State v. Dillard
| Decision Date | 07 May 1986 |
| Docket Number | No. 15716,15716 |
| Citation | 110 Idaho 834,718 P.2d 1272 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Landis DILLARD, Jr., Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Mark L. Clark, Nampa, for defendant-appellant.
Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for plaintiff-respondent.
ON DENIAL OF PETITION FOR REHEARING
This Opinion Supercedes The Prior Opinion Issued February 3, 1986, Which is Withdrawn.
This is an appeal from a judgment of conviction for first degree murder and for first degree arson. The appellant, Landis Dillard, Jr., contends he was denied his right to a speedy trial and that he was deprived of effective assistance of counsel and due process when his trial attorney failed to timely file an appeal. 1 The state contends Dillard's appeal is jurisdictionally defective and should be dismissed. We affirm the judgment of conviction.
This case comes to us with the following background. In March 1978, a petition under the Youth Rehabilitation Act, I.C. §§ 16-1801 to -1845, was filed against Dillard, while he was a minor under the age of eighteen, alleging that he had murdered one Ruth Madsen. Apparently, arson occurred in an attempt to cover up the murder. The state sought waiver of Dillard's juvenile status, so he could be charged and tried as an adult. Dillard resisted the waiver adjudication and the proceeding wound its way through the lower courts to the Idaho Supreme Court. In February 1981, the Idaho Supreme Court upheld a determination by the district court that Dillard should be tried as an adult. Dillard v. State, 101 Idaho 917, 623 P.2d 1294 (1981). Thus, an information was filed on March 20, 1981, charging Dillard with first degree murder and with first degree arson. Trial was held in December, 1981, and the jury returned verdicts of guilty on both counts. A judgment of conviction was entered on April 30, 1982. Dillard received an indeterminate life sentence for the homicide and a concurrent ten-year indeterminate sentence for arson.
In August 1984, Dillard filed, pro se, an amended application for post-conviction relief. He alleged that he had been denied due process when his court-appointed trial attorney failed to appeal from the judgment of conviction, after Dillard had requested that an appeal be taken. The district court granted relief to Dillard by vacating the April 1982 judgment and sentences, and by re-entering the judgment of conviction and sentences effective August 29, 1984 "so that [he] may perfect a timely appeal from his convictions for Murder and Arson." The district court appointed new counsel to represent Dillard and a notice of appeal from the judgment of conviction was thereafter filed on Dillard's behalf.
Before addressing Dillard's contentions that he was denied his right to a speedy trial and to effective assistance of counsel, we will discuss the state's threshold argument that this appeal is jurisdictionally defective. The state has not appealed from the disposition made by the district court on Dillard's post-conviction application. However, the state urges that Dillard's right to appeal was improperly revived by the district court. The state directs our attention to the order entered by the district court in response to Dillard's application for post-conviction relief. The ultimate disposition made by the court was to dismiss the application. The state argues that because the district court dismissed the application the court was without jurisdiction or authority to vacate the previously entered judgment of conviction and sentences for the sole purpose of reinstating Dillard's right to a direct appeal of his convictions.
We disagree. The order included a memorandum decision disclosing the court's rationale for the order. When reviewed in its entirety, the order clearly shows that the court granted Dillard appropriate relief on his application. The order recites:
Idaho's Uniform Post-Conviction Act, I.C. § 19-4907, provides in pertinent part: "If the court finds in favor of the applicant, it shall enter an appropriate order with respect to the conviction or sentence in the former proceedings, and any supplementary orders as to rearraignment, retrial, custody, bail, discharge, correction of sentence, or other matters that may be necessary and proper." (emphasis [added by district judge].
The Court has consulted with the Prosecuting Attorney and defense counsel and finds that no appeal was in fact filed and no cause can be shown for an appeal not being filed. The Court accordingly follows the opinion of the Idaho Court of Appeals in the case of Gilbert Flores v. The State of Idaho, 104 Idaho 191 , and the Virginia case of Rhodes v. Leverette, , 239 S.E.2d 136, and hereby Orders that the Judgment and sentence imposed in Canyon County Case Number C-5034 on the the 30th day of April, 1982, be vacated. The Judgment of Conviction and sentence is re-entered effective the 29th day of August, 1984, so that Landis Dillard, Jr., may perfect a timely appeal from his convictions for Murder and Arson.
