Estrada Post-Conviction Case – Important Guidance for PC Counsel

Yesterday, the Court of Appeals issued a substitute opinion in Esquivel v. State, which offers two lessons of importance. First, it reiterates what is needed to prove up an Estrada claim in post-conviction. And, second, it eliminates any possibility of an appellate court taking judicial notice of prior proceedings in a case on appeal.

Esquivel was convicted of three counts of lewd conduct. As part of sentencing he was ordered to undergo a psychosexual evaluation. However, he was never advised that he had Fifth Amendment rights relative to the evaluation, thus creating an Estrada violation. (Estrada v. State, 143 Idaho 558, 149 P.3d 833 (2006), holding that trial counsel renders deficient representation when he/she fails to advise defendants of Fifth Amendment rights in submitting to a PSE.) In post-conviction, the district court held, contrary to statements it made at sentencing, that there was no prejudice from the violation because the court did not consider the PSE in imposing sentence.

Hughes v. State, 148 Idaho 448, 224 P.3d 515 (Ct.App. 2009), was decided after appellate briefing in Esquivel, but was applied to the case. Hughes holds that three factors are to be considered in determining whether an Estrada violation was prejudicial: 1) Whether the PSE was materially unfavorable (if not, game over, no prejudice); 2) the extent of the sentencing court’s reliance on the PSE; and 3) the totality of the evidence before the sentencing court.

Because Hughes was not the law when Esquivel’s case was before the District Court, PC counsel did not include the PSE as an exhibit. Thus, the Court of Appeals held, it would assume that the PSE was not unfavorable and that prejudice did not result from the Estrada violation.

First Lesson: If you have an Estrada claim in post-conviction, you must put the PSE as well as the sentencing transcript and the PSI and any other material before the sentencing court into evidence before the district court in post-conviction. Don’t assume that just because the post-conviction judge was also the trial and sentencing judge that you don’t have to put these items into evidence as exhibits on post-conviction. If you don’t put them in, you absolutely cannot prove prejudice.

Second Lesson: REALLY REALLY IMPORTANT IN EVERY POST-CONVICTION CASE – Hidden in plain sight or not so plain sight, in footnote 3, the Court of Appeals sets out very strict rules regarding post conviction and appellate records – rules you simply cannot break. A post-conviction case is not an extension of the prior criminal case. Therefore, nothing from the prior criminal case is before the post-conviction court unless it is entered as an exhibit. “Exhibits, as well as transcripts of the pre-trial proceedings, the trial, and sentencing hearing in the criminal case, even if previously prepared as a result of a direct appeal or otherwise, are not before the trial court in the post-conviction proceeding and do not become part of the record on appeal unless presented to the trial court as exhibits or unless the trial court takes judicial notice of such records from the criminal case.” Even if the district court reviews such materials, if the items were not made exhibits in the post-conviction case or if the district court did not, on the record, take judicial notice of them, they will not be considered on appeal. Further, on appeal, the items will only be considered if they have been designated in accord with IAR 28 or augmented by motion pursuant to IAR 30.

This is going to come up a lot. The rule for creating the record is, of course, applicable to and important in even post-conviction case, but I can see at least three situations right now where it’s going to be much in play. 1. Estrada cases like this one. 2. DeRushé cases. 3. Padilla cases. In all of these cases, you may have a clear error – there was no advice of Fifth Amendment rights, the client was not allowed to testify, a plea was entered without advisement of immigration consequences, but if you don’t put the whole trial or plea records, including all transcripts, PSEs, and PSIs into evidence before the district court, you can’t prove up your claim and you can’t get relief on appeal.

You can read Esquivel at http://www.isc.idaho.gov/opinions/Esquivel,%20Carlos%20-%20Sub.pdf