Wolfe v. State

• Decision Date: 09 September 1987
• Docket Number: 16468,Nos. 15929,s. 15929
• Citation: 113 Idaho 337,743 P.2d 990
• Parties: William Franklin WOLFE, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

Page 990

743 P.2d 990

113 Idaho 337

William Franklin WOLFE, Petitioner-Appellant, v. STATE of Idaho, Respondent.

Nos. 15929, 16468.

Court of Appeals of Idaho.

Sept. 9, 1987.

Petition for Review Denied Dec. 15, 1987.

William Franklin Wolfe, petitioner-appellant, pro se.

Jim Jones, Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Boise, for respondent.

WALTERS, Chief Judge.

William Wolfe appeals from the dismissal of two successive applications he filed for post-conviction relief following his conviction for murder. The dismissals were entered by the district court without holding any evidentiary hearings specifically addressing the issues raised in the applications. Because we conclude Wolfe raised issues in his applications that require an evidentiary hearing, we vacate the orders dismissing Wolfe's applications, in part, and we remand the case for further proceedings.

The case comes to us with the following background. A jury found William Wolfe guilty of first-degree murder in the shooting death of a friend during an argument outside a bar in Stites, Idaho. Wolfe's defense was that the shot was fired without premeditation because he was too intoxicated to form the requisite intent to commit first-degree murder. The state presented one eyewitness to the shooting and other witnesses who described Wolfe's conduct immediately preceding the homicide. Following the verdict, Wolfe was sentenced to a fixed life term. On direct appeal, he challenged the sufficiency of the evidence of premeditation and of intent with malice aforethought, and also contended his sentence was excessive. We affirmed the conviction and the sentence. See State v. Wolfe, 107 Idaho 676, 691 P.2d 1291 (Ct.App.1984). While that appeal was pending, Wolfe filed a pro se application for post-conviction relief pursuant to Idaho's Uniform Post-Conviction Procedure Act. See I.C. §§ 19-4901 to -4909. Among other arguments, he contended that his trial counsel had been ineffective, that the state had utilized perjured testimony at the trial, and that jurors had overheard a conversation between witnesses outside the courtroom. Wolfe's appellate counsel was appointed to represent him at the post-conviction hearing. At the hearing, counsel also moved for reduction of the sentence pursuant to I.C.R. 35. Only Wolfe testified at this hearing; the primary focus in that hearing was on the reasons why Wolfe's sentence should be reduced, rather than on the allegations of his post-conviction relief petition. The trial court waited until our opinion in State v. Wolfe, supra, was issued, and then denied the application and the motion. Wolfe timely filed a notice of appeal.

Soon thereafter, Wolfe filed a second pro se application for post-conviction relief. In the second petition, Wolfe renewed the allegations of his initial application, alleged that publicity during the trial had influenced the jury's decision and contended that he did not receive effective assistance from counsel with regard to his initial application for post-conviction relief. The state moved to dismiss. In response, Wolfe filed a pro se brief accompanied by "appendices" containing information to substantiate his allegations. The trial court declined to provide the evidentiary hearing requested by Wolfe, and dismissed the application. Wolfe again appealed. Both appeals have been consolidated for disposition.

An application for post-conviction relief is a special proceeding that is civil in nature. Paradis v. State, 110 Idaho 534, 716 P.2d 1306 (1986); Clark v. State, 92 Idaho 827, 452 P.2d 54 (1969). It is an action entirely new and independent from the criminal proceeding which led to the conviction. State v. Paradis, supra; I.C. § 19-4901(b). Facts within the personal knowledge of the applicant and the authenticity of all documents and exhibits included in or attached to the application must be sworn to affirmatively as true and correct. I.C. § 19-4902. The application shall identify all previous proceedings, together with the grounds therein asserted, pursued by the applicant to secure relief from his conviction or sentence. I.C. § 19-4903. The power of a trial court to dismiss an application for post-conviction relief, without holding an evidentiary hearing, is granted by I.C. § 19-4906. The court cannot dismiss an application without a hearing if a material issue of fact exists. Daugherty v. State, 102 Idaho 782, 640 P.2d 1183 (Ct.App.1982). Until the allegations in a post-conviction petition are in some manner controverted by the State, they must be deemed to be true. Tramel v. State, 92 Idaho 643, 448 P.2d at 649. A motion to dismiss, unsupported by affidavits or other materials, does not controvert the allegations in the application. Clark v. State, supra. However, it is not error to dismiss the application without an evidentiary hearing if the allegations, though uncontroverted, would not entitle the petitioner to relief even if true. Id.; Baruth v. Gardner, 110 Idaho 156, 715 P.2d 369 (Ct.App.1986); I.C. § 19-4906.

Here we have two post-conviction applications, the second largely overlapping the first and also raising an issue of ineffective assistance of counsel in proceedings on the first application. Consequently, we address first a threshold question: whether a claim of ineffective assistance of counsel, in representing a petitioner in an initial application for post-conviction relief, may be raised as an issue in a subsequent or successive application for such relief. In respect to successive applications for post-conviction relief, I.C. § 19-4908 provides:

All grounds for relief available to an applicant under this act must be raised in his original, supplemental or amended application. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application.

I.C. § 19-4904 provides that "a court-appointed attorney shall be made available to the applicant" if he is unable to pay the "expenses of representation...." However, the ineffectiveness of such counsel is not among the permissible grounds for filing another post-conviction relief application under I.C. § 19-4901. The statutory scheme is designed to deal with collateral attacks upon allegedly improper convictions and sentences, not collateral attacks upon other post-conviction proceedings.

This does not mean that all is lost for the applicant who fails, as a result of alleged ineffective representation, to present fully his grounds for post-conviction relief. Rather, as noted, he may file another application setting forth such grounds more fully and he will be entitled to relief if "the court finds a ground ... which for sufficient reason was not asserted or was inadequately raised in the original, supplemental or amended application." I.C. § 49-4908. To be sure, this language permits an inquiry into why the applicant's attorney on the ...