Opinion
Docket No. 25262.
Filed: August 9, 2000.
Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. James C. Morfitt, District Judge.
Order denying motion for appointment of counsel in post-conviction action, reversed; order summarily dismissing post-conviction relief action, vacated, and case remanded.
Ronaldo A. Coulter, State Appellate Public Defender; Molly J. Huskey, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Alan G. Lance, Attorney General; T. Paul Krueger II, Deputy Attorney General, Boise, for respondent.
On this appeal, Douglas Brown challenges the district court's order declining to appoint counsel to represent Brown in this post-conviction action and the district court's order summarily dismissing Brown's pro se application for post-conviction relief. Because we conclude that the district court erred in denying Brown's motion for appointed counsel, we reverse that order, vacate the order of summary dismissal, and remand the case for further proceedings.
FACTS AND PROCEDURAL HISTORY
Douglas Brown pleaded guilty to sexual abuse of a child under the age of sixteen years, Idaho Code § 18-1506. The district court imposed a unified ten-year sentence with a two and one-half year minimum term. Brown appealed, and this Court affirmed his conviction and sentence in an unpublished opinion. Thereafter, Brown filed a pro se application for post-conviction relief alleging several bases for relief, including a claim that he received ineffective assistance of counsel in the criminal case.
State v. Brown, Docket Nos. 23707 23834 (Ct.App. July 29, 1998).
Brown also filed a motion for appointment of counsel to represent him in the post-conviction proceeding. In support of this motion Brown alleged that, having had no prior felonies or any criminal record, he had no experience in the judicial system and thus had an increased need for counsel as compared to more experienced post-conviction applicants. The State filed an answer and a motion for summary dismissal of Brown's action. Prior to the hearing on the State's motion, Brown filed another motion for appointment of counsel. Brown asserted that he particularly needed the assistance of an attorney due to health problems that confined him to a wheelchair, his placement in segregated confinement, and his lack of access to legal materials because there is no law library at the Idaho State Correctional Institution.
The State's motion was phrased in very general terms and did not identify any specific basis for dismissal of Brown's particular claims. Therefore, if Brown had been knowledgeable about governing law, he could have challenged the sufficiency of the motion to give notice of any asserted deficiencies in his evidence or any legal arguments to which he needed to respond. See Saykhamchone v. State, 127 Idaho 319, 322, 900 P.2d 795, 798 (1995); Banks v. State, 123 Idaho 953, 855 P.2d 38 (1993); Flores v. State, 128 Idaho 476, 478, 915 P.2d 38, 40 (Ct.App. 1996); Martinez v. State, 126 Idaho 813, 817-18, 892 P.2d 488, 492-493 (Ct.App. 1995).
The district court conducted a hearing to address both Brown's motion for appointment of counsel and the State's motion for summary dismissal, but Brown was not transported to the hearing. At the hearing, the district court denied Brown's request for appointed counsel and granted the State's motion to dismiss. The court expressed no reason or findings for the denial of Brown's request for counsel apart from the reasons given for granting the summary dismissal motion.
Brown has appealed, challenging the denial of counsel and the dismissal of his claims. The district court appointed an attorney to represent Brown on this appeal.
ANALYSIS
Idaho's Uniform Post-Conviction Procedure Act, I.C. § 19-4901, et seq. (UPCPA), comprehends and takes the place of all other common law, statutory or other remedies previously available for challenging the validity of a conviction or sentence. I.C. 19-4901(b). Therefore, once the time for a direct appeal from a judgment of conviction has expired, a post-conviction action is the exclusive mechanism to present a claim that a conviction or sentence was entered in violation of constitutional or statutory law. Still v. State, 95 Idaho 766, 768, 519 P.2d 435, 437 (1974); Abbott v. State, 129 Idaho 381, 384, 924 P.2d 1225, 1228 (Ct.App. 1996). The UPCPA "is designed to give an applicant every opportunity to state any legitimate grounds as set forth in I.C. § 19-4901 for challenging the lawfulness of the proceedings which led to the judgment pronounced by the trial court, to challenge his sentence on the grounds that it has expired or that his probation, parole or conditional release was unlawfully revoked or that he is unlawfully held in custody or other restraint." Dionne v. State, 93 Idaho 235, 237, 459 P.2d 1017, 1019 (1969).
