November Argument Preview

The Court is going to hear argument in three criminal cases in November. The following summaries are taken in large part from the Supreme Court's press releases but have been modified. The full press releases can be found at: http://www.isc.idaho.gov/scterms.htm

November 5, at 10:00 (Twin Falls): State v. Wegner.

This is a case involving a question of adult court jurisdiction over a juvenile and when the lack of jurisdiction may be asserted. A juvenile petition was filed against the appellant, charging him with two counts of lewd conduct with a minor under the age of sixteen. The charging periods included time when the juvenile was 13 and 14 years old. Juvenile jurisdiction was waived and he was charged as an adult. He later entered guilty pleas but never admitted that he was 14 at the time of the offenses. He appealed, but the judgment and sentence was affirmed.

Two and one-half years later, he filed a pro se motion to withdraw guilty plea under I.C.R. 33(c), arguing that the adult court did not have jurisdiction over him because lewd conduct is not one of the offenses for which 13 year olds can be tried as adults. The district court denied the motion believing that that it lacked jurisdiction. On appeal, he argues that the district court had jurisdiction to consider his Rule 33 motion, and that the district court did not have jurisdiction to enter judgment and sentence him as an adult.

November 9 at 11:10 (Boise): Melton v. State.

This is an appeal from an order summarily dismissing a successive petition for post-conviction relief. Appellant was convicted and sentenced for lewd conduct and his sentence was affirmed on direct appeal. He then filed a post-conviction petition which was denied. His appeal was eventually dismissed. Thereafter, appellant filed a successive petition alleging that his post-conviction counsel in the previous proceeding had failed to properly apprise the district court of the claims intended to be asserted and failed to present the necessary evidence to prove those claims. The district court summarily dismissed his successive petition, presumably for being untimely.

On appeal, he argues that the district court erred in summarily dismissing his successive petition because the failure to fully develop the claims in his first post-conviction should be excused due to deficient performance on the part of post-conviction counsel. Further, the district court erred by failing to rule upon his motion for appointment of counsel.

November 12 at 8:50 (Boise): Stuart v. State.

This is an appeal from a district court’s dismissal of a fourth petition for post-conviction relief.

Appellant was convicted in 1982 of murder and was sentenced to death. The conviction was affirmed during the combined post-conviction/direct appeal procedure unique to capital cases. During the trial, direct appeal, and his first petition for post-conviction relief, Stuart was represented by the same attorney. Appellant later filed this successive post-conviction petition which was dismissed by the district court as untimely under I.C. § 19-2719.

Appellant argues that statute is inapplicable as it cannot be applied retroactively to his case for several reasons. Further, since I.C. § 19-2719 does not apply, the district court erred in summarily dismissing his petition.

More Than Citation to Supplemental Authority is Required to Present Argument on Appeal

Yesterday, the Supreme Court affirmed a Violent Sexual Predator designation even though it had previously declared the VSP designation process unconstitutional in Smith v. Sexual Offender Classification Bd., 146 Idaho 822, 203 P.3d 1221 (2009).

Evan Morgan pleaded guilty to lewd and lascivious conduct with a minor and to possession of sexually exploitative material. After Morgan received a tentative parole date, the SOCB designated him as a VSP. Morgan appealed to the district court.

In the district court, Morgan was given access to a summary of the information that the SOCB relied on in making its decision, but he also filed a motion seeking access to the actual documents reviewed by the SOCB. The district court denied Morgan’s request and upheld the designation. Morgan appealed. The Court of Appeals affirmed, but the Supreme Court sua sponte granted review of the decision of the Court of Appeals.

Presumably the sua sponte review order was done in light of the Smith case, which was pending before the Court. About three months after acceptance of review, the Court issued Smith, which held that the SOR Act is constitutionally infirm in part because it denies offenders access to the full record relied upon by the SOCB and instead allows access only to the summary of that information. "Unlike the offender in Smith, however, Morgan did not advance a constitutional claim before the district court." Moreover, "Morgan did not file a brief with this Court following our sua sponte grant of review from the decision of the court of appeals." Instead, he submitted a letter citing Smith as additional authority. This letter, the Court held, did not "cure Morgan’s waiver of constitutional claims."

