State Of Idaho v. Cook

• Decision Date: 27 August 2010
• Docket Number: Docket No. 36851,No. 611A2,Docket No. 36922,611A2
• Parties: STATE OF IDAHO, Plaintiff-Appellant, v. STEVEN JAMES COOK, Defendant-Respondent.
• Court: Idaho Court of Appeals

STATE OF IDAHO, Plaintiff-Appellant,

v.STEVEN JAMES COOK, Defendant-Respondent.

Docket No. 36851

Docket No. 36922

No. 611A2

Court Of Appeals Of The State Of Idaho

Filed: August 27, 2010

Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for appellant. Jessica M. Lorello argued.

Nevin, Benjamin, McKay & Bartlett LLP, Boise, for respondent. Dennis Benjamin argued.

Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bear Lake County. Hon. David C. Nye, District Judge.

Judgment granting post-conviction relief, order granting relief from judgment in initial post-conviction action, and order reducing sentence, reversed.

LANSING, Chief Judge

Steven James Cook filed a motion asking the district court to suspend the unserved portion of his sentences for nine counts of grand theft by deception so that he could gainemployment and begin paying restitution to his victims. The district court, treating Cook's

claims below partially as an Idaho Rule of Civil Procedure 60(b) motion for relief from the judgment denying a prior action for post-conviction relief, and partially as a successive postconviction petition, granted Cook the requested relief. The State appeals.

I.BACKGROUND

In a prior opinion, this Court described Cook's criminal proceedings as follows:

In October 2002, Cook entered guilty pleas to nine counts of grand theft by deception, Idaho Code Sections 18-2403(2)(a), 18-2407(1)(b), admitting to stealing approximately 1.5 million dollars from nine families. The thefts occurred between September 1996 and May 1999 through a fraudulent securities scheme whereby Cook formed Worldwide Financial, LLC and obtained thousands of dollars from numerous victims by representing that he was licensed and investing their money soundly. In reality, he was only investing some of the money--in a risky venture--and funneling the rest into his personal accounts or back to other investors to effectuate a Ponzi-like scheme. After a sentencing hearing, where Cook's counsel did not call any witnesses, he was sentenced to a unified term of fourteen years, with five years determinate, for count I, to run concurrently with his sentence in a related federal case, followed by eight consecutive unified terms of eight years, with three years determinate, for the remaining counts. He was also ordered to pay $1,467, 577 in restitution. No appeal was filed from the entry of the judgment of conviction.

In April 2003, Cook filed a Rule 35 motion for reduction of sentence. At the hearing, Cook's counsel again did not call any witnesses, but presented to the court a plan for Cook to be employed and begin paying restitution if released. After an opportunity for the parties to submit additional evidence regarding the alleged job offer, the trial court denied Cook's motion on November 4, 2003. Cook did not appeal.

Cook v. State, 145 Idaho 482, 485-86, 180 P.3d 521, 524-25 (Ct. App. 2008) (footnotes omitted).

The procedural history of Cook's post-conviction proceedings is complex and protracted. Cook's post-conviction petition was filed in November of 2004. Id. at 486, 180 P.3d at 525. Cook there alleged, among other things, that his defense counsel had been ineffective for failing to file appeals from the judgment of conviction and from the denial of Cook's Idaho Criminal Rule 35 motion, and was ineffective for failing to call witnesses and present evidence regarding a restitution plan at Cook's sentencing and I.C.R. 35 hearings. Cook, 145 Idaho at 486, 180 P.3d at 525. On September 7, 2006, the district court entered its judgment on Cook's post-conviction petition. It denied relief on Cook's ineffective assistance of counsel claims concerning thesentencing and I.C.R. 35 hearings, but agreed with Cook that counsel had been ineffective for not filing an appeal. Cook, 145 Idaho at 486, 180 P.3d at 525. The district court therefore reentered Cook's judgment of conviction on September 7, 2006, to allow Cook to file a timely appeal. However, though Cook's post-conviction counsel filed an appeal from the partial denial of Cook's post-conviction petition on October 4, 2006, counsel failed to timely appeal from the reentered judgment of conviction. Consequently, the district court again reentered Cook's judgment of conviction on December 13, 2006, pursuant to a stipulation of the parties.¹ Cook then timely appealed, challenging his sentence and the denial of his I.C.R. 35 motion. The appeals from the judgment of conviction and from the judgment in the post-conviction action were consolidated.