An action for post-conviction relief is civil in nature and the Idaho Rules of Civil Procedure apply. I.C.R. 57(b); Pizzuto v. State, 127 Idaho 469, 470, 903 P.2d 58, 59 (1995); Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969); Carsner v. State, 132 Idaho 235, 239, 970 P.2d 28, 32 (Ct.App. 1998). An applicant bears the burden to prove, by a preponderance of evidence, the allegations upon which the request for post-conviction relief is based. Clark, supra; Medina v. State, 132 Idaho 722, 724, 979 P.2d 124, 126 (Ct.App. 1999).
Brown's request for appointment of an attorney to represent him in the post-conviction action is governed by two statutes, I.C. § 19-4904 and § 19-852. Section 19-4904, which is part of the UPCPA, states that if the applicant is indigent, "a court-appointed attorney may be made available to the applicant." The other applicable statute, § 19-852, provides that one who is being detained for conviction of a serious crime and is unable to afford to pay private counsel is entitled to be represented by an attorney at public expense. I.C. § 19-852(a). However, subsection (b) of the statute qualifies the right to appointed counsel in post-conviction proceedings by providing that the court may decline appointment of counsel if the court "determines that it is not a proceeding that a reasonable person with adequate means would be willing to bring at his own expense and is therefore a frivolous proceeding." Thus, under these statutes, it is within the district court's discretion to deny a motion for appointment of counsel in post-conviction proceedings if the court concludes that the claims are frivolous. See Banks v. State, 128 Idaho 886, 889, 920 P.2d 905, 908 (1996); Swisher v. State, 129 Idaho 467, 468-69, 926 P.2d 1314, 1315-16 (Ct.App. 1996). Given this statutory standard, a trial court presented with a motion for appointed counsel in a post-conviction action must evaluate the application and supporting documentation to determine whether the applicant's claims are entirely frivolous or whether any claim of possible merit has been alleged.
Until 1993, this statute made appointment of counsel for indigent post-conviction applicants mandatory. However, in 1993 the legislature amended the statute to substitute the word "may" for "shall." 1993 Idaho Sess. Laws, ch. 265 at 898.
The decision whether to appoint counsel in a post-conviction action is discretionary with the district court, Cowger v. State, 132 Idaho 681, 683, 978 P.2d 241, 243 (Ct.App. 1999). Therefore, we review the decision on appeal to determine "(1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it; and (3) whether the court reached its decision by an exercise of reason." Id. at 684, 978 P.2d at 244. The essence of this appeal is the ascertainment of what legal standard governed the district court's choice and hence whether the court acted within the boundaries of its discretion.
A trial court's decision not to appoint counsel is, in practical effect, the death knell for virtually any pro se post-conviction action, for such actions ordinarily implicate complex rules of constitutional, statutory and procedural law that have not been mastered, and cannot be navigated, by inmates who typically have limited educations and no training in the law. Inmates very rarely possess the legal expertise or the access to witnesses and evidence that are necessary to successfully shepherd a post-conviction claim through the litigation process, regardless of the legitimacy of the claim. Hence, the standard of frivolousness applied by the courts in deciding whether to appoint counsel may be determinative of whether the UPCPA will be a genuine avenue of redress for invalid convictions and sentences.
The statutory proviso equating frivolousness with "a proceeding that a reasonable person with adequate means would [not] be willing to bring at his own expense," I.C. § 19-852(b)(3), often cannot be readily applied to a pro se pleading. This is so because the pleading may be so general, inadept and incomplete that it cannot be ascertained from the pleading alone whether there lurks therein a claim with sufficient potential for success that a reasonable person would pursue it at his or her own expense.
