State v. LePage, No. 23222

• Decision Date: 11 February 2003
• Docket Number: No. 23222, No. 24492.
• Citation: 138 Idaho 803,69 P.3d 1064
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Robin James LePAGE, Defendant-Appellant. Robin James LePage, Petitioner-Appellant, v. State of Idaho, Respondent.
• Court: Idaho Court of Appeals

69 P.3d 1064

138 Idaho 803

STATE of Idaho, Plaintiff-Respondent, v. Robin James LePAGE, Defendant-Appellant.

Robin James LePage, Petitioner-Appellant, v. State of Idaho, Respondent.

Nos. 23222, 24492.

Court of Appeals of Idaho.

February 11, 2003.

Review Denied May 29, 2003.

Scott E. Axline, Blackfoot, for appellant.

Hon. Alan G. Lance, Attorney General; T. Paul Krueger II, Deputy Attorney General, Boise, for respondent. T. Paul Krueger II, argued.

PERRY, Judge.

In these consolidated cases, Robin James LePage appeals from the district court's orders denying his motion for a new trial and granting the state's motion for summary dismissal of LePage's successive application for post-conviction relief.¹ We affirm.

I. FACTS AND PROCEDURE

In 1978, LePage was found guilty by a jury of murdering Kurt Cornelison. LePage was sentenced to life in prison, with a fifteen-year firearm enhancement.² LePage appealed from his judgment of conviction, asserting that the admission of a state witness's testimony concerning inculpatory statements allegedly made by LePage while incarcerated violated his Sixth Amendment right to counsel and that he received ineffective assistance of counsel at trial. The Idaho Supreme Court held that, although LePage's right to counsel was violated under both the Idaho and United States Constitutions, the violation³ was harmless in view of the untainted evidence which provided overwhelming proof of LePage's guilt. See State v. LePage, 102 Idaho 387, 630 P.2d 674 (1981)

. The Court further held that LePage's claim that he was denied effective assistance of counsel based upon counsel's failure to move to suppress the witness's trial testimony was rendered moot by the Court's conclusion that the admission of such testimony was harmless error.

Following the decision in his direct appeal, LePage filed an application for post-conviction relief asserting that he was denied effective assistance of counsel at trial and that a state witness was induced by the state to perjuriously testify against LePage. Le-Page's application was denied and he appealed. This Court affirmed the district court's decision, concluding that those ineffective assistance claims raised on direct appeal were barred by the doctrine of res judicata and that no material issue of fact existed with respect to LePage's other claims. See Le-Page v. State, 109 Idaho 581, 710 P.2d 10 (Ct.App.1985)

.

In 1996, LePage filed a successive application for post-conviction relief in which he sought a new trial based on newly discovered DNA evidence showing that he was not the donor of semen that had been found in Cornelison's rectum. LePage claimed that this new evidence entitled him to a new trial and established that he was denied effective assistance of counsel at trial. The application was later amended to include an additional claim that his sentence was illegal because the state failed to notify LePage or his counsel of its intent to seek the firearm enhancement until sentencing.

The state filed a motion for summary dismissal of LePage's application, arguing that his claims were precluded by the doctrine of res judicata and that he failed to raise a material issue of fact for any of his claims. On February 20, 1997, the district court held a hearing on a number of pending motions, including an I.C.R. 35 motion to correct an illegal sentence filed by LePage and the state's motion for summary dismissal, and took them under advisement. In December 1997, LePage filed a motion for an order to obtain a fluid sample from Richard A. Leavitt and a hearing was held.⁴ On January 5, 1998, the district court summarily dismissed LePage's successive application and denied LePage's motion for a fluid sample from Leavitt after concluding that the new DNA evidence was merely impeaching and that it probably would not produce an acquittal. The district court also denied LePage's Rule 35 motion.

LePage appealed. During the pendency of the appeal, the state discovered that it possessed a sample of Leavitt's DNA and stipulated to the case being remanded for testing of Leavitt's DNA to compare it to the semen found on Cornelison's body. Testing of Leavitt's fluid sample indicated that Leavitt, like LePage, was not the donor of the semen discovered in Cornelison's rectum. LePage sought to amend his post-conviction relief application and submitted a motion for discovery to review available evidence from Leavitt's murder case in an effort to tie Leavitt to Cornelison's murder. Both of Le-Page's motions were denied.

LePage's appeal was reinstated with this Court. At the time originally set for oral argument, LePage's appeal was again suspended by order of this Court when it was discovered that documents pertaining to the issues raised by LePage had not been included in the record. The appeal was suspended in order to allow those documents to be augmented into the record. Augmentation of the record was completed and oral argument in this case was held on October 18, 2002. LePage raises several issues, each of which we address in turn.

II. STANDARD OF REVIEW

An application for post-conviction relief initiates a proceeding which is civil in nature. State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct.App.1992). Summary dismissal of an application pursuant to I.C. § 19-4906 is the procedural equivalent of summary judgment under I.R.C.P. 56. Like a plaintiff in a civil action, the applicant must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. I.C. § 19-4907; Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct.App.1990). An application for post-conviction relief differs from a complaint in an ordinary civil action, however, for an application must contain much more than "a short and plain statement of the claim" that would suffice for a complaint under I.R.C.P. 8(a)(1). Rather, an application for post-conviction relief must be verified with respect to facts within the personal knowledge of the applicant, and affidavits, records or other evidence supporting its allegations must be attached, or the application must state why such supporting evidence is not included with the application. I.C. § 19-4903. In other words, the application must present or be accompanied by admissible evidence supporting its allegations, or the application will be subject to dismissal.

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). Summary dismissal of an application for post-conviction relief may be appropriate, however, even where the state does not controvert the applicant's evidence because the court is not required to accept either the applicant's mere conclusory allegations, unsupported by admissible evidence, or the applicant's conclusions of law. Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct.App.1994); Baruth v. Gardner, 110 Idaho 156, 159, 715 P.2d 369, 372 (Ct.App.1986).

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 nonmoving party. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct.App.1993).

III. ANALYSIS

A. Applicable Legal Standard

We first address LePage's contention that the district court applied an incorrect standard in analyzing his post-conviction request for a new trial based on newly discovered evidence. The district court applied the four-prong test articulated in State v. Drapeau, 97 Idaho 685, 551 P.2d 972 (1976).⁵ The district court concluded that the new evidence merely impeached a portion of the testimony offered at trial and that the evidence would probably not produce an acquittal. LePage contends that the district court erred by applying the Drapeau standard in analyzing his claim because the Drapeau standard, specifically the requirement that the newly discovered evidence must be of such a nature that it will probably produce an acquittal, ignores the effect that the Massiah violation had on his conviction. LePage also asserts that the DNA evidence weakens the other evidence relied upon by the Idaho Supreme Court in upholding his conviction. According to LePage, the district court should have analyzed his request for a new trial in his post-conviction relief application using the harmless error standard set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Under the Chapman standard, before a federal constitutional error—in this case the Massiah violation—can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. See Chapman, 386 U.S. at 24,

87 S.Ct. at 828,

17 L.Ed.2d at 710.

Determination of the proper legal standard to be applied is a question of law over which we exercise free review. See State v. McFarland, 130 Idaho 358, 361, 941 P.2d 330, 333 (Ct.App.1997)

. The Idaho appellate courts have not had occasion to address the precise issue raised by LePage. However, in Cootz v. State, 129 Idaho 360, 924 P.2d 622 (Ct.App.1996), this Court appl...