The Supreme Court then rejected Morgan's non-constitutional argument that he should have received the original documents. It also held that, even though Morgan is confined to a wheelchair, there was still substantial evidence to support the VSP designation.

Morgan v. Sexual Offender Classification Board, http://www.isc.idaho.gov/opinions/Morgan%20v.%20SOCB,%2035913.pdf

Rhoades Redux

Last week, the Court found that a successive petition for post-conviction relief in a capital case was untimely. The petition was based upon the discovery of exculpatory biological evidence relating to the capital murder case. (See 10/19/09, SCOIDBlog "Discovery of Exculpatory Evidence . . . Came Too Late . . .")

A similar petition was filed in the client's non-capital murder case. As the state consistently argued that the same person was responsible for a series of three murders, the exculpatory evidence as to one murder was exculpatory as to the other two. Today, the Court dismissed that petition too.

Before doing so, the Court reaffirmed "the standard expressed in Charboneau [v. State] in order to determine whether equitable tolling is appropriate." In Charboneau, the Court recognized that rigid application of I.C. § 19-4902 would preclude courts from considering "claims which simply are not known to the defendant within the time limit, yet raise important due process issues." Such claims, however, must be filed within a reasonable amount of time. And, the Court, in determining what a reasonable time is for filing a successive petition, "will simply consider it on a case-by-case basis, as has been done in capital cases." Charboneau, 144 Idaho at 905, 174 P.3d at 875.

The Court noted Charboneau was consistent with prior Court of Appeals cases finding equitable tolling where the petition has been denied the due process right of meaningful access to the courts. The COA cases are a bit different, in my view, because they deal with whether the petitioner was prevented from filing the post-conviction due to an impairment of his access to the courts. This analysis does not focus on the type of claim raised. Thus, combining Charboneau with the COA cases, equitable tolling would seem to exist when the petitioner is prevented from raising the claims either due to a lack of meaningful access to the courts or when there is a claim raising an important due process issue which was not and could not have been known earlier.

The Court then found that petitioner's claims (prosecutorial misconduct, actual innocence, ineffective assistance of counsel, and a request for DNA testing) either did not raise important due process issues sufficient to trigger equitable tolling or that the claim had not been adequately supported by the facts and claims in the pleadings.

The Court did not decide the question of whether there is a free-standing post-conviction claim for actual innocence. It wrote: "We need not and do not decide today whether due process requires a free-standing actual innocence exception to the application of I.C. § 19-4902."

Finally, and perhaps most importantly for day-to-day post-conviction practice, the Court made clear that attorneys fees and costs could be awarded in post-conviction cases on appeal. "Idaho Appellate Rule 40 provides that '[c]osts shall be allowed as a matter of course to the prevailing party unless otherwise provided by law or order of the Court.' " Noting that a petition for post-conviction relief is a civil matter, the Court awarded costs to the state, but declined to award attorneys fees as "the standard for equitable tolling has never been clearly spelled out and its application to many of the issues raised by Rhoades is a matter of first impression for this Court."

Rhoades v. Fisher, http://www.isc.idaho.gov/opinions/Rhoades%20v.%20State,%2035021.pdf

Alert: Two New Rules Affecting Parental Termination Appeals

Debi Presher, the Executive Director of IACDL, received the following e-mail regarding changes to the Idaho Appellate Rules in Parental Termination cases. I added the emphasis in the text:


Dear Ms. Presher,

On July 1, 2009, the Idaho Supreme Court amended the appellate rules and added two new rules addressing appeals in cases involving the termination of parental rights or an adoption. I.A.R. 11.1 provides that an appeal in these cases must go to the Supreme Court rather than the district court. The rule further provides that all time frames for these appeals, including the notice of appeal, shall proceed in an expedited manner pursuant to another new rule, I.A.R. 12.2. The result is that the notice of appeal in these cases must be filed within 14 days of the magistrate decision. A notice of cross-appeal must be filed within seven days from the notice of appeal. There have already been several appeals that have been dismissed as untimely for failure to follow this jurisdictional time limit.


I am planning to send out a reminder email to public defenders, who handle the majority of termination cases, but know that I may not reach all of them. I am hoping that as Executive Director of the Idaho Association of Criminal Defense Lawyers you might be able to send this message out to your membership as a reminder as well.

