Nielson v. State

DENNIS L. NIELSON, Petitioner-Appellant, v. STATE OF IDAHO, Respondent.

Docket No. 39594

Docket No. 40446

2014 Unpublished Opinion No. 694

COURT OF APPEALS OF THE STATE OF IDAHO

August 25, 2014

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael R. McLaughlin, District Judge.

Judgments dismissing post-conviction actions, affirmed.

Nevin, Benjamin, McKay & Bartlett, LLP; Deborah A. Whipple, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent.

LANSING, Judge

Dennis L. Nielson was convicted of lewd conduct with a minor under sixteen. Nielson challenged his conviction in two post-conviction actions: an original action and a successive action. Both were summarily dismissed. Nielson challenges those dismissals in this appeal. He argues that the district court should not have dismissed two claims: a claim that he was prejudiced by an evidentiary ruling and a claim involving his competency.

I.BACKGROUND

Nielson was charged with lewd conduct with a minor under sixteen, Idaho Code § 18-1508. During most of the pretrial process and during the entire trial, Nielson was represented by counsel. He represented himself, however, for a brief period beginning at a pretrial conference scheduled to determine the admissibility of other misconduct evidence and ending immediately before jury selection.

Pursuant to Idaho Rules of Evidence 404(b) and 609, the State submitted notice of its intent to introduce evidence of Nielson's prior sexual contact with children. Through counsel, Nielson argued that the evidence should not be admitted. The court did not issue its oral ruling until Nielson was again represented by counsel. In its ruling, the court held that Nielson's prior sexual contact with children could be admitted into evidence pursuant to I.R.E. 404(b). It also ruled that his prior sex offense convictions were admissible pursuant to I.R.E. 609. In particular, it found that the State could adduce this evidence if Nielson opened the door to it by testifying.

At various points, Nielson made unsworn statements indicating that he might be mentally ill. In a pretrial conference, he stated that he had "started having psychotic events" and that, as a result of these episodes, he had executed a power of attorney in favor of his wife. He also indicated that he had been held in a mental health facility inside a prison, provided medicine for his mental illness, and discharged from that unit only because he was not a danger to himself or others. On the other hand, he stated that he "never had a psychiatric evaluation." Nielson's counsel unequivocally stated that "there is no question in my mind [Nielson] is competent to proceed today." In response to Nielson's conflicting statements, the court concluded that "Nielson is competent. . . . If there are psychological issues, they have not been demonstrated here."

On the morning before jury selection, Nielson submitted a written motion asserting that he was not competent. He claimed that a doctor had diagnosed him with schizophrenia. The court denied this motion on the basis that Nielson failed to submit any evidence of his mental illness. After the motion was denied, Nielson explained that he did not intend to assert his mental illness as a defense and affirmatively stated that he was not "crazy."

The case proceeded to jury trial, where the State's evidence showed that Nielson manually touched the genitals of his child victim. The State also adduced evidence of flight to show consciousness of guilt. Nielson did not present any evidence. Instead, he argued that the victim was not credible when she reported the touching to one parent two years after the incident. The jury found Nielson guilty, and the court imposed a unified sentence of fifty years with thirty years fixed, to run consecutively to Nielson's sentences in other cases.

Nielson appealed several of the district court's rulings. We addressed each in State v. Nielson, Docket No. 33823 (Ct. App. Aug. 1, 2008) (unpublished). As to several claims of error relating to Nielson's brief period of pro se representation, we held that Nielson failed to showany prejudice and therefore was not entitled to any relief. We also held that the district court did not abuse its discretion by not ordering a psychosexual evaluation or updated presentence investigative report. Finally, we determined that the district court did not abuse its discretion when sentencing Nielson.

Thereafter, Nielson filed a petition for post-conviction relief. It was summarily dismissed, but Nielson appealed that dismissal. While that appeal was pending, Nielson filed a successive post-conviction action. It alleged that Nielson should be allowed to file a successive petition because his attorney in the first post-conviction action was ineffective. On Nielson's motion, the Idaho Supreme Court stayed the appeal of the original post-conviction action, pending a decision on his successive post-conviction action. Thereafter, the successive postconviction action was also summarily dismissed, and Nielson again appealed. The two postconviction appeals were consolidated and are now before this Court.

