State v. Ayala

• Decision Date: 31 December 1996
• Docket Number: Nos. 22186,22050,s. 22186
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Javier AYALA, Defendant-Appellant. Javier AYALA, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

Page 174

935 P.2d 174

129 Idaho 911

STATE of Idaho, Plaintiff-Respondent, v. Javier AYALA, Defendant-Appellant.

Javier AYALA, Petitioner-Appellant, v. STATE of Idaho, Respondent.

Nos. 22186, 22050.

Court of Appeals of Idaho.

Dec. 31, 1996.

Rehearing Denied Feb. 24, 1997.

Petition for Review Denied,

April 24, 1997.

Van G. Bishop, Canyon County Public Defender, Nampa, for appellant.

Alan G. Lance, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent.

WALTERS, Chief Judge.

In this consolidated appeal, Javier Ayala seeks relief on his post-conviction claims, which were denied by the district court, and relief from errors allegedly committed during his criminal trial. For the reasons explained below, we affirm the judgment of conviction and the denial of post-conviction relief.

I. FACTUAL AND PROCEDURAL BACKGROUND

Ayala was arrested on February 27, 1993, for possession of a controlled substance with intent to deliver when approximately one ounce (25.2 grams) of methamphetamine was seized from the car that he had been driving and that he had parked at a friend's house in Caldwell, Idaho. The drugs were discovered by the police in plain view in the vehicle while the police were executing a search warrant at the residence. When he was asked by Officer Deulen who the drugs in the car belonged to, Ayala replied "It's mine." At the time the drugs were discovered, the car was parked within 1000 feet of the Van Buren elementary school in Caldwell. A jury found Ayala guilty of possession of a controlled substance with intent to deliver, pursuant to I.C. § 37-2732(a)(1)(A). Immediately thereafter, in a bench trial, the court found as a sentencing aggravation factor under I.C. § 37-2739B(b)(2) that Ayala's offense was committed within 1000 feet of a school. For the substantive charge, the district court sentenced Ayala to a unified term of five years, with a minimum fixed term of sixty days to be followed by an indeterminate term of four years and ten months. The district court then imposed a consecutive, minimum fixed term of five years, because of its finding of the aggravating factor enumerated in I.C. § 37-2739B(b)(2).

Ayala filed a direct appeal from the judgment of conviction and sentence. He also filed an appeal from the subsequent denial of an I.C.R. 35 motion. Both of those appeals, however, were dismissed upon appellate counsel's failure to timely submit an appellant's brief. ¹ This conduct, asserted Ayala in his application for post-conviction relief filed on November 29, 1994, constituted ineffective assistance of counsel. Ayala also asserted other claims, including allegations of ineffective assistance of counsel regarding the representation he had received at trial.

The district court denied all of Ayala's post-conviction claims on February 28, 1995, except for the claim that Ayala had been denied the effective assistance of counsel on appeal. After an evidentiary hearing on the issue, the district court concluded that appellate counsel was ineffective and that Ayala was entitled to post-conviction relief. Ayala's judgment of conviction was entered anew to give Ayala the right to appeal from his conviction. ² Ayala duly appealed from the denial of his post-conviction claims and from the judgment of conviction.

II. DISCUSSION

A. Ineffective Assistance Claims

To prevail on an ineffective assistance of counsel claim, the applicant must show that the attorney's performance was deficient and that the applicant was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct.App.1995); Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct.App.1990). 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 Idaho 758, 760, 760 P.2d 1174, 1176 (1988); Russell, 118 Idaho at 67, 794 P.2d at 656. 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. Aragon, 114 Idaho at 761, 760 P.2d at 1177; Russell, 118 Idaho at 67, 794 P.2d at 656.

B. Post-conviction Claims

Ayala asserts that he is entitled to a reversal of his conviction due to ineffective assistance of his trial counsel. He argues that his post-conviction claims, alleging that counsel (a) failed to file a pretrial motion to suppress and (b) failed, at sentencing, to challenge the imposition of a fixed minimum term under I.C. § 37-2739B on the basis of the statute's unconstitutionality, should not have been denied by the district court without a hearing.