Your help is much appreciated.

Cathy Derden
Staff Attorney
Idaho Supreme Court

Valley Co. Public Defender Update

The Fourth District Administrative Judge has set up a committee to screen the public defender applications. Rob Chastain (criminal defense attorney and, until recently, the Boise Co. Public Defender), Jay Rosenthal (former Ada Co. Prosecuting Attorney and Deputy Attorney General), and Alan Trimming (the venerable Ada Co. Public Defender) are the committee members.

There have also been some interesting additions to the applicants including Mark Mimura of Mimura Law Offices. You may remember that MLO took over the Canyon Co. PD contract and is also the Gem Co. Public Defender. Perhaps Mark is looking to fulfill the long-time goal of having a state public defender system by increasing his firm one county at a time. (Mark: If you get Valley, grab Owyhee and Idaho Counties and your empire will run without interruption from Montana to Nevada!)

MLO has also been in the local news recently, as Randy Groves, the Kuna City Attorney, announced he was resigning to join Team Mimura. Randy used to be a Boise City Attorney.

http://www.idahostatesman.com/localnews/v-print/story/941854.html

Curiously, MLO personnel is chock-full-of-former-prosecutors, some of whom actually worked for the Canyon County Prosecutor's Office. At the same time, many fine criminal defense lawyers from Wiebe & Fouser were not hired by MLO. Now, I know that the criminal defense bar has many members who once, in their misguided youth, perhaps, were prosecuting attorneys. I also know that Sun Tzu advises us to "know your enemy." But "be your enemy" is a new one on me.

Death Penalty Information Center Releases New Study on Cost of Death Penalty

The Death Penalty Information Center has released a study titled "Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis." According to the DPIC, "the report combines an analysis of the costs of the death penalty with a newly released national poll of police chiefs who put capital punishment at the bottom of their law enforcement priorities." The text of the study can be found at http://www.deathpenaltyinfo.org/. If you are short on time and looking for a brief summary, you can find one at: http://www.cnn.com/2009/CRIME/10/20/death.penalty/index.html.

Discovery of Exculpatory Evidence by Federal Habeas Counsel Came Too Late to File Successive State Post-Conviction in Capital Case

The Court held today that a successive state post-conviction filed in a capital case by federal habeas counsel after their expert alerted them to exculpatory biological evidence was too late. "A defendant filing a successive petition must show the existence of an issue that he could not reasonably have known of and support the petition with new material facts. I.C. § 19-2719(5)."

The court first found that trial counsel, who had expert assistance, should have realized the importance of the evidence prior to trial. Second, it found the biological evidence was not conclusive evidence of actual innocence and the test results were not material.

Accordingly, the Court dismissed the appeal. Rhoades v. State, http://www.isc.idaho.gov/opinions/Rhoades..pdf

An Illegal Sentence Must be Illegal on its Face In Order to Get Rule 35 Relief

Michael Clements filed an I.C.R. 35 motion to correct an illegal sentence. He argued that the two weapon enhancements imposed were illegal because both shootings arose from the same indivisible course of conduct under I.C. § 19-2520E. The district court agreed and resentenced him. The State appealed and today the Supreme Court reversed, finding that "the district court lacked authority under Rule 35 to examine the underlying facts of Clements's case."

The Court held that "the interpretation of 'illegal sentence' under Rule 35 is limited to sentences that are illegal from the face of the record, i.e., those sentences that do not involve significant questions of fact nor an evidentiary hearing to determine their illegality."

State v. Clements, http://www.isc.idaho.gov/opinions/clements%20final%20opn.pdf

Mr. Clements pleaded guilty to second-degree murder with a firearm enhancement for the death of Mary Ellen Johnson and attempted second-degree murder with a firearm enhancement for the shooting of Lori Anne Oakes. Perhaps the result here would have been different had he gone to trial and there was a record which clearly established the shootings arose from the same indivisible course of conduct. In that case there would not be significant questions of fact and no evidentiary hearing would be required.

Important Post-Estrada Case

The COA issued its opinion in Hughes v. State today. It's 31 pages long and will take some time to digest. Here's a link for those who want to start chewing on it. http://www.isc.idaho.gov/opinions/hughes%20opinion.pdf.

