Sweet v. State

539 P.3d 196

Stanley Phillip SWEET, Petitioner-Appellant,

v.STATE of Idaho, Respondent.

Docket No. 49981

Court of Appeals of Idaho.

Filed: November 1, 2023

Thornton Law Office; Val Thornton, Sandpoint, for appellant. Val Thornton argued.

Hon. Raúl R. Labrador, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent. John C. McKinney argued.

LORELLO, Chief Judge

Stanley Phillip Sweet appeals from a decision of the district court, on intermediate appeal from the magistrate court, affirming a judgment denying his petition for post-conviction relief. Sweet argues the district court erred in affirming the denial of his petition because he proved, by a preponderance of the evidence, that his trial counsel was ineffective in numerous ways.¹ We affirm.

I.FACTUAL AND PROCEDURAL BACKGROUND

In December 2016, a jury found Sweet guilty of domestic battery in the presence of a minor child. Sweet appealed his judgment of conviction to the district court and then this Court, which affirmed in an unpublished opinion. See State v. Sweet , Docket No. 45539, 2018 WL 4201311 (Ct. App. Sept. 4, 2018). Sweet, with the assistance of counsel, subsequently filed a petition for post-conviction relief, alleging numerous ineffective assistance of trial counsel claims. After the State filed a motion for summary dismissal, Sweet filed an amended petition, followed by a second amended petition.² After an evidentiary hearing, the magistrate court denied Sweet's petition for post-conviction relief. The magistrate court found that Sweet failed to meet his burden of proving that he was entitled to relief on any of his post-conviction claims. Sweet appealed to the district court, which affirmed. Sweet again appeals.

II.STANDARD OF REVIEW

For an appeal from the district court, sitting in its appellate capacity over a case from the magistrate court, we review the record to determine whether there is substantial and competent evidence to support the magistrate court's findings of fact and whether the magistrate court's conclusions of law follow from those findings. Pelayo v. Pelayo , 154 Idaho 855, 858-59, 303 P.3d 214, 217-18 (2013). However, as a matter of appellate procedure, our disposition of the appeal will affirm or reverse the decision of the district court. Id . Thus, we review the magistrate court's findings and conclusions, whether the district court affirmed or reversed the magistrate court and the basis therefor, and either affirm or reverse the district court.

In order to prevail in a post-conviction proceeding, the petitioner must prove the allegations by a preponderance of the evidence. I.C. § 19-4907 ; Stuart v. State , 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990) ; Baxter v. State , 149 Idaho 859, 861, 243 P.3d 675, 677 (Ct. App. 2010). When reviewing a decision denying post-conviction relief after an evidentiary hearing, an appellate court will not disturb the lower court's factual findings unless they are clearly erroneous. I.R.C.P. 52(a) ; Dunlap v. State , 141 Idaho 50, 56, 106 P.3d 376, 382 (2004) ; Russell v. State , 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence are all matters solely within the province of the district court. Dunlap , 141 Idaho at 56, 106 P.3d at 382 ; Larkin v. State , 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We exercise free review of the district court's application of the relevant law to the facts. Baxter , 149 Idaho at 862, 243 P.3d at 678.³

III.ANALYSIS

Sweet argues the magistrate court erred in denying his petition for post-conviction relief and that the district court erred in affirming the magistrate court. The State responds that the record and applicable law supports the magistrate court and district court's decisions. We hold that Sweet has failed to meet his burden of showing error in the denial of post-conviction relief and affirm the district court's intermediate appellate decision.

A. Standard Applicable to Sweet's Ineffective Assistance of Counsel Claims

As an initial matter, we address the legal standards applicable to Sweet's ineffective assistance of trial counsel claims in light of Sweet's apparent belief that he is entitled to review of his claims based on a standard other than Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