We think it apparent that the frivolousness test applicable to a request for appointed counsel is not the equivalent of the standard for summary dismissal of a post-conviction action. The test for summary dismissal is whether the applicant has raised a genuine issue of material fact which, if resolved in the applicant's favor, would entitle him to the requested relief. Carsner, 132 Idaho at 242, 970 P.2d at 35; Fenstermaker v. State, 128 Idaho 285, 287, 912 P.2d 653, 655 (Ct.App. 1995); Follinus v. State, 127 Idaho 897, 899, 908 P.2d 590, 592 (Ct.App. 1995). That query has been otherwise stated as whether the applicant has, with admissible evidence, made a prima facie case establishing each essential element of the claim. Berg v. State, 131 Idaho 517, 518, 960 P.2d 738, 739 (1998); Vick v. State, 131 Idaho 121, 123, 952 P.2d 1257, 1259 (Ct.App. 1998); Banuelos v. State, 127 Idaho 860, 862, 908 P.2d 162, 164 (Ct.App. 1995); Roman v. State, 125 Idaho 644, 648, 873 P.2d 898, 902 (Ct.App. 1994). This standard could seldom be met by pro se applicants and is too high a threshold for appointment of counsel. A pro se applicant with no legal training or legal advice may allege a potentially meritorious basis for relief but be unaware of how to plead or present admissible evidence on all of the essential elements. An applicant could be denied appointed counsel, no matter how meritorious the alleged claim, if the applicant lacked knowledge of how to plead and provide evidentiary support for the claim with sufficient art and precision to survive a motion for summary dismissal.
Consequently, we conclude that the appropriate frivolousness test on a motion for appointed counsel is akin to that which is applied to a motion to dismiss a civil action on the pleadings under Idaho Rule of Civil Procedure 12(b)(6). That test is whether "it appears beyond doubt that the [plaintiff] could prove no set of facts in support of his claim which would entitle him to relief." K. Hefner, Inc. v. Caremark, Inc., 128 Idaho 726, 729, 918 P.2d 595, 598 (1996) (quoting Orthman v. Idaho Power Co., 126 Idaho 960, 962, 895 P.2d 561, 563 (1995)); Harper v. Harper, 122 Idaho 535, 536, 835 P.2d 1346, 1347 (Ct.App. 1992). See also Yoakum v. Hartford Fire Ins. Co., 129 Idaho 171, 175, 923 P.2d 416, 420 (1996). This standard will allow the denial of counsel for patently frivolous post-conviction actions while entitling an applicant to appointed counsel if the applicant alleges in at least a general way a potential right to relief which, with the assistance of an attorney, might be pleaded with the necessary specificity and supported with admissible evidence. Under this standard, a trial court may refuse counsel where it is apparent that, even with the assistance of an attorney, no meritorious claim could be proved. This would include, for example, claims based on alleged facts that are conclusively disproven by the record in the criminal case; claims asserting errors in the criminal proceedings that were or could have been raised on direct appeal from the judgment of conviction and are therefore impermissible for a post-conviction action, see I.C. § 19-4901(b); and claims based upon a plainly untenable legal theory, as where an applicant alleges that his counsel was deficient for failing to object to evidence that was clearly unobjectionable.
The court may order the preparation of transcripts of the criminal proceedings before acting on a post-conviction applicant's request for appointed counsel.
Brown's application includes examples of such utterly frivolous claims that would not warrant appointment of counsel. These include allegations that Brown's criminal defense attorney was ineffective because he "did not object to State manufactured videotape shown to the jury" and "did not call the Petitioner's witnesses." In view of the fact that Brown pleaded guilty and no trial was ever conducted, it is apparent that Brown could prove no facts that would entitle him to relief on these claims.
