Whitehawk v. State

• Decision Date: 29 June 1989
• Docket Number: No. 17638,17638
• Citation: 780 P.2d 153,116 Idaho 831
• Parties: Lyle Edison WHITEHAWK, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

Page 153

780 P.2d 153

116 Idaho 831

Lyle Edison WHITEHAWK, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 17638.

Court of Appeals of Idaho.

June 29, 1989.

E. Lee Schlender, Hailey, for petitioner-appellant.

Jim Jones, Atty. Gen., Michael J. Kane, Deputy Atty. Gen., for respondent.

SWANSTROM, Judge.

Lyle Whitehawk appeals from an order of the district court summarily dismissing his application for post-conviction relief. The dispositive issue on appeal is whether the application presented any genuine issues of material fact. We determine such issues do exist. We vacate the order and remand for an evidentiary hearing on the petition.

Whitehawk was originally charged with rape. He was found guilty of that charge in a jury trial but the verdict was set aside by the trial court on the grounds that the jury panel had been improperly selected. A new trial was ordered.

A few days before the new trial was to start, pursuant to a plea agreement, Whitehawk entered a plea of guilty to an amended charge of lewd conduct with a child under the age of sixteen. The court sentenced Whitehawk to an indeterminate sixteen year term. Whitehawk appealed. We affirmed the judgment of conviction, including the sentence, State v. Whitehawk, --- Idaho ----, 780 P.2d 149 (Ct.App.1989) (Whitehawk I ).

While his direct appeal was pending, Whitehawk filed an application for post-conviction relief. Whitehawk raised numerous grounds for relief stemming from asserted sentencing errors and from the treatment Whitehawk received after he was incarcerated. These grounds were generally denied in an answer filed by the state. This answer contained no motion to dismiss or any allegation that the application failed to raise a genuine issue of material fact. A time was set for a hearing on the application. The state contends that the parties subsequently stipulated to a waiver of the hearing. However, Whitehawk has argued--and we are persuaded by the record to agree--that Whitehawk did not waive his right to an evidentiary hearing, only his right to oral argument on the legal issues submitted to the court. The court then considered the application and issued its memorandum decision. The court found that no genuine issue of material fact existed and determined that the state's denial was sufficient to constitute a request for dismissal. The application was then dismissed under I.C. § 19-4906(c) which states:

The court may grant a motion by either party for summary disposition of the application when 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.

On appeal, Whitehawk argues that the district court erred in disposing of his application without conducting an evidentiary hearing. In particular, he argues: (1) that the summary dismissal was procedurally improper without a motion by the state; (2) that the uncontroverted facts established grounds for relief including the right to be free of cruel and unusual punishment; (3) that the district court failed to consider his mental and physical condition when the court sentenced Whitehawk and when the court denied Whitehawk's application for relief from incarceration; (4) the court erred in concluding that he was a danger to society; and (5) that the imposition of an indeterminate sixteen year sentence was an abuse of discretion.

We begin by noting that the scope of post-conviction relief is limited. An application for post-conviction relief is not a substitute for an appeal. I.C. § 19-4901(b). Generally speaking, a claim or issue which was or could have been raised on appeal may not be considered in post-conviction proceedings. Id. After an examination of the substance of Whitehawk's application and the issues raised in his direct appeal, we conclude that no reversible error occurred in respect to the dismissal of all but two of the grounds raised in the application. Among the grounds raised by Whitehawk in his application were allegations that his plea agreement was invalid and that the court erred in considering certain evidence for sentencing. These same issues were raised in Whitehawk's direct appeal and have been addressed by this Court in Whitehawk I. A convicted defendant may not simply relitigate the same factual questions in his application, in virtually the same factual context already presented in a direct appeal. Parsons v. State, 113 Idaho 421, 745 P.2d 300 (Ct.App.1987); State v. Darbin, 109 Idaho 516, 708 P.2d 921 (Ct.App.1985).

For the same reasons, we decline to address certain other issues concerning sentencing which were also presented and discussed in the direct appeal. These include the sentencing court's consideration of Whitehawk's mental and physical condition, the conclusion of the court that Whitehawk was a danger to society, and the exercise of discretion in imposing an indeterminate sixteen-year sentence. Moreover, post-conviction relief is not available merely to challenge a judge's exercise of discretion. Ramirez v. State, 113 Idaho 87, 89, 741 P.2d 374, 376 (Ct.App.1987). However, to the extent...