In short the Court rejects or avoids numerous claims of ineffective assistance of counsel. In particular, the petitioner alleged IAC for: 1) failing to be present during the Psychosexual Evaluation; 2) failing to move to suppress the PSE because the polygraph results, which were incorporated therein, were obtained in violation of the Fifth Amendment right to counsel; 3) failing to ensure that he received Miranda warnings prior to his participation in the PSI; 4) failing to obtain an independent, confidential PSE evaluation prior to sentencing; 5)failing to move to suppress the results of the polygraph test; and 6) failing to advise Hughes regarding his rights relative to the PSE.

The court rejects #1-3 and 5. It does not reach the issue in #4 because the trial counsel asked for an independent evaluation and the trial court's refusal to authorize one should have been raised on direct appeal.

As to #6, the Court sets out a new test on how to analyze whether the petitioner was prejudiced in an Estrada IAC claim. The COA writes:

"We turn to the question of how the Strickland prejudice prong should be applied with regard to the unique circumstances of a PSE. We conclude that there are three essential factors which make up the prejudice determination in this context. The first factor is whether the content of the PSE itself is materially unfavorable. The PSE should be reviewed to determine the extent and harmful character of statements and admissions made by the applicant and the conclusions of the evaluator based upon those statements and admissions to determine the level of negativity, if any. If the PSE is not materially unfavorable, then the second prong of the Strickland standard has not been met. If the PSE is materially unfavorable to the applicant, the level of its negativity will then be weighed with two additional factors. The second factor is the extent of the sentencing court‟s reliance on the PSE if it can be demonstrated from the record. The third factor is the totality of the evidence before the sentencing court." (Emphasis added.)

The Court applied these factors and concludes there was no prejudice in Hughes's case.

There will be "Further Thoughts" on this case in a day or two.

DeLorean, We Hardly Knew Ye

The Associated Press reports that a Portland man was sentenced to two years of probation, a psychological examination and community service for battering his ex-girlfriend and impaling her pet fish.

Here's the sad part: According to court records, the human victim, Harris, had broken up with the defendant, Fite, but Fite returned to Harris's apartment saying he wanted to get back together. When Harris tried to leave, Fite shoved her against a wall, grabbed her hair and tossed her against a bathtub.

Here's the creepy part: "When she later returned to the apartment she found her fish - a bright purple beta named 'DeLorean' - on the wood floor with a knife through it."

Here's the confusing part: Fite confessed to killing DeLorean saying, "If she can't have me, then she can't have the fish."

Here's the funny part: "Prosecutor Eric Zimmerman told Judge Eric Bergstrom that Harris plans to get a memorial tattoo of the fish and wanted Fite to pay for it."

Here's the denouement: The judge declined to make Fite pay for the tattoo. He did order Fite to stay away from Harris, but said he could have contact with fish.

Real instances of domestic violence are not funny, but the prosecutor's argument about the memorial tattoo is hilarious. But why stop there? How about making Fite pay for an eternal flame to be placed at the Oregon Coast Aquarium in DeLorean's memory? Or maybe we should make him organize an annual 5K fun run to raise awareness of violence against aquatic creatures? That'd serve him right after making that crazy confession.

Admission of Preliminary Hearing Transcript at Trial Did Not Violate the Confrontation Clause

Mantz was charged with aggravated assault by intentionally firing a handgun near the head of Karl Hoidal and by verbally threatening him. "Hoidal testified at the preliminary hearing; however, prior to trial Hoidal died in an unrelated accident." The trial court permitted the audio recording of Hoidal's testimony be played to the jury at trial over a confrontation clause objection. Mantz was found guilty by the jury and appealed.


The COA affirmed the conviction finding no confrontation clause violation, holding that "preliminary hearing testimony is admissible as long as the defendant had an adequate opportunity to cross-examine which is determined on a case-by-case basis."

The COA then found that the opportunity to cross-examination was adequate noting that
"[d]efense counsel questioned Hoidal as to the accuracy of his story, underage drinking, desire for an adventure, ability to recall the events of the evening due to alcohol consumption, and motive due to the pressure he was under from his parents and the DUI." Further, "Mantz had approximately two months in which to prepare for his cross-examination of Hoidal. Thus, Mantz was represented by counsel who engaged Hoidal in full and effective cross-examination as to his truthfulness, bias, memory, and motive."

