Represented Petitioner Must Object to Preserve Issue of Inadequate Notice

In DeRushe v. State, a post-conviction case, the Supreme Court held that an applicant who is represented must object that the state's motion for summary disposition is not sufficiently specific before that issue may be raised on appeal.


DeRushe filed pro se a post-conviction petition, but was later appointed counsel. The state filed a motion for summary disposition and a memorandum in support. DeRushe responded to the motion with an affidavit. The district court granted the motion.

On appeal, DeRushe argued that the state's motion did not provide adequate notice of the grounds therefore. The Supreme Court held it would not consider the claim because there was no objection below. "In this case, DeRushe was represented by counsel. If the State did not state the grounds of its motion with sufficient particularity, then DeRushe should have raised that issue below. He cannot raise the alleged lack of specificity for the first time on appeal." The Court distinguished DeRushe's case from Brown v. State, a case where the applicant was refused appointed counsel. (The Court also rejected, in dicta, DeRushe's argument about the level of specificity needed.)

The Court also held that the district court did not err by failing to sua sponte take judicial notice of the criminal case. The Court held the district court did not need to take judicial notice because the state's motion to dismiss asserted that DeRushe "had failed to present any admissible evidence showing he was entitled to relief."

Finally, the Court reversed the dismissal of DeRushe's claim that his attorney refused to permit DeRushe to testify at trial. DeRushe supported this claim with facts alleged in the petition and affidavits. The trial court dismissed holding that there was no showing that trial counsel was deficient for failing to have DeRushe testify. The Supreme Court held that the "district court erred in analyzing DeRushe's claim as alleging ineffective assistance of counsel rather than as alleging denial of his constitutional right to testify in his own behalf. A defendant in a criminal proceeding has the right to testify in his own behalf."

Here's a link to the opinion. http://www.isc.idaho.gov/opinions/derushe35116.pdf

Congratulations to Diane Walker of SAPD for the partial remand.

Lessons learned:

1) Object when the state's motion does not meet the specificity requirements, i.e., most of the time;

2) Make sure that the criminal case record is part of the PCP record by submitting via affidavits all portions of the criminal case you want considered and by filing a motion to take judicial notice and by filing a motion for preparation of those portions of the criminal case which were not prepared for the appeal;

3) Plead all facts needed to prevail in the petition, attach affidavits, records or other evidence supporting the allegation when possible or explain why they are not attached.