In the consolidated appeal, this Court determined that Cook's cumulative consecutive sentences were unreasonably harsh and reduced them to an aggregate term of forty-six years with seventeen years determinate. Cook, 145 Idaho at 489-90, 180 P.3d at 528-29. The district court's disposition of the remaining post-conviction claims was affirmed. Id. at 490-96, 180 P.3d at 529-35. The Court's decision was entered in both cases on March 14, 2008, and a remittitur was issued on April 8, 2008.

While Cook's consolidated appeal was pending, his post-conviction counsel filed a "Motion to Set Aside Judgment Pursuant to IRCP Rule 60(b)" with a caption showing Cook as the plaintiff and the State as the defendant but bearing Cook's criminal case number. Though this motion was originally filed in the district court's criminal case file on June 8, 2007, the district court later deemed it to have been filed in the post-conviction case on that date because the use of the criminal case number on the motion was in error.

Subsequently on February 25, 2009, ² through a third attorney, Cook filed a second I.R.C.P. 60(b) motion to set aside the judgment in the post-conviction case on grounds of new evidence, excusable neglect, "misrepresentation by the Office of the Attorney General in the Court as to what the Victims would have said if allowed to testify at prior proceedings," and "other reasons pursuant to I.R.C.P. Rule 60(b) which are applicable in that the new evidence would allow the victims to receive restitution and to not allow the same would magnify the harm and injury that the victims have incurred." The motion requested that the court suspend the unserved portion of Cook's sentences to allow him to work and pay restitution to his victims. Cook thereafter filed a motion asking the court to treat this second I.R.C.P. 60(b) motion as a successive post-conviction petition. The district court held that this second I.R.C.P. 60(b) motion was timely as it could be treated as an amendment to the I.R.C.P. 60(b) motion filed on June 8, 2007, which was itself timely, and held that it would treat certain claims as successive post-conviction claims. After a hearing, the court granted Cook relief and stated that its decision did

not impact [Cook's] sentencing as imposed by the Court of Appeals. It is a motion regarding his Rule 35 motion, which was a plea for leniency regarding the imposed sentence. Therefore, there is no need to vacate the conviction. There is no need to vacate the sentence. Instead, the Rule 35 motion is now granted....

Pursuant to this decision in the post-conviction proceedings, the district court entered an amended judgment of conviction in Cook's criminal case, suspending the balance of Cook's sentence and placing him on supervised probation for thirty-seven years.

The State appeals both from the amended judgment of conviction and the court's decision on Cook's I.R.C.P. 60(b) motion. On the State's motion, the district court's decisions were stayed pending the disposition of this appeal. The State argues that the district court lacked authority to consider Cook's I.R.C.P. 60(b) motion because it was untimely, that the district court lacked authority to convert Cook's motion to a successive post-conviction petition, and even if the court had authority to do so, such a petition would have been untimely. Furthermore, even if the district court did have authority to consider the merits of Cook's claims, the Stateargues, it erred in granting relief because neither the information concerning Cook's employment opportunity and related restitution plan, nor the contention that the victims would support a viable restitution plan, is new evidence. Additionally, the State contends that Cook failed to show that his two previous attorneys had been ineffective.

II.ANALYSIS

A. Timeliness and Treatment of Certain Claims as Successive Post-Conviction Petition Claims

The parties make numerous arguments and counterarguments regarding the propriety of the district court's determination that Cook's I.R.C.P. 60(b) motions were properly and timely filed and the district court's determination to treat the Rule 60(b) motions, in part, as a successive post-conviction action. We find it unnecessary to address this plethora of procedural issues because, even assuming that Cook's various claims were timely presented as either requests for I.R.C.P. 60(b) relief or as claims in a successive post-conviction action, we conclude the court erred in granting relief on the merits.

B. The District Court Erred in Holding That Cook Was Entitled to Relief

1. Rule 60(b) claims

A party may seek relief from a final judgment based on mistake, surprise, or excusable neglect; newly discovered evidence; fraud; misrepresentation or misconduct; a void or satisfied judgment; or any other reason justifying relief from judgment. I.R.C.P. 60(b); Palmer v. Spain, 138 Idaho 798, 802, 69 P.3d 1059, 1063 (2003); Ross v. State, 141 Idaho 670, 672, 115 P.3d 761, 763 (Ct. App. 2005). These grounds for relief are mutually exclusive "such that a ground for relief asserted, falling fairly under" one of the provisions cannot be granted under another. See Eby v. State, 148 Idaho 731, 736, 228 P.3d 998, 1003 (2010). The moving party must specify the above listed grounds upon which it is entitled to relief from judgment. Palmer, 138 Idaho at 802, 69 P.3d at 1063; First Bank &...