Whitcomb v. State
| Decision Date | 23 February 2012 |
| Docket Number | Docket No. 38778 |
| Parties | MICKY LEE WHITCOMB, Petitioner-Appellant, v. STATE OF IDAHO, Respondent. |
| Court | Idaho Court of Appeals |
2012 Unpublished Opinion No. 369
Stephen W. Kenyon, Clerk
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Appeal from the District Court of the First Judicial District, State of Idaho, Shoshone County. Hon. Fred M. Gibler, District Judge.
Order summarily dismissing successive petition for post-conviction relief and denying motion for appointment of counsel, affirmed.
Micky Lee Whitcomb, Orofino, pro se appellant.
Hon. Lawrence G. Wasden, Attorney General; Elizabeth A. Koeckeritz, Deputy Attorney General, Boise, for respondent.
Micky Lee Whitcomb appeals from the district court's order summarily dismissing his successive petition for post-conviction relief and denying his motion for appointment of counsel.
Whitcomb pled guilty to second degree murder and assault with intent to murder. These pleas were made in response to allegations that Whitcomb killed Sharon Webb by shooting her in the face at point-blank range with a high-powered hunting rifle, and that he then turned the gun on Webb's thirteen-year-old son, Jason, and fired again. Jason, however, was not hit. The district court sentenced Whitcomb to a determinate life term for second degree murder and a consecutive fourteen-year determinate term for assault with intent to murder. Whitcomb did not appeal the judgment of conviction or sentences. Whitcomb did, however, timely file a motion under Idaho Criminal Rule 35 for reconsideration of his sentences. Following a hearing, themotion was denied. Whitcomb appealed from the denial of his Rule 35 motion, and this Court affirmed. State v. Whitcomb, Docket No. 21966 (Ct. App. Dec. 22, 1995) (unpublished).
Six years later, in 2001, Whitcomb filed an application for post-conviction relief, alleging ineffective assistance of trial counsel. The district court dismissed the petition as untimely and as raising issues that could have been raised on direct appeal. Whitcomb appealed and this Court affirmed. Whitcomb v. State, Docket No. 27697 (Ct. App. Aug. 21, 2002) (unpublished). Whitcomb then filed a second Rule 35 motion. The district court denied the motion, finding it was an improper attack on the validity of Whitcomb's underlying conviction. Whitcomb appealed and, once again, this Court affirmed the district court. State v. Whitcomb, Docket No. 34139 (Ct. App. Jan. 24, 2008) (unpublished).
In 2011 Whitcomb filed a successive application for post-conviction relief and motion for appointment of counsel, which are the subjects of this appeal. Whitcomb claimed ineffective assistance of counsel for failure to file a direct appeal. The district court denied Whitcomb's motion for counsel and filed a notice of its intention to dismiss Whitcomb's application because: (1) his claim was identical to that made in his first application; (2) his claim was time-barred; and (3) the post-conviction proceeding was not one "that a reasonable person with adequate means would be willing to bring" at his own expense, and thus Whitcomb was not entitled to counsel. Idaho Code § 19-852(b)(3). Whitcomb responded to the notice of intent to dismiss and renewed his request for appointment of counsel. The district court dismissed Whitcomb's petition. Whitcomb timely appealed and requested appointment of appellate counsel. His motion for appointment of appellate counsel was denied.
Whitcomb argues that the district court abused its discretion by refusing to appoint counsel. He further argues that his successive post-conviction relief application is timely. The State argues that Whitcomb has failed to show error in the summary dismissal of his application for post-conviction relief and the denial of his request for counsel.
If a post-conviction applicant is unable to pay for the expenses of representation, the trial court may appoint counsel to represent the applicant in preparing the application, in the trial court and on appeal. I.C. § 19-4904. The decision to grant or deny a request for court-appointed counsel lies within the discretion of the district court. Charboneau v. State, 140 Idaho 789, 792,102 P.3d 1108, 1111 (2004). When a district court is presented with a request for appointed counsel, the court must address this request before ruling on the substantive issues in the case. Charboneau, 140 Idaho at 792, 102 P.3d at 1111; Fox v. State, 129 Idaho 881, 885, 934 P.2d 947, 951 (Ct. App. 1997). The district court abuses its discretion where it fails to determine whether an applicant for post-conviction relief is entitled to court-appointed counsel before denying the application on the merits. Charboneau, 140 Idaho at 793, 102 P.3d at 1112.
In determining whether to appoint counsel pursuant to I.C. § 19-4904, the district court should determine if the applicant is able to afford counsel and whether the situation is one in which counsel should be appointed to assist the applicant. Id. In its analysis, the district court should consider that applications filed by a pro se applicant may be conclusory and incomplete. See id. at 792-93, 102 P.3d at 1111-12. Facts sufficient to state a claim may not be alleged because they do not exist or because the pro se applicant does not know the essential elements of a claim. Id. Some claims are so patently frivolous that they could not be developed into viable claims even with the assistance of counsel. Newman v. State, 140 Idaho 491, 493, 95 P.3d 642, 644 (Ct. App. 2004). However, if an applicant alleges facts that raise the possibility of a valid claim, the district court should appoint counsel in order to give the applicant an opportunity to work with counsel and properly allege the necessary supporting facts. Charboneau, 140 Idaho at 793, 102 P.3d at 1112.1
The district court determined that Whitcomb's successive application was frivolous because it was time-barred and an improper successive application. Idaho Code § 19-4902(a) requires that a post-conviction action be commenced by filing an application within one (1) year from the expiration of the time for appeal or from the determination of an appeal or from the determination of proceedings following an appeal, whichever is later. A post-conviction action which is time-barred is properly considered to be frivolous. Swisher v. State, 129 Idaho 467, 470, 926 P.2d 1314, 1317 (Ct. App. 1996). Whitcomb filed his successive application more than fifteen years after he was sentenced, and approximately ten years after his first application. Thus, Whitcomb's second application for post-conviction relief was filed more than a year afterthe judgment in his underlying criminal case became final, making it time-barred under I.C. § 19-4902(a).
In the case of successive applications, the Idaho Supreme Court has recognized that the rigid application of I.C. § 19-4902 would preclude courts from considering claims which are not known to the applicant within the time limit, yet raise important due process issues. Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069 (2009). In those circumstances, the court will apply a reasonable time standard. Id. at 251, 220 P.3d at 1070. However, Whitcomb has not argued that his claim was not known or could not have reasonably been known within the timeframe for filing an initial application. Ineffective assistance of counsel claims are presumed to be known when they occur. Id. at 253, 220 P.3d at 1072. Within the time to file an initial application, Whitcomb knew that his counsel had not filed a direct appeal. Moreover, Whitcomb was aware of the failure to file a direct appeal long before the filing of a successive application because he made the identical claim in his initial application which itself was untimely.
Whitcomb's application is also not a proper successive application. Generally, all grounds for relief available to...
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