Further, the COA found that Mantz was not significantly limited in his cross-examination. In particular, defense counsel was allowed unrestricted time to cross-examine. And there was no proffer at the trial of "any new and significantly material line of cross-examination that would have been developed at trial that was not touched upon in the prior cross-examination."

State v. Mantz, http://www.isc.idaho.gov/opinions/mantz%20opinion.pdf

This is another example of why it is important to make a record below. Since the COA adopted a case-by-case approach, the particular facts which make the opportunity to cross-examine inadequate in your case must be established. So, be sure to complain about everything which restricts your cross-examination at the prelim and when the magistrate gives you the evil eye tell her that Mantz is making you do it.

In another aggravated assault case involving a pistol, the COA found the court correctly instructed the jury that the state had to prove the defendant 1) fired the pistol, 2) with the specific intent to threaten the victims. It was incorrect, however, to also give a definition of general intent which the jury could have read as saying that it need only find an intent to fire the pistol. No need to reverse the conviction though as the error was harmless.

State v. Hansen, http://www.isc.idaho.gov/opinions/hansen%20opinion.pdf

Ada County Prosecutor Reveals Brady Material

Remember how I was complaining (ok - whining) about "How Come Prosecutors Don't Get Brady?" (SCOIDBlog April 28, 2009) Well, to my surprise and delight there was some Brady/Giglio material in this morning's mail courtesy of the Ada County Prosecuting Attorney.

"It has come to our attention that Detective Mike Babbit has separated from employment with the Garden City Police Department. An internal investigation revealed that Detective Babbit made false statements in a police report during a pending investigation. That investigation was not submitted to the prosecutor's office for review. Detective Babbit indicated in that police report that he had followed up on certain investigative leads in that case when in fact he had not pursued those leads. He then closed out that case as inactive. That case has been reassigned to another detective."

In July, the prosecutors sent out this disclosure.

"It has come to our attention that Officer Tony White has separated from employment from the Boise Police Department. The Boise Police Department has issued sustained departmental policy violations against Tony White for non-conformance to laws and conduct unbecoming an officer. The sustained violations are based upon an internal investigation, which disclosed sufficient evidence to conclude that Officer White failed to register his vehicle in Idaho as required by law, failed to timely pay sales tax on the vehicle, and attempted to protect the asset from seizure during an IRS audit. During the proceeding regarding the internal investigation, Officer White gave inconsistent statements."

All those other defendants who have Mr. Babbit or Mr. White involved in their cases should receive a similar disclosure. Also, those who don't practice in Ada Co., please be on the lookout for new hires at your local police department as these two may be looking for a new situation.

Kudos to the prosecutors who followed the Constitution in these cases.

No New Criminal Law Opinions Today, So Here's a Nice Poem

Fire and Ice

by Robert Frost

Some say the world will end in fire,

Some say in ice.

From what I've tasted of desire

I hold with those who favor fire.
But if it had to perish twice,

I think I know enough of hate

To know that for destruction ice
Is also great and would suffice.

Time to Abandon Public Defender Reimbursements?

Here's an excerpted abstract of an article published in the Fall 2009 University of Michigan Journal of Law Reform. (My wife and I went to law school with the author and we all practiced law together for several years.) This will be a great resource for anyone who is thinking about challenging public defender reinbursements.


Penalizing Poverty: Making Criminal Defandants Pay For Their Court-Appointed Counsel Through Recoupment and Contribution
Helen A. Anderson

"Over thirty years ago the United States Supreme Court upheld an Oregon statute that allowed sentencing courts, with a number of important procedural safeguards, to impose on indigent criminal defendants the obligation to repay the cost of their court appointed attorneys. The practice of ordering recoupment or contribution (application fees or co-pays) of public defender attorney's fees is widespread, although collection rates are unsurprisingly low. Developments since the Court's decision in Fuller v. Oregon show that not only is recoupment not cost-effective, but it too easily becomes an aspect of punishment, rather than legitimate cost-recovery. In a number of jurisdictions, defendants are ordered to repay the cost of their attorney regardless of their ability to pay and without any notice or opportunity to be heard. Many are ordered to pay as a condition of probation or parole, which means they pay under threat of incarceration. In these jurisdictions, recoupment violates the Sixth Amendment, as well as the Due Process and Equal Protection Clauses. . . . In addition, the thirty years since Fuller have verified that recoupment is bad policy because it imposes punishing debt without real fiscal benefit. It is time to abandon practices that penalize defendants for being poor and exercising their right to counsel."