A claim of ineffective assistance of counsel may properly be brought under the Uniform Post-Conviction Procedure Act. Barcella v. State , 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct. App. 2009). To prevail on an ineffective assistance of counsel claim, the petitioner must prove, by a preponderance of the evidence, that the attorney's performance was deficient and that the petitioner was prejudiced by the deficiency. Strickland , 466 U.S. at 687-88, 104 S.Ct. 2052 ; Self v. State , 145 Idaho 578, 580, 181 P.3d 504, 506 (Ct. App. 2007). To establish a deficiency, the petitioner has the burden of showing that the attorney's representation fell below an objective standard of reasonableness. Aragon v. State , 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988) ; Knutsen v. State , 144 Idaho 433, 442, 163 P.3d 222, 231 (Ct. App. 2007). To establish prejudice, the petitioner must show a reasonable probability that, but for the attorney's deficient performance, the outcome of the trial would have been different. Aragon , 114 Idaho at 761, 760 P.2d at 1177 ; Knutsen , 144 Idaho at 442, 163 P.3d at 231. This Court has long adhered to the proposition that tactical or strategic decisions of trial counsel will not be second-guessed on appeal, unless those decisions are based on inadequate preparation, ignorance of relevant law, or other shortcomings capable of objective evaluation. Gonzales v. State , 151 Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011).

In addition to erroneously asserting that de novo review applies in this case, Sweet repeatedly argues that it is the State's burden to show the errors he alleges regarding trial counsel's performance are harmless. Sweet relies on Rossignol v. State , 152 Idaho 700, 274 P.3d 1 (2012), in support of this assertion. Sweet's reliance on Rossignol is misplaced. In Rossignol , the Court distinguished between two types of post-conviction claims in the context of a defendant's right to testify--one based on ineffective assistance of counsel and one based on the denial of the substantive right to testify. Id . at 703-04, 274 P.3d at 4-5. Which standard applies depends on the type of claim alleged in the petition. If the claim alleges ineffective assistance of counsel, the Strickland standards set forth above apply. If the claim alleges the denial of a fundamental constitutional right, not based on the alleged ineffective assistance of counsel, Strickland does not apply; rather, the substantive law governing the right applies. For the latter, the petitioner has the burden of showing deprivation of the right, after which the burden shifts to the State to show any error was harmless. Chapman v. California , 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ; Rossignol , 152 Idaho at 704, 274 P.3d at 5.

All of the claims alleged in Sweet's petition for post-conviction relief are framed as ineffective assistance of trial counsel claims to which Strickland applies. As such, Sweet is incorrect that the Chapman standard applies to any of his claims and the burden never shifted to the State to prove harmless error.

B. Strickland Prejudice

On appeal, Sweet alleges seven ineffective assistance of counsel claims regarding trial counsel's performance during Sweet's trial. As noted, the prejudice prong of Strickland requires the petitioner to show a reasonable probability that, but for the attorney's deficient performance, the outcome of the trial would have been different. Aragon , 114 Idaho at 761, 760 P.2d at 1177 ; Knutsen , 144 Idaho at 442, 163 P.3d at 231. Because Sweet believes the harmless error standard applies, he failed to argue Strickland prejudice for most of his claims, although he does make some attempt to do so in his reply brief. This Court does not consider arguments raised for the first time in a reply brief. Suitts v. Nix , 141 Idaho 706, 708, 117 P.3d 120, 122 (2005). Accordingly, we only consider arguments related to prejudice included in Sweet's opening brief.

Sweet's first two ineffective assistance of trial counsel claims are related to jury selection--one based on trial counsel's performance during voir dire and one based on the decision to not accept the magistrate court's offer to continue the trial in order to summon additional jurors for the venire. Regarding the prejudice prong of Strickland , Sweet failed to argue, much less prove, that he was prejudiced as a result of trial counsel's alleged deficient performance during voir dire. Instead, Sweet asserts, in conclusory fashion, that trial counsel's "failures to act or to query resulted in a denial of Sweet's right to a fair and impartial jury." The failure to support a claim with argument and authority waives consideration of the merits of the claim on appeal. Powell v. Sellers , 130 Idaho 122, 128, 937 P.2d 434, 440 (Ct. App. 1997).

Regarding the claim that trial counsel was ineffective for failing to accept the offered continuance, Sweet makes several assertions regarding the benefits of a continuance, such as the "opportunity to select from a constitutionally sufficient jury pool," the ability to "obtain the out-of-state witness," and the "possible benefit from the passage of time, loss of evidence and/or witnesses, etc." However, those assertions are conclusory and do not demonstrate, much less prove, there is a reasonable probability the result of the trial would have been different if trial counsel had accepted a continuance. For example, Sweet does not explain how the outcome of trial would have been different if there had been an alternate juror or if he could have...