Wilson v. State

• Citation: 993 P.2d 1205,133 Idaho 814
• Decision Date: 18 January 2000
• Docket Number: No. 24920.,24920.
• Parties: Richard C. WILSON, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

993 P.2d 1205

133 Idaho 814

Richard C. WILSON, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 24920.

Court of Appeals of Idaho.

January 18, 2000.

Wiebe & Fouser, Canyon County Public Defenders; Thomas A. Sullivan, Deputy Public Defender, Caldwell, for appellant.

Hon. Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

SCHWARTZMAN, Judge.

Richard C. Wilson appeals from the district court order summarily dismissing his application for post-conviction relief. Wilson raises three substantive assertions on appeal: (1) ineffective assistance of counsel in failing to advise Wilson that one of his prior convictions relied on by the prosecution when threatening persistent violator enhancement was a misdemeanor, not a felony as required by I.C. § 19-2514; (2) ineffective assistance of counsel in failing to assert a denial of due process defense, because in 1990 Wilson was not given notice that a subsequent driving under the influence (DUI) conviction within the next ten years could result in a felony conviction; and (3) the 1992 amendment to I.C. § 18-8005(7) did not encompass the use of pre-1992 DUI felony convictions for sentencing enhancement purposes. For the reasons stated below, we affirm.

I. FACTS AND PROCEDURE

In January of 1990, Wilson was convicted of felony DUI in violation of I.C. § 18-8004. The Idaho law at that time provided for a felony enhancement when an offender was convicted of three DUIs within any five-year period. Wilson was so warned. In July of 1992, I.C. § 18-8005(7) was revised to provide that "any person who has pled guilty or has been found guilty of a felony violation of the provisions of section 18-8004 ... and within ten (10) years pleads guilty or is found guilty of a further violation of the provisions of section 18-8004, Idaho Code, shall be guilty of a felony."

In June of 1995, Wilson was charged with DUI, which was enhanced to a felony because of his 1990 conviction and the 1992 amendment to I.C. § 18-8005(7). Wilson pled guilty and was sentenced to three years fixed plus two years indeterminate. Wilson subsequently filed an application for post-conviction relief which alleged ineffective assistance of counsel because his plea had been improperly induced by the state's threat to file a persistent violator enhancement under I.C. § 19-2514. Wilson claimed he had only one prior felony conviction and therefore was not subject to a persistent violator enhancement under I.C. § 19-2514. As such, he would not have pled guilty to the 1995 felony DUI charge if the threat of persistent violator enhancement had been eliminated through his attorney's effective representation.

The state filed its answer and attached, as exhibits, certified copies of Wilson's two prior convictions relied upon by the state. On the same day, the state moved for summary disposition, asking the court to take judicial notice of the district court files relating to all three cases.¹ The district court conditionally granted the state's motion for summary dismissal, noting that Wilson had offered nothing to establish the erroneous nature of his persistent violator status.

Wilson filed a timely response to the conditional order of dismissal in which he alleged that his 1990 felony DUI conviction should not be used under I.C. § 18-8005(7) to enhance his 1995 DUI charge to a felony because that code section did not exist in the same form in 1990. Wilson also asserted that he was required to be warned in 1990 of the possible felony penalty for a subsequent DUI conviction, as a matter of due process, if the state chose to charge him under the 1992 amendment; and that his counsel was ineffective in failing to raise this defense.

The district court summarily dismissed Wilson's petition in part, conditionally dismissing other parts. The court determined that Wilson had two prior felony convictions and therefore was a persistent violator, that he did not have a right to be warned of the enhancement provisions of I.C. § 18-8005(7) in 1990, and that using a pre-1992 DUI felony conviction to enhance his post-1992 DUI charge was not an ex post facto application of law. Wilson filed another timely response to this second order, focusing on the legislative intent behind the 1992 amendment and arguing that it did not apply to any prior existing DUI felony. He also contended that application of I.C. § 18-8005(7) amounted to retroactive imposition of the law, an issue that has since been conceded on appeal to be without merit.² The district court then issued its final order dismissing Wilson's entire post-conviction petition, from which Wilson appeals.

II.

UNIFORM POST-CONVICTION PROCEDURE ACT (UPCPA) STANDARDS AND THE PROOF REQUIRED TO SHOW INEFFECTIVE ASSISTANCE OF COUNSEL.