The issue on appeal from the summary dismissal of an application for post-conviction relief is whether the application alleges facts which, if true, are sufficient to entitle the applicant to relief. Heartfelt v. State, 125 Idaho 424, 871 P.2d 841 (Ct.App.1994). The reviewing court examines the entire record and construes all factual allegations contained in the application in favor of the applicant to determine if a genuine issue of material fact exists which, if resolved in the applicant's favor, would entitle him to the requested relief. Dunlap v. State, 126 Idaho 901, 894 P.2d 134 (Ct.App.1995). Although the applicant's uncontroverted factual allegations are assumed to be true, we do not give evidentiary value to mere conclusory allegations that are unsupported by admissible evidence. Phillips v. State, 108 Idaho 405, 407, 700 P.2d 27, 29 (1985); Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct.App.1994). The application is subject to dismissal under I.C. § 19-4906 unless it presents, or is accompanied by, admissible evidence supporting the allegations. Medrano v. State, 127 Idaho 639, 903 P.2d 1336 (Ct.App.1995).

First, Ayala alleged that he would have prevailed upon the merits of an I.C.R. 12 motion to suppress the evidence obtained in the search of the car he had parked at his friend's residence. However, nowhere in his application or supporting affidavits did Ayala present evidence to establish how the search was unreasonable, or otherwise illegal, so as to justify suppression of the evidence derived therefrom. On appeal, Ayala has made a detailed argument that the vehicle search was unlawful based upon the testimony of witnesses at the preliminary hearing and trial. However, none of this evidence or argument was presented to the district court. Without the required factual support, the district court could not reasonably consider the probability of success of the motion in question in determining whether the attorney's failure to file the motion constituted incompetent performance. See Huck v. State, 124 Idaho 155, 159, 857 P.2d 634, 638 (Ct.App.1993). Furthermore, bare or conclusory allegations, unsubstantiated by any fact, are inadequate to entitle an applicant to an evidentiary hearing. King v. State, 114 Idaho 442, 757 P.2d 705 (Ct.App.1988). We therefore uphold the district court's decision to deny relief on the claim of ineffective assistance with respect to the suppression issue.

Next, Ayala claimed that his counsel should have objected to the minimum fixed term of five years imposed by the district court upon its finding that Ayala committed a drug offense within 1000 feet of a school. Ayala asserted that the sentence was imposed without notice in violation of his due process rights and pursuant to a statute, I.C. § 37-2739B, which he argued was unconstitutional. These same claims had been decided adversely by the district court on Ayala's I.C.R. 35 motion, and as such could not properly be the basis for the relief under the Post-conviction Procedure Act. I.C. § 19-4901(b); Lake v. State, 126 Idaho 333, 882 P.2d 988 (Ct.App.1994).

In sum, Ayala's allegations failed to frame a genuine issue of material fact. Therefore, summary dismissal of his post-conviction application, as authorized by I.C. § 19-4906(b), was appropriate. The additional claims that Ayala tried to raise through a motion to reconsider were never noticed for hearing and, consequently, were not ruled on by the district court in order to bring those claims within the scope of our review. See State v. Fisher, 123 Idaho 481, 485, 849 P.2d 942, 946 (1993).

C. Direct Appeal Claims

Ayala raises several issues on direct appeal that may be addressed summarily. Rindlisbaker v. Wilson, 95 Idaho 752, 755, 519 P.2d 421, 424 (1974); Benson v. Brady, 73 Idaho 553, 255 P.2d 710 (1953). For instance, Ayala asserts he was denied a fair trial by counsel's failure (a) to investigate and discover witnesses; (b) to obtain police reports and transcripts of related proceedings which could have been used to impeach witnesses; (c) to subpoena officer Smith as a hostile witness; and (d) to research the applicable law. From our review of the trial proceedings, however, we find no support in the record for any of these claims. Accordingly, they need not be discussed further.

Next, Ayala claims that his rights were impaired when his attorney failed to request a presentence investigation report (PSI). In this regard, the record shows that the subject of whether a PSI should be prepared was discussed in open court by the district judge with Ayala and his counsel. It was represented to the court that Ayala had but one prior conviction. The judge also divulged the sentence he expected to impose. The court revealed its conclusion that it was obligated to impose a mandatory determinate sentence of five years, to be served consecutively to the minimum period of confinement pronounced on a unified sentence for possession of a controlled substance with intent to deliver within the specified proximity to a school, under I.C. § 37-2739B. The court also noted that although probation was not to be granted in light of Ayala's apparent prior record and the...