Nielson argues that the district court erred by dismissing two claims of ineffective assistance of counsel, one for defense counsel's failure to adequately preserve the I.R.E. 404(b) issue for appeal and one for defense counsel's failure to request a competency evaluation.

II.ANALYSIS

A petition for post-conviction relief initiates a civil, rather than criminal, proceeding governed by the Idaho Rules of Civil Procedure. I.C. § 19-4907; State v. Yakovac, 145 Idaho 437, 443, 180 P.3d 476, 482 (2008); see also Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642, 646 (2008). Like plaintiffs in other civil actions, the petitioner must prove by a preponderance of the evidence the allegations upon which the request for post-conviction relief is based. Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002). A petition for post-conviction relief differs from a complaint in an ordinary civil action, however, in that it must contain more than "a short and plain statement of the claim" that would suffice for a complaint under I.R.C.P. 8(a)(1). State v. Payne, 146 Idaho 548, 560, 199 P.3d 123, 135 (2008); Goodwin, 138 Idaho at 271, 61 P.3d at 628. The petition must be verified with respect to facts within the personal knowledge of the petitioner, and affidavits, records, or other evidence supporting its allegations must be attached, or the petition must state why such supporting evidence is not included. I.C. § 19-4903. In other words, the petition must present or be accompanied by admissible evidence supporting itsallegations or it will be subject to dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011); Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994).

Idaho Code Section 19-4906 authorizes summary dismissal of a petition for postconviction relief, either pursuant to a motion by a party or upon the court's own initiative, if "it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." I.C. § 19-4906(c). When considering summary dismissal, the district court must construe disputed facts in the petitioner's favor, but the court is not required to accept either the petitioner's mere conclusory allegations, unsupported by admissible evidence, or the petitioner's conclusions of law. Payne, 146 Idaho at 561, 199 P.3d at 136; Roman, 125 Idaho at 647, 873 P.2d at 901. Moreover, because the district court rather than a jury will be the trier of fact in the event of an evidentiary hearing, the district court is not constrained to draw inferences in the petitioner's favor, but is free to arrive at the most probable inferences to be drawn from the evidence. Yakovac, 145 Idaho at 444, 180 P.3d at 483; Wolf, 152 Idaho at 67, 266 P.3d at 1172; Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). Such inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify them. Chavez v. Barms, 146 Idaho 212, 218, 192 P.3d 1036, 1042 (2008); Hayes, 146 Idaho at 355, 195 P.2d at 714; Farnsworth v. Dairymen's Creamery Ass'n, 125 Idaho 866, 868, 876 P.2d 148, 150 (Ct. App. 1994).

Claims may be summarily dismissed if the petitioner's allegations are clearly disproven by the record of the criminal proceedings, if the petitioner has not presented evidence making a prima facie case as to each essential element of the claims, or if the petitioner's allegations do not justify relief as a matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281 (2010); McKay v. State, 148 Idaho 567, 570, 225 P.3d 700, 703 (2010); DeRushe v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009); Charboneau v. State, 144 Idaho 900, 903, 174 P.3d 870, 873 (2007); Berg v. State, 131 Idaho 517, 518, 960 P.2d 738, 739 (1998); Murphy v. State, 143 Idaho 139, 145, 139 P.3d 741, 747 (Ct. App. 2006); Cootz v. State, 129 Idaho 360, 368, 924 P.2d 622, 630 (Ct. App. 1996). Thus, summary dismissal of a claim for post-conviction relief is appropriate when the court can conclude, as a matter of law, that the petitioner is not entitled to relief even with all disputed facts construed in the petitioner's favor. For this reason, summary dismissal of a post-conviction petition may be appropriate even when the State does notcontrovert the petitioner's evidence. See Payne, 146 Idaho at 561, 199 P.3d at 136; Roman, 125 Idaho at 647, 873 P.2d at 901.

Conversely, if the...