Thumm v. State

165 Idaho 405

447 P.3d 853

Vance E. THUMM, Petitioner-Appellant,

v.STATE of Idaho, Respondent.

Docket No. 45290

Supreme Court of Idaho, Boise, November 2018 Term.

Opinion Filed: August 22, 2019

Silvey Law Offices Ltd., Boise, attorneys for appellant. Greg S. Silvey argued.

Lawrence G. Wasden, Idaho Attorney General, Boise, attorney for respondent. Mark W. Olson argued.

SUBSTITUTE OPINION. THE OPINION FILED ON FEBRUARY 22, 2019 IS HEREBY WITHDRAWN.

BEVAN, Justice

I. NATURE OF THE CASE

In 2009, a jury convicted Vance Thumm of aggravated battery or aiding and abetting aggravated battery and of being a persistent violator of the law. Thumm pursued a direct appeal, but was unsuccessful. In 2013, through counsel, Thumm petitioned for post-conviction relief. The State responded by filing a motion for summary disposition. The district court eventually granted the State's motion and dismissed the post-conviction petition. Thumm now appeals alleging: (1) ineffective assistance of counsel at trial, sentencing, and on appeal; (2) a Brady violation; (3) prosecutorial misconduct; and (4) cumulative error. We affirm the district court's grant of summary disposition.

II. FACTUAL AND PROCEDURAL BACKGROUND

Vance Thumm, Paris Davis, Frankie Hughes, Jeremy Steinmetz, victim Deven Ohls, and several other people attended an early morning party in a motel room rented by Thumm. At some point during the party Ohls was attacked, allegedly by both Hughes and Thumm. Hughes later admitted to stabbing Ohls in the buttock. After the prolonged attack, Ohls suffered significant bleeding, a concussion, two black eyes, a complex laceration to the lip, a fractured nose, and the stab wound.

The State charged Thumm with aggravated battery under Idaho Code section 18-907 and with being a persistent violator under Idaho Code section 19-2514. Three others, including Thumm's girlfriend, Davis, were also charged in connection to the altercation. Davis was charged with one count of solicitation or destruction, alteration or concealment of evidence under Idaho Code section 18-2603, and one count of accessory to aggravated battery under Idaho Code section 18-907. Following a motion by the State, Thumm's case was joined with that of Hughes and Davis, though Thumm was ultimately tried in a joint trial with only Davis.

Thumm was originally represented by Nick Wollen, a public defender at the Ada County Public Defender's Office. In September 2009, Thumm became dissatisfied with Wollen and retained a private attorney, Virginia Bond, less than two months before the trial. After a four-day trial, the jury found Thumm guilty of aggravated battery and of being a persistent violator of the law.

Following trial, Thumm became dissatisfied with Bond as well, specifically for failing to provide discovery, so Bond withdrew as counsel. The court then appointed Anthony Geddes as Thumm's conflict counsel. On March 10, 2010, the court sentenced Thumm to a unified term of forty years, fifteen of which were determinate.

Thumm timely appealed from the district court's judgment of conviction and also filed a motion for reconsideration of sentence, which was denied by the district court. On August 19, 2013, Thumm, through counsel, petitioned for post-conviction relief. More than three years later the State filed an answer to the petition, a motion for summary disposition, and a motion to take judicial notice of the jury trial and preliminary hearing transcripts and the jury instructions. Thumm's counsel then filed an amended post-conviction petition, to which the State responded. Along with the response, the State also filed another motion for summary disposition, which was granted by the district court on June 16, 2017. Thumm now appeals.

III. ISSUES ON APPEAL

1. Did the district court err in summarily dismissing Thumm's ineffective assistance of counsel claims?

2. Did the district court err in summarily dismissing Thumm's Brady claim?

3. Did the district court err in summarily dismissing Thumm's prosecutorial misconduct claims?

4. Did Thumm demonstrate cumulative error?

IV. STANDARD OF REVIEW

A petition for post-conviction relief initiates a civil, rather than criminal, proceeding. State v. Yakovac, 145 Idaho 437, 443, 180 P.3d 476, 482 (2008). Like the plaintiff in any civil action, the applicant must prove, by a preponderance of the evidence, the allegations upon which the request is based. State v. Abdullah, 158 Idaho 386, 417, 348 P.3d 1, 32 (2015) (citing I.C. § 19-4907 ). The application for post-conviction relief differs from a complaint in an ordinary civil action in that it must contain much more than a short and plain statement of the claim that would suffice for a complaint under Idaho Rule of Civil Procedure 8(a)(1). Id. (citing Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002) ). The application must present admissible evidence supporting its allegations, or it will be subject to dismissal. I.C. § 19-4903.

