alleges facts which, if true, would entitle the petitioner to relief.

In his petition, Smith alleges the following facts in support of his contentions that (1) he was deprived of his right to appointed counsel at preliminary hearing, and (2) his waiver 7 of preliminary hearing was constitutionally unsound because it was made without advice of counsel 8 and in order to be given an attorney:

'When petitioner was arraigned in Justice Court, he requested an attorney be appointed him as he was without funds with which to hire an attorney to represent him. The Justice Court informed petitioner that only the district court could appoint an indigent defendant counsel and if petitioner wanted an attorney he would have to waive preliminary hearing, be bound over to the district court and ask that court to appoint him counsel.' Transcript, p. 5.

At the time Smith was arrested, the committing magistrate was not authorized to appoint counsel to represent him. Freeman v. State, 87 Idaho 170, 392 P.2d 542 (1964); Cobas v. Clapp, 79 Idaho 419, 319 P.2d 475 (1957), cert. denied, 356 U.S. 941, 78 S.Ct. 785, 2 L.Ed.2d 816 (1958); State v. Calkins, 63 Idaho 314, 120 P.2d 253 (1941). In Calkins, defendant was brought before the committing magistrate, who informed him that he was entitled to a preliminary examination and also to an attorney; defendant thereupon requested an attorney; the magistrate then informed him that he was not entitled to have an attorney appointed for him at his preliminary examination, but that he would have to wait until said action reached the district court, at which time the court would appoint an attorney for him. Upon these facts, the court held that no statutory or constitutional right had been denied.

In Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), the United States Supreme Court held that a preliminary hearing-which is not a required step in an Alabama prosecution and the sole purposes of which are to determine whether there is sufficient evidence against the accused to warrant prosecuting his case to the grand jury and, if so, to fix bail if the offense is bailable-is a 'critical stage' of the proceedings, thus requiring the appointment of counsel for indigents under the Sixth and Fourteehtn Amendments. 9 A defendant denied counsel at this stage is entitled to a new trial unless 'harmless error' can be shown. The question for decision here is whether the rule of Coleman v. Alabama is to be applied retroactively. We hold that the rule is to be applied prospectively only. 10 Therefore, since petitioner's alleged denial of counsel took place more than ten years before Coleman was decided, he is not entitled to relief on this ground.

In his petition, Smith contends that he was...

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