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* * *
The Court further concludes that, with this relief granted, there is no remaining viable issue in the Post-Conviction Relief proceeding and hereby serves notice of intent to dismiss the Petition [for post-conviction relief]. [Emphasis supplied.]
In its disposition of Dillard's application, the district court found guidance from our opinion in Flores v. State, 104 Idaho 191, 657 P.2d 488 (Ct.App.1981). Flores had been convicted of manslaughter. He later filed an application for post-conviction relief asserting, in part, that he had been denied effective assistance of counsel when no direct appeal from his conviction had been filed. He further alleged that he had repeatedly asked his attorney to perfect an appeal. Flores' application for relief was summarily dismissed by the district court. On appeal, we held that if Flores' allegations were true and if the attorney's inaction caused Flores not to appeal, he would be entitled to relief on his post-conviction application. We concluded the district court erred in summarily dismissing the application, and we remanded the case for an evidentiary hearing on the failure-to-appeal issue. Applying the rule in Samuels v. United States, 435 A.2d 392 (D.C.App.1981) and Hines v. United States, 237 A.2d 827 (D.C.App.1968), we instructed the district court as follows:
Should the court determine that Flores' counsel failed to file an appeal, after Flores instructed him to do so, and such failure deprived Flores of his opportunity to appeal, then the proper remedy is for the court, by order, to vacate and re-enter the judgment of conviction so that Flores might perfect a timely appeal.
104 Idaho at 195, 657 P.2d at 492. See also Evitts v. Lucey, 469 U.S. 387, --- n. 10, 105 S.Ct. 830, 838 n. 10, 83 L.Ed.2d 821 (1985), citing Rodriguez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969); United States v. Winterhalder, 724 F.2d 109 (10th Cir.1983); and Stahl v. Commonwealth, 613 S.W.2d 617 (Ky.1981).
With one slight difference, the action of the district court in this case comported with the directive in Flores. The only deviation occurred when the court below did not conduct an evidentiary hearing. Instead, when faced with the questions of whether an appeal had been filed and, if not, whether Dillard's attorney was at fault in not filing an appeal, the district court apparently informally consulted with the prosecutor and with Dillard's trial counsel. Based upon that investigation, the court concluded that "no appeal was in fact filed and no cause can be shown for an appeal not being filed." Dillard had attached to his application for post-conviction relief his affidavit stating that he had requested his trial attorney to file an appeal and that he was assured by a letter from his counsel (a copy of which was also attached to the affidavit) that an appeal would be filed "within a short period of time." The letter was dated twelve days after the judgment of conviction had been entered and was well before the expiration date for timely filing a notice of appeal. We believe that under the circumstances the district court did not err either in concluding that Dillard was entitled to relief or in granting relief by vacating and then reimposing the judgment of conviction and sentences in order to accord Dillard a right to timely appeal from the convictions.
We hold that this appeal is not "jurisdictionally defective" and therefore we deny the state's request that the appeal be dismissed. We turn now to Dillard's issues on appeal.
Dillard's first issue is stated in his brief as follows:
The trial court erred in not granting Defendant's motion to dismiss for denial of a speedy trial within the meaning of Idaho Code § 19-3501, the Sixth Amendment of the Constitution of the United States of America and Article 1, § 13 of the Constitution of the State of Idaho.
Dillard's stated issue requires consideration of four different aspects of his alleged denial of a speedy trial. First, was Dillard's statutory right to a speedy trial (I.C. § 19-3501) violated? Second, was Dillard's right to a speedy trial under the federal constitution violated? Third, was Dillard's right to a speedy trial under the Idaho Constitution violated? We will consider each of these questions, to determine, as the fourth aspect, whether the trial court erred in denying Dillard's motion to dismiss. The various statutory and constitutional provisions invoked by Dillard are set forth below. 2
Dillard was arraigned in district court on March 20, 1981, the same day an information was filed against him charging the homicide and arson. Dillard entered pleas of not guilty to each charge. During the course of...
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