Idaho Code section 19-4906 authorizes summary dismissal of a post-conviction petition. Summary dismissal of an application is the procedural equivalent of summary judgment under Idaho Rule of Civil Procedure 56. "Summary dismissal is permissible only when the applicant's evidence has raised no genuine issue of material fact that, if resolved in the applicant's favor, would entitle the applicant to the relief requested." Yakovac, 145 Idaho at 444, 180 P.3d at 483.

On review of a dismissal of a post-conviction relief application without an evidentiary hearing, the Court must determine whether a genuine issue of fact exists based on the pleadings, depositions and admissions together with any affidavits on file.

Id. Inferences should be liberally construed in favor of the petitioner. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004). Constitutional issues are purely questions of law over which this Court exercises free review. Abdullah, 158 Idaho at 417, 348 P.3d at 32. "Essentially, the task of this Court ‘is to determine whether the appellant has alleged facts in his petition that if true, would entitle him to relief.’ " Charboneau, 140 Idaho at 792, 102 P.3d at 1111 (quoting Stuart v. State , 118 Idaho 932, 934, 801 P.2d 1283, 1285 (1990) ).

V. ANALYSIS

One who has been convicted of, or sentenced for a crime may petition for post-conviction relief if any one of several statutorily defined conditions is met. I.C. § 19-4901(a). Among those conditions, and relevant here, are whether the conviction or sentence violated the United States constitution or the Idaho constitution, or if the conviction or sentence is subject "to a collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding, or remedy...." I.C. § 19-4901(a)(1), (a)(7).

This remedy is not a substitute for nor does it affect any remedy incident to the proceedings in the trial court, or of an appeal from the sentence or conviction. Any issue which could have been raised on direct appeal, but was not, is forfeited and may not be considered in post-conviction proceedings, unless it appears to the court, on the basis of a substantial factual showing by affidavit, deposition or otherwise, that the asserted basis for relief raises a substantial doubt about the reliability of the finding of guilt and could not, in the exercise of due diligence, have been presented earlier.

I.C. § 19-4901(b).

A. Ineffective Assistance of Counsel

A majority of Thumm's claims involve allegations of ineffective assistance of counsel. Claims for ineffective assistance of counsel are properly raised in a post-conviction setting. See Matthews v. State , 122 Idaho 801, 806, 839 P.2d 1215, 1220 (1992). The right to counsel in criminal actions is guaranteed by the Sixth Amendment to the United States Constitution and Article 1, Section 13 of the Idaho Constitution. Abdullah, 158 Idaho at 417, 348 P.3d at 33 (citing Murray v. State, 156 Idaho 159, 164, 321 P.3d 709, 714 (2014) ). This Court employs the Strickland two-prong test to determine whether a defendant in a criminal case received effective assistance of counsel. Mitchell v. State, 132 Idaho 274, 277, 971 P.2d 727, 730 (1998) (referencing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). Under Strickland, an applicant for post-conviction relief must demonstrate: (1) counsel's performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the outcome would have been different. Strickland, 466 U.S. at 669, 104 S.Ct. 2052. These prongs are known more precisely as (1) deficient performance and (2) resulting prejudice. Id. at 687, 104 S.Ct. 2052.

When evaluating a claim for ineffective assistance of counsel, "this Court does not second-guess strategic and tactical decisions ... unless the decision is shown to have resulted from inadequate preparation, ignorance of the relevant law or other shortcomings capable of objective review." Yakovac, 145 Idaho at 444, 180 P.3d at 483 (citing Pratt v. State, 134 Idaho 581, 584, 6 P.3d 831, 834 (2000) ). There is a strong presumption that counsel's performance was within the range of acceptability, particularly as to things like defense counsel's choice of witnesses, manner of cross-examination, and lack of objections to testimony, which are generally considered to fall within the realm of tactical or strategic decisions. Giles v. State, 125 Idaho 921, 924, 877 P.2d 365, 368 (1994).

1. Improper Joinder Claims.

Thumm argues that his trial counsel were ineffective for failing to oppose the State's motion for joinder of Thumm's and Davis's cases (claim as to Wollen), or, alternatively, for failing to move to sever the cases (claim as to Bond). Thumm maintains that had counsel done so, either the objection or the motion would have been successful, since joinder with Davis's case violated the rule set forth in Bruton v. United States, 391...