To prevail on a claim of ineffective assistance of counsel, an applicant must show that counsel's performance in the criminal proceedings was deficient and that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668 (1984); State v. Roles, 122 Idaho 138, 144, 832 P.2d 311, 317 (Ct.App. 1992). In order for an applicant who was convicted on a guilty plea to meet the prejudice prong, the applicant must show a reasonable probability that but for the attorney's deficient performance, the applicant would not have pleaded guilty. Hill v. Lockhart, 474 U.S. 52, 58 (1985); Ray v. State, 133 Idaho 96, 101, 982 P.2d 931, 936 (1999); Hollen v. State, 132 Idaho 573, 576, 976 P.2d 927, 930 (1999); Menchaca v. State, 128 Idaho 649, 652, 917 P.2d 806, 809 (Ct.App. 1996).
However, at least one of Brown's claims of ineffective assistance of counsel facially withstands the test of frivolousness and calls for appointment of counsel. Brown's application alleges that his attorney was deficient for failing to file "motions in limine." Although the application does not specify what "motions in limine" his attorney should have filed, in an affidavit presented with his application, Brown asserted a violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Brown's affidavit avers that he was interrogated by two police officers at the sheriff's department, that the police gave him no Miranda warning, and that he made at least three requests to contact his attorney, all of which were ignored or denied. Liberally reading the application for post-conviction relief together with the supporting affidavit, it can be inferred that Brown was attempting to plead a claim of ineffective assistance of counsel based upon his attorney's failure to file a motion to suppress the statements that police obtained from Brown through a violation of his Miranda rights. We readily acknowledge that the allegations of Brown's application and affidavit are not sufficient to withstand a motion for summary dismissal on this claim, for Brown has not specifically alleged facts that show he was in custody at the time of the interrogation, which is a prerequisite to entitlement to Miranda warnings, State v. Kuzmichev, 132 Idaho 536, 543, 976 P.2d 462, 469 (1999); State v. Massee, 132 Idaho 163, 164, 968 P.2d 258, 259 (Ct.App. 1998); State v. Doe, 130 Idaho 811, 815-16, 948 P.2d 166, 170-171 (Ct.App. 1997); nor does it indicate that he made any inculpatory statements to the police that should have been addressed in a suppression motion or that, had the statements been suppressed, Brown would not have pleaded guilty. However, these are the very types of deficiencies that a post-conviction applicant could be expected to correct only with the assistance of counsel.
We conclude, therefore, that the district court erred in denying Brown's motion for appointed counsel to assist him with his post-conviction relief action. Because the order summarily dismissing his application was entered without Brown having received the assistance of an attorney to which he was entitled, we must vacate the order of summary dismissal and reverse the order denying Brown's motion for appointment of counsel.
We emphasize that our holding does not preclude the district court from again considering summary dismissal after an attorney has been appointed at public expense to represent Brown on remand. Although Brown's pleading survived the threshold frivolousness test for appointment of counsel, even with the assistance of an attorney he may be unable to present admissible evidence that would make a prima facie showing of entitlement to relief.
The district court's order denying Brown's motion for appointed counsel is reversed, and counsel shall be appointed for Brown on remand. The order summarily dismissing Brown's application for post-conviction relief is vacated, and the case is remanded to the district court for further proceedings consistent with this opinion.
Judge SCHWARTZMAN CONCURS.
I respectfully dissent.
The majority opinion recognizes that Brown's application only generally alleges that his attorney was deficient for failing to file "motions in limine." The majority then goes on, however, to "liberally" read the application and affidavit to "infer" what Brown was apparently "attempting" to do.
Although readily acknowledging that Brown has failed to carry his burden to — (1) specifically allege facts; (2) indicate any inculpatory statements; (3) show that the motion in limine would have been granted and those statements suppressed; and (4) that suppression would have led him to not plead guilty — the majority holds that the district court, nonetheless, committed reversible error in denying Brown's motion for counsel.
I would not place the burden on the district judges, as the majority has done here, to ferret out any allegation that might have some possible merit, and appoint counsel on that particular claim. The legislature, in amending I.C. § 19-4904 in 1993 must have been cognizant of I.C. § 19-852 and the burdens being placed upon the unrepresented inmate/applicant. Still, the majority in this case has essentially changed the statutory "may" back to "shall."
Therefore, I respectfully dissent.