Congratulations Professor Anderson on being awarded tenure!

State Breaches Plea Agreement by Opposing Rule 35 Motion When it Agreed to be Bound to Sentencing Recommendation

The Court issued an opinion today in a Harboring a Fugitive case where the plea agreement provided, in part, that:

"The State and Defendant agree to be bound to following sentencing agreement:
-- that Defendant be granted a Withheld Judgment;
-- that no jail time be imposed;
-- that Defendant be placed on probation for a term at the court's discretion."

At sentencing, the state was good to its word. However, some police officers who were injured by the fugitive the defendant was harboring (defendant's husband who was killed by the police), made victim impact statements and told the judge that the defendant should go to prison. The judge agreed and sentenced the defendant to five years with three fixed. The defendant then filed a Rule 35 motion which the state argued against. The motion was denied.

On appeal, the Supreme Court held: 1) the charging document was adequate to confer jurisdiction on the court; 2) the court did not abuse its discretion in finding the officers were victims; 3) the police officers were not bound by the prosecutor's sentencing recommendation because their statements were made as victims and not as state agents, but that 4) the prosecutor breached the plea agreement by opposing the Rule 35 motion.

"The somewhat unusual language of the plea agreement, '[t]he State and Defendant agree to be bound to following sentencing agreement,' dictates our conclusion that the agreement was breached. The significance of this language is that the State was not simply bound to the agreed-upon recommendation at [defendant's] sentencing, but the broad language represents an unqualified commitment by the State to adhere to the sentencing recommendation at every stage of the proceedings. Consequently, the State was bound to the recommendation in the plea agreement at the Rule 35 hearing."

Read the opinion at: http://www.isc.idaho.gov/opinions/Lampien%20Opinion.pdf

A Private Postage-Meter Mark is Not a Postmark

As SCOIDBlog looks at things from a "criminal defense point of view," we don't get too worked up about civil cases. That's true even when the appellants are Hollywood stars, like yesterday's opinion involving Tom Hanks, Rita Wilson (the stars) and a Sun Valley construction company (not a star). (Spoiler alert: They can all go to arbitration now.) But today there is an interesting issue in a civil case which might have an effect on criminal law practitioners who dabble in other areas. Smith v. Idaho Department of Labor, http://www.isc.idaho.gov/opinions/Smith%20v.pdf

The Department of Labor found that Boise attorney and local legend V.K. Smith, Jr. "willfully failed to file a fourth quarter 2007 Idaho Employer's Quarterly Insurance Tax Report." On the last day to file a notice of appeal, V.K. "sent a notice of appeal by mail and by facsimile. Smith sent the facsimile at 5:22 on May 15, 2008, and the Commission received Smith's appeal by mail on May 28, 2008. The envelope arrived with a private-postage-meter stamp dated May 15, 2008, but also bore a U.S. Postal Service (USPS) backstamp from Watson, Pennsylvania, dated May 20, 2008." The Commission held the appeal was not timely and V.K. appealed.

The Supreme Court affirmed the dismissal. In reviewing cases, the Court wrote: "Read together, these cases require that, in the absence of a USPS postmark, an applicant must provide evidence from the USPS to verify that the mailpiece was sent on a particular day. The USPS routinely postmarks stamped mail but does not ordinarily postmark metered mail. Thus, to ensure that a mailed notice is timely filed, parties should always either use an ordinary postage stamp to ensure that the mailpiece is postmarked or specifically request a postmark on metered mail to verify when the USPS took custody." (Emphasis added.)

Two thoughts immediately come to mind. First, there is no rule requiring you to file your notice of appeal on the last day. Second, this USPS postmark rule doesn't apply to notices of appeal which require the physical filing in the clerk's office, e.g., notices in criminal cases. (The Industrial Commission has a rule that "filing" occurs when the appeal is mailed.)