Taylor v. State
| Decision Date | 16 July 2018 |
| Docket Number | Docket No. 44670 |
| Parties | BRIAN KENNETH TAYLOR, Petitioner-Appellant, v. STATE OF IDAHO, Respondent. |
| Court | Idaho Court of Appeals |
Karel A. Lehrman, Clerk
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Appeal from the District Court of the Second Judicial District, State of Idaho, Latah County. Hon. Jeff M. Brudie, District Judge.
Judgment and order dismissing petition for post-conviction relief, affirmed.
Brian Kenneth Taylor; Karnes City, Texas, pro se appellant
Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney General, Boise, for respondent.
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Brian Kenneth Taylor appeals from the district court's judgment and summary dismissal of Taylor's petition for post-conviction relief.
On May 21, 2013, two officers from the Moscow Police Department went to Taylor's house to talk with him about allegations of sexual abuse of a child. Taylor denied the allegations and declined to speak with the officers. The officers obtained a search warrant and searched Taylor's house. While a host of sexually-explicit material was located, Taylor was not arrested and no charges were filed.
On June 10, 2013, the officers obtained another search warrant based on new information from the child victim. Taylor agreed to leave work to allow officers to enter his house without forced entry. Before arriving, Taylor picked up his five-year-old son from daycare. Four officers conducted the search of Taylor's house. During the search, officers asked Taylor to stay in the living room while another officer took Taylor's son outside. A detective provided Taylor with Miranda1 warnings prior to questioning. Thereafter, and while the home was being searched, the officer asked Taylor if he felt "comfortable talking with [the officer] for a minute?" Taylor replied, "Um, not really."
Taylor ultimately disclosed the location of a camera as well as memory cards. The officers took the memory cards to the police department for examination. Finding pictures of Taylor engaged in various sexual acts with children, the officers returned and arrested Taylor.
Taylor moved to suppress his statements made during the officers' execution of the second search warrant and evidence resulting from those statements. Taylor argued that the statements relative to the location of the camera and memory cards were coerced and involuntary. The district court denied Taylor's motion to suppress. Taylor then agreed to plead guilty conditioned on his ability to appeal the district court's denial of his motion to suppress. Pursuant to the agreement, Taylor pled guilty to four counts of sexual abuse of a child, four counts of lewd conduct with a minor child, and one count of sexual exploitation of a child. The district court imposed unified life sentences, with ten years determinate, for each charge of lewd conduct with a minor child to run concurrently; a consecutive five-year determinate sentence for sexual exploitation of a child; and ten-year determinate sentences for each charge of sexual abuse of a child to run concurrently with each other, but consecutively with the other charges. Ultimately, the sentence resulted in a cumulative unified life sentence, with twenty-five years determinate.
Taylor's judgment of conviction was affirmed on appeal. State v. Taylor, Docket No. 41888 (Ct. App. Mar. 9, 2015) (unpublished). Thereafter, Taylor timely filed a petition for post-conviction relief and also requested the appointment of counsel. Counsel was appointed. Counsel filed an amended petition for post-conviction relief, which expressly superseded the initial petition.
In the amended petition, Taylor made various claims of ineffective assistance of counsel. He made one claim of ineffective assistance of counsel against his trial counsel. Therein, Taylor asserted his trial counsel was ineffective when he failed to file a motion to suppress Taylor's statements during the second search of Taylor's home on the grounds that Taylor's response,"Um, not really," was a clear and unequivocal assertion of his Fifth Amendment right to remain silent.
Taylor made three claims of ineffective assistance of counsel as it related to his appellate counsel. First, he claimed his appellate counsel was ineffective when appellate counsel failed to raise a claim on direct appeal that insufficient time had passed between Taylor's initial invocation of his Fifth Amendment right on May 21, 2013, and the time when the officers again questioned him on June 10, 2013. Second, Taylor argued that appellate counsel was ineffective for failing to argue that Taylor's statement, "Um, not really," was a clear invocation of his Fifth Amendment right to remain silent. Finally, he asserted that appellate counsel was ineffective for failing to file a petition for review with the Idaho Supreme Court.
The State filed a motion for summary dismissal, which the district court granted. The district court held that Taylor did not establish his trial counsel rendered deficient performance when he failed to argue in the motion to suppress that Taylor's statement, "Um, not really," was an assertion of Taylor's Fifth Amendment right because the statement was not a clear invocation of his Fifth Amendment right. As such, the district court found Taylor would not have prevailed on the motion even if his trial counsel had forwarded the argument, and thus, there was no genuine issue of material fact.
As to the claims of ineffective assistance of appellate counsel, the district court held generally that Taylor had not established that the claims he asserted should have been raised had more merit than the arguments actually raised. First, the district court held that the twenty days between Taylor's first invocation of his Fifth Amendment right and the next time officers interrogated him was a reasonable length of time. Thus, the claim would not have been successful on appeal. Second, the district court noted that because Taylor did not unequivocally invoke his Fifth Amendment right, there was no showing of deficient performance by appellate counsel to decline to raise that issue on appeal. Because Taylor had presented no evidence that the decision not to raise those issues was based on incompetence and because the claims were not more meritorious than those actually raised, the district court held that Taylor failed to raise a genuine issue of material fact regarding his claims of ineffective assistance of appellate counsel on these two claims.
Finally, on the third claim, the district court noted that Taylor did not have any constitutional right to a discretionary appeal, and therefore, he could not be deprived of effectiveassistance of counsel for failing to pursue that discretionary appeal. Further, the district court determined that Taylor had not shown he was entitled to review by the Idaho Supreme Court, and therefore, Taylor could not show any prejudice. As a result, the district court concluded there were no genuine issues of material facts, granted the State's motion for summary dismissal, dismissed the petition, and entered a judgment.
Taylor timely appeals.
A petition for post-conviction relief initiates a proceeding that is civil in nature. I.C. § 19-4907; Rhoades v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009); State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct. App. 1992). Like a plaintiff in a civil action, the petitioner must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002). A petition for post-conviction relief differs from a complaint in an ordinary civil action. Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004). A petition must contain much more than a short and plain statement of the claim that would suffice for a complaint under Idaho Rule of Civil Procedure 8(a)(1). Rather, a petition for post-conviction relief must be verified with respect to facts within the personal knowledge of the petitioner, and affidavits, records, or other evidence supporting its allegations must be attached or the petition must state why such supporting evidence is not included with the petition. I.C. § 19-4903. In other words, the petition must present or be accompanied by admissible evidence supporting its allegations or the petition will be subject to dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011).
Idaho Code Section 19-4906 authorizes summary dismissal of a petition for post-conviction relief, either pursuant to a motion by a party or upon the court's own initiative, if it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. When considering summary dismissal, the district court must construe disputed facts in the petitioner's favor, but the court is not required to accept either the petitioner's mere conclusory allegations, unsupported by admissible evidence, or the petitioner's conclusions of law. Roman v. State, 125Idaho 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). Moreover, the district court, as the trier of fact, is not constrained to draw inferences in favor of the party opposing the motion for summary disposition; rather, the district court is free to arrive at the most probable inferences to be drawn from uncontroverted evidence. Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). Such inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify them. Id.
A claim of ineffective assistance of counsel...
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