Fundamental Error a No Go in Appeal from Dismissal of Post-Conviction

In Person v. State, filed today, the Court of Appeals declined the invitation to apply the doctrine of fundamental error to consider an issue which had not been raised below in an appeal from the summary dismissal of a petition for post-conviction relief.

Back in 2002, Person entered a conditional guilty plea to second degree murder. On appeal, the Court of Appeals found that portions of statements he made during police interrogation should have been suppressed. On remand, he entered a binding guilty plea wherein it was stipulated that the PSI would be waived and that the state would recommend a 15-50 year sentence. No new PSI was prepared and the recommended sentence was imposed.

Unfortunately, about a month later, the District Court denied Person's motion to either have copies of the original PSI returned from DOC or redacted to exclude the suppressed statements. And, the denial was affirmed on appeal.

Person then filed a pro se petition for post-conviction relief arguing that he had received ineffective assistance of counsel in the entry of the second guilty plea, resulting in an invalid plea. Counsel was appointed and the petition was dismissed as time-barred.

On appeal, we argued that fundamental error occurred when a discovery exception was not sua sponte applied to find that the petition was not time-barred. The Court of Appeals said, "No thank you" to that.

The Court of Appeals stated that while the fundamental error doctrine does apply in the direct appeal of a criminal proceeding, it was not going to apply it to a decision of a trial court in a post-conviction relief action.

The take-away lesson is that in post-conviction, all possible arguments need to be raised first in the District Court. Fundamental error is not going to be a fail safe.

Read the opinion at: http://www.isc.idaho.gov/opinions/Person,%20Mark%20A..pdf