Tolman v. State, 21871
| Decision Date | 30 May 1996 |
| Docket Number | No. 21871,21871 |
| Citation | 128 Idaho 643,917 P.2d 800 |
| Parties | Donald Marvin TOLMAN, Petitioner-Appellant, v. STATE of Idaho, Respondent. |
| Court | Idaho Court of Appeals |
Alan G. Lance, Attorney General; Myrna A.I. Stahman, Deputy Attorney General, Boise, for respondent.
In this case we are asked to review the denial of an application for post-conviction relief. After reviewing the record and applicable law, we affirm.
Donald Marvin Tolman was charged with two counts of lewd conduct and one count of child sexual abuse. I.C. §§ 18-1508; -1506. A jury convicted Tolman of all three counts. The district court sentenced Tolman to unified life terms for the lewd conduct convictions, with minimum periods of confinement of ten and fifteen years, respectively. The district court imposed a unified term of fifteen years, with a five-year minimum period of incarceration, for the sexual abuse charge, to run concurrently with the sentences for lewd conduct. The district court retained jurisdiction, awaiting an evaluation by the North Idaho Correctional Institution (NICI). Tolman filed an I.C.R. 35 motion for reduction of his sentences. The district court held a hearing to review Tolman's retained jurisdiction performance and his I.C.R. 35 motion. At the conclusion of the hearing the district court denied the I.C.R. 35 motion, relinquished jurisdiction and committed Tolman to the Department of Corrections for the sentences previously imposed. Tolman appealed the denial of his I.C.R. 35 motion, along with other issues. The Idaho Supreme Court affirmed the judgments of conviction and sentences imposed by the district court. See State v. Tolman, 121 Idaho 899, 828 P.2d 1304 (1992).
Tolman filed a pro se application for post-conviction relief, claiming that his due process rights were violated by the procedures employed by NICI. Specifically, Tolman claims that he was not provided an opportunity to review the psychological evaluation, social worker's report or recommendation prepared by NICI. Tolman also claims he had a right to a rebuttal hearing prior to the jurisdictional review committee's recommendation being forwarded to the district court. Counsel was appointed to represent Tolman during the post-conviction relief proceedings. The district court provided Tolman an evidentiary hearing on his post-conviction relief application. Following the hearing, the district court denied Tolman's request for post-conviction relief. Tolman now appeals.
An applicant for post-conviction relief bears the burden of proving, by a preponderance of the evidence, the allegations on which the applicant's claims are based. I.C.R. 57(c); Estes v. State, 111 Idaho 430, 436, 725 P.2d 135, 141 (1986); Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969). Where there is competent and substantial evidence to support the district court's decision made after an evidentiary hearing on an application for post-conviction relief, that decision will not be disturbed on appeal. Holmes v. State, 104 Idaho 312, 658 P.2d 983 (Ct.App.1983). Findings of fact by the district court will not be set aside on appeal unless they are clearly erroneous. Id. at 313, 658 P.2d at 984; I.R.C.P. 52(a). The credibility of the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence are all matters solely within the province of the district court. Larkin v. State, 115 Idaho 72, 764 P.2d 439 (Ct.App.1988).
Tolman claims that his due process rights were violated through the procedures utilized by NICI. He contends that he was denied appropriate review of relevant materials as well as an opportunity to rebut the proposed recommendation of the jurisdictional review committee. Tolman asserts that these denials are of constitutional magnitude and entitle him to post-conviction relief in the form of a current review of his fitness for probation. However, we note that the jurisdictional review committee's report did not take the form of a recommendation to relinquish jurisdiction. 1
The district court, in considering Tolman's post-conviction relief application, found that Tolman suffered no due process violation because his procedural rights were satisfied by the hearing afforded by the court on Tolman's I.C.R. 35 motion and the relinquishment of jurisdiction. The district court found that because Tolman was provided a hearing before the district court, at which he was represented by an attorney and was allowed to review the NICI progress report, present evidence and make a rebuttal, he was not prejudiced by any alleged deficiency in the procedures at NICI.
Tolman disputes the district court's finding that he had an opportunity to review the progress report and attached psychological evaluation. Appellate judges should defer to findings of fact based upon substantial evidence. Staggie v. Idaho Falls Consol. Hosps., Inc., 110 Idaho 349, 351, 715 P.2d 1019, 1021 (Ct.App.1986). The district court's finding that Tolman had the opportunity to review the relevant evaluation was supported by substantial, although conflicting, evidence presented during the post-conviction relief hearing.
In denying Tolman's post-conviction relief application, the district further found:
NICI did not make a recommendation as to whether Tolman should be placed on probation, but rather provided to this judge a progress report. A copy of that report was provided to Tolman's attorney prior to the hearing....
4. If Tolman was not afforded all of his due process rights while at NICI, Tolman was not prejudiced by NICI's acts or omissions, because this district judge afforded Tolman an opportunity to view the progress report (by providing a copy to Tolman's attorney), to present evidence, to make a rebuttal and other rights at the hearing on February 2, 1990.
The district court concluded that Tolman was not prejudiced by any acts or omissions of NICI because he was afforded all due process rights attached to the relinquishment of jurisdiction during the I.C.R. 35 motion and relinquishment hearing before the district court. We agree.
If Tolman believed that he had been precluded from presenting pertinent evidence to the jurisdictional review committee regarding relinquishment of jurisdiction, said evidence could and should have been...
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