Stone v. State
| Decision Date | 19 June 1985 |
| Docket Number | No. 15550,15550 |
| Citation | 108 Idaho 822,702 P.2d 860 |
| Parties | Thomas Lee STONE, Petitioner-Appellant, v. STATE of Idaho, Respondent. |
| Court | Idaho Court of Appeals |
Van G. Bishop, Nampa, for petitioner-appellant.
Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., A. Rene Fitzpatrick, Deputy Atty. Gen., Boise, for respondent.
Thomas Lee Stone pled guilty to grand theft-embezzlement, I.C. §§ 18-2403(1), 18-2403(2)(b). He was sentenced to a fixed five-year term in the custody of the Board of Correction. He did not appeal. After serving fifteen months of his sentence, he filed a petition for post-conviction relief, contending: (1) the bail set at the probable cause hearing was excessive; (2) the prosecutor made prejudicial statements which resulted in a coerced guilty plea; (3) the sentence was excessive; (4) his vehicle had been illegally searched and evidence had been illegally seized; and (5) he did not have the assistance of counsel throughout the entire proceedings. The state answered these contentions and requested that "the Petition be dismissed without oral arguments." The district court thereafter entered a notice of its intent to dismiss the petition without further proceedings. Stone responded, but to no avail. The court dismissed the petition, without a hearing, on the ground that "there is no genuine issue of material fact, Respondent being entitled to a judgment as a matter of law...." Stone appealed from the order of dismissal. We affirm.
The power of a court to dismiss a petition for post-conviction relief without an evidentiary hearing is granted by I.C. § 19-4906. A court cannot dismiss a petition without a hearing if there exists a material issue of fact. Daugherty v. State, 102 Idaho 782, 640 P.2d 1183 (Ct.App.1982). See also State v. Goodrich, 104 Idaho 469, 660 P.2d 934 (1983). "[T]o justify an evidentiary hearing in a post-conviction relief proceeding, it is incumbent upon the [petitioner] to tender a factual showing based upon evidence that would be admissible at the hearing" and which would entitle the petitioner to relief. Drapeau v. State, 103 Idaho 612, 617, 651 P.2d 546, 551 (Ct.App.1982). See also Cooper v. State, 96 Idaho 542, 531 P.2d 1187 (1975). Furthermore, "[u]ntil the allegations [of the petition] are controverted, they are deemed true; a motion to dismiss unsupported by affidavits or other materials, does not controvert the allegations in the petition." Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969). Here, the state responded to the petition with a detailed argument, supported to some extent by references to an attached exhibit and to portions of the record on appeal. The record refutes some of petitioner's allegations. The other allegations of petitioner, either not refuted by the record or about which an issue of fact exists, we will treat as true. Of course, even if true, those facts may not be material; that is, they may not show that Stone is entitled to any relief. If this is the case, the district judge was correct in dismissing the petition without a hearing.
At the probable cause hearing, the court set bail at $25,000. Stone argues this was excessive and therefore violated the eighth amendment to the United States Constitution. "[D]etermination of the amount [of bail] is committed to the sound discretion of the trial judge, and his decision will not be disturbed except in case of a clear abuse of discretion." Vigil v. State, 563 P.2d 1344, 1347 (Wyo.1977). "Moreover, the proper method of challenging a bond as excessive is through a petition for writ of habeas corpus to [the Supreme Court], provided application has first been made to the trial court to reduce bond." State v. Ybarra, 102 Idaho 573, 575, 634 P.2d 435, 437 (1981). The record does not show that Stone ever applied to the trial court to reduce the amount of bail, nor did he petition the Supreme Court for a writ of habeas corpus before the judgment of conviction was entered.
After trial and conviction, questions regarding excessiveness of bail generally cannot be raised. See State v. Jelle, 21 Wash.App. 872, 587 P.2d 595 (1978); see also State v. Sheppard, 100 Ohio App. 345, 128 N.E.2d 471 (1955). On the other hand, where the defendant contends that excessive bail materially interfered with his right to counsel and impeded his defense, an appellate court is at liberty to review the question. Cf. Bitter v. United States, 389 U.S. 15, 88 S.Ct. 6, 19 L.Ed.2d 15 (1967) (). For purposes of this appeal, we will assume the same rule prevails in post-conviction relief proceedings. Stone does not contend that the allegedly excessive bail materially interfered with his right to counsel or impeded his defense. He does not allege that it affected the voluntariness of his guilty plea. He only asserts that his bail was excessive. Under these circumstances we will not address the issue.
Stone next argues that during the course of the proceedings the prosecutor made "prejudicial statements" which "forced" him to plead guilty. He alleges that the prosecutor threatened to charge Stone as an habitual offender and represented that an additional twenty-six counts could be filed in federal court if he did not plead guilty. Stone, however, does not allege that these additional charges were groundless, only that they were not filed. It is clear from the record that Stone was aware his prior felony convictions made it possible for him to be charged by the state as a persistent violator and to receive a life sentence. See I.C. § 19-2514. He thus does not contend that the prosecutor's conduct was fraudulent. A prosecutor is at liberty to use the availability of filing additional, legitimate charges as a bargaining chip in plea negotiations. "A guilty plea induced by a prosecutorial ... promise to refrain from filing additional charges does not necessarily vitiate an otherwise voluntary plea." State v. Swindell, 93 Wash.2d 192, 607 P.2d 852, 855 (1980). "Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation." Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978). Stone admits his counsel was present when the "threats" were made. He does not allege any other facts which would cast a shadow on the voluntariness of his guilty plea. Stone was thus "presumptively capable of intelligent choice in response to prosecutorial persuasion." He has therefore not alleged facts which, even if true, would entitle him to relief. See Cooper v. State, supra.
Stone also argues that his sentence was unduly harsh. He alleges that his "record is one of non-violence with his previous convictions consisting solely of property crimes." In addition, he alleges that he had not been convicted of a crime for at least five years prior to pleading guilty to the crime involved in the present case. He further asserts that the trial court "was impressed with him." He received a fixed five-year sentence. A sentence will not be disturbed unless the appellant shows a clear abuse of discretion. State v. Cotton, 100 Idaho 573, 602 P.2d 71 (1979). The maximum penalty for grand theft-embezzlement, as charged in this case, is fourteen years. See I.C. § 18-2408(2)(a). The fixed five-year sentence imposed in this case was thus within the statutory limits. The question is whether, under any reasonable view of the facts, a term of five years would exceed the period of confinement necessary to protect society, and to accomplish the other related goals of sentencing. Holmes v. State, 104 Idaho 312, 658 P.2d 983 (Ct.App.1983). 1 See also State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct.App.1982). "As a corollary, where reasonable minds might differ as to the sufficiency of the time of confinement, the discretion of the sentencing court in imposing the sentence will be respected." Holmes v. State, 104 Idaho at 315, 658 P.2d at 986.
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