State v. Izzard, No. 26557

• Court: Court of Appeals of Idaho
• Writing for the Court: PERRY.
• Citation: 29 P.3d 960,136 Idaho 124
• Decision Date: 27 July 2001
• Docket Number: No. 26949., No. 26557
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Bill IZZARD, Jr., Defendant-Appellant. Bill Izzard, Jr., Petitioner-Appellant, v. State of Idaho, Respondent.

29 P.3d 960
136 Idaho 124

STATE of Idaho, Plaintiff-Respondent,
v.
Bill IZZARD, Jr., Defendant-Appellant.
Bill Izzard, Jr., Petitioner-Appellant,
v.
State of Idaho, Respondent

Nos. 26557, 26949.

Court of Appeals of Idaho.

July 27, 2001.

29 P.3d 962

Nevin, Herzfeld Benjamin, Boise, for appellant. Dennis A. Benjamin argued

Alan G. Lance, Attorney General; Karen A. Hudelson, Deputy Attorney General, Boise, for respondent. Karen A. Hudelson argued.

PERRY, Judge

In these consolidated cases, Bill Izzard, Jr., appeals from the district court's orders denying Izzard's motion to withdraw his guilty plea and dismissing his application for post-conviction relief. We affirm.

I.

BACKGROUND

On December 23, 1996, Izzard was charged by complaint with battery with intent to commit murder, I.C. §§ 18-903, 18-911, and conspiracy to commit murder, I.C. §§ 18-1701, 18-4001. On January 30, 1997, the state filed the charging information.

On February 3, 1997, Izzard pled guilty to an amended charge of aggravated battery, and the state dismissed the remaining conspiracy charge. On February 14, 1997, an amended information conforming with the plea agreement was filed. On April 24, 1997, the district court sentenced Izzard to a unified term of fifteen years, with a minimum period of confinement of seven and one-half years. Izzard filed an I.C.R. 35 motion for reduction of sentence, which was denied by the district court. In an unpublished opinion, this Court affirmed Izzard's judgment of conviction and sentence and the district court's denial of Izzard's Rule 35 motion. State v. Izzard, 132 Idaho 625, 977 P.2d 239 (1998).

In September 1999, Izzard filed an I.C.R. 33 motion to withdraw his guilty plea based upon two grounds. First, Izzard asserted that the district court was without jurisdiction or authority to accept his plea to aggravated battery because the amended information was not filed before his plea was accepted. Second, Izzard asserted that he was not informed of the nature of the charge against him before he pled guilty in violation of I.C.R. 11(c)(4). The district court concluded that it had jurisdiction to accept Izzard's plea and that Izzard had been aware of the nature of the charge against him. The district court therefore denied Izzard's motion to withdraw his guilty plea.

Simultaneous with his I.C.R. 33 motion, Izzard also filed an application for post-conviction relief asserting that the district court did not have jurisdiction to accept his guilty plea and that Izzard received ineffective assistance of counsel. The district court concluded that it had jurisdiction to accept Izzard's plea and that Izzard did not receive ineffective assistance. The district court therefore dismissed Izzard's application for post-conviction relief.

Izzard appeals, challenging the denial of his motion to withdraw his guilty plea and the dismissal of his application for post-conviction relief on the jurisdictional issue. Izzard does not raise the ineffective assistance claim on appeal. Thus, this Court must determine whether the district court had jurisdiction to accept Izzard's guilty plea and whether Izzard voluntarily and knowingly pled guilty.

II.

ANALYSIS

A. Standard of Review

1. Denial of Rule 33(c) Motion

The decision to grant or deny a motion to withdraw a guilty plea lies in the

29 P.3d 963

discretion of the district court. State v. McFarland, 130 Idaho 358, 361, 941 P.2d 330, 333 (Ct.App.1997). Appellate review of the denial of a motion to withdraw a plea is limited to whether the district court exercised sound judicial discretion as distinguished from arbitrary action. McFarland, 130 Idaho at 361, 941 P.2d at 333. Idaho Criminal Rule 33(c) provides that a "motion to withdraw a plea of guilty may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw defendant's plea." The exercise of the trial court's discretion is affected by the timing of the motion to withdraw the plea. State v. Ballard, 114 Idaho 799, 801, 761 P.2d 1151, 1153 (1988); McFarland, 130 Idaho at 361, 941 P.2d at 333. As indicated by Rule 33(c), a motion to withdraw a plea made after sentencing may be granted only to correct a "manifest injustice." Ballard, 114 Idaho at 801, 761 P.2d at 1153

2. Dismissal of Application for Post-conviction Relief

Summary dismissal of an application pursuant to I.C. § 19-4906 is the procedural equivalent of summary judgment under I.R.C.P. 56. Idaho Code Section 19-4906 authorizes summary disposition of an application for post-conviction relief, either pursuant to motion of a party or upon the court's own initiative. Summary dismissal is permissible only when the applicant's evidence has raised no genuine issue of material fact which, 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. Gonzales v. State, 120 Idaho 759, 763, 819 P.2d 1159, 1163 (Ct.App.1991); Hoover v. State, 114 Idaho 145, 146, 754 P.2d 458, 459 (Ct.App.1988); Ramirez v. State, 113 Idaho 87, 89, 741 P.2d 374, 376 (Ct.App.1987). On review of a dismissal of a post-conviction relief application without an evidentiary hearing, we determine whether a genuine issue of fact exists based on the pleadings, depositions and admissions together with any affidavits on file; moreover, the court liberally construes the facts and reasonable inferences in favor of the non-moving party. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct.App.1993).

B. Jurisdiction

First, Izzard argues that the district court was without jurisdiction to accept his guilty plea to...