A. UPCPA Standards

An application for post-conviction relief initiates a proceeding that is civil in nature. Hassett v. State, 127 Idaho 313, 315, 900 P.2d 221, 223 (Ct.App.1995). A petitioner must prove by a preponderance of the evidence the truth of the allegations upon which the application is based. Id. at 316, 900 P.2d at 224. The district court does not have to accept a petitioner's mere conclusory allegations or conclusions of law. Id. Summary dismissal by the district court is akin to summary judgment under I.R.C.P. 56. Id. at 315, 900 P.2d 221. Dismissal is proper where the evidence disproves essential elements of the petitioner's assertions or where the evidence does not support relief to the petitioner as a matter of law. Cooper v. State, 96 Idaho 542, 545, 531 P.2d 1187, 1190 (1975).

B. Standard of Review

On appeal from a summary dismissal of a petition, this Court reviews the record to determine if issues of material fact exist which require an evidentiary hearing. "The issue on appeal from a dismissal is whether the petition alleges facts which, if true, would entitle the petitioner to relief." Matthews v. State, 122 Idaho 801, 807, 839 P.2d 1215, 1221 (1992). Legal conclusions are reviewed de novo. Owen v. State, 130 Idaho 715, 716, 947 P.2d 388, 389 (1997)

; Free v. State, 125 Idaho 760, 763, 874 P.2d 571, 574 (Ct.App.1993); Holmes v. State, 104 Idaho 312, 658 P.2d 983 (Ct.App.1983). We additionally exercise free review over the district court's determination that constitutional requirements were satisfied considering all the facts of the case. Buffington v. State, 130 Idaho 507, 509, 943 P.2d 933, 935 (1997); Gafford v. State, 127 Idaho 472, 475, 903 P.2d 61, 64 (1995).

C. Ineffective Assistance of Counsel

To prevail on an ineffective assistance of counsel claim, a defendant is required to show that counsel's performance was deficient and that he or she was prejudiced by that deficiency. LaBelle v. State, 130 Idaho 115, 118, 937 P.2d 427, 430 (Ct. App.1997), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693

. A defendant must show that counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688,

104 S.Ct. at 2064-65,

80 L.Ed.2d at 693-94. There is a strong presumption that trial counsel's representation was within the "wide range of professionally competent assistance." Id. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695; Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). To establish prejudice, the defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694,

104 S.Ct. at 2068,

80 L.Ed.2d at 698.

III. WILSON'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS WERE PROPERLY DISMISSED

A. Wilson Fits Into the Classification of Persistent Violator Under I.C. § 19-2514

Wilson claims that he has only one prior felony conviction, and therefore there was an issue of material fact that his counsel was deficient and prejudiced him by not challenging his status as a persistent violator. As previously noted, the state's answer to this claim included two certified copies of judgments of conviction against Wilson and asked the district court to take judicial notice of the applicable case files. The district court subsequently found that Wilson failed to establish that one of his alleged prior felony convictions was a misdemeanor.

Wilson has failed to include the prior case files as exhibits on this appeal. It is the appellant's responsibility to provide an adequate record to substantiate his or her claims on appeal. State v. Beason, 119 Idaho 103, 105, 803 P.2d 1009, 1011 (Ct.App.1991); State v. Murinko, 108 Idaho 872, 873, 702 P.2d 910, 911 (Ct.App.1985). We will not presume any error by the district court in the absence of an adequate record on appeal to support an appellant's claims. Beason, 119 Idaho at 105, 803 P.2d at 1011; Murinko, 108 Idaho at 873, 702 P.2d at 911. Missing portions of the record must be presumed to support the action of the district court. State v. Mowrey, 128 Idaho 804, 805, 919 P.2d 333, 334 (1996); State v. Beck, 128 Idaho 416, 422, 913 P.2d 1186, 1192 (Ct.App.1996). Because Wilson has failed to supply an adequate record to support his claim that one conviction was a misdemeanor and not a felony, we are unable to determine if an issue of material fact existed at the time of summary dismissal. We therefore must presume that the complete record below supported the district court's finding that it was "undisputed" that Wilson's two prior convictions were felonies.

Furthermore, looking at the judgment of conviction attached to the state's answer and relied upon by Wilson, it appears that the challenged conviction was indeed a felony. Wilson claims that the pronounced sentence of one year to the county jail is a sentence more representative of a misdemeanor than a felony. However, looking closely at the judgment of conviction, it shows that Wilson violated an agreement of supervision made with the Idaho Department of Correction (IDC). Probation...