VEENSTRA v. State of Idaho

ALBERT PETE VEENSTRA, III, Petitioner-Appellant,

v.STATE OF IDAHO, Respondent.

Docket No. 35310

No.36838

2011 Unpublished Opinion No. 424

COURT OF APPEALS OF THE STATE OF IDAHO

Filed: April 4, 2011

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Gooding County. Hon. Robert J. Elgee, District Judge.

Orders of summary dismissal of initial and successive post-conviction petitions, affirmed.

Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for appellant. Robyn A. Fyffe argued.

Hon. Lawrence G. Wasden, Attorney General; Jennifer E. Birken, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

SCHWARTZMAN, Judge Pro Tem

Albert Pete Veenstra, III appeals from the summary dismissal of his initial post-conviction action in case number 35310. He also appeals the summary dismissal of his successive post-conviction petition, which he filed while the appeal on the initial post-conviction action was pending, in case number 36858. These cases have been consolidated for appellate purposes.

I. BACKGROUND

The facts of Veenstra's underlying criminal case giving rise to these post-conviction actions are as follows:

In 1999, Veenstra was on probation for a prior felony judgment of conviction. During Veenstra's probation, he was investigated for multiple violations of his probation conditions, including allegations of sexual contact with his minor daughter [Y.V.] and his daughter's minor friend [M.B.]. During the investigation of those crimes, Veenstra submitted to a polygraph test conducted by the police. The results of the test indicated Veenstra was being truthful when he denied having sexual contact with the two victims. Veenstra was not charged with lewd and lascivious conduct with a minor at that time, but was charged with violating his probation. Prior to the evidentiary hearing on the probation violation charges, Veenstra was released from custody. Upon release, Veenstra fled the country. Veenstra lived in Mexico until he was arrested in 2004 and extradited to the United States. Veenstra was then charged with two counts of lewd and lascivious conduct with a minor under sixteen. I.C. § 18-1508.

Prior to the start of trial, Veenstra, through a motion in limine, sought to admit into evidence the results of his polygraph examination. Veenstra argued that the results of the examination should be admitted for the limited purpose of rebutting any assertion made at trial by the state that Veenstra fled the country because he had a guilty conscience over committing the sexual molestations and was afraid of being prosecuted. Essentially, Veenstra suggested that, because he was not charged at that time and the polygraph indicated he was not guilty, he would not flee in fear of those allegations. The district court denied the motion based on the rule that polygraph results are not admissible as evidence.

At trial, the prosecutor argued that Veenstra fled out of fear of prosecution for the instant crimes. After trial, a jury found Veenstra guilty of both charges. Veenstra was sentenced to concurrent unified terms of thirty years, with minimum periods of confinement of fourteen years.

State v. Veenstra, Docket No. 32658 (Ct. App. March 13, 2007) (unpublished). Veenstra appealed his convictions to this Court, arguing that the district court erred in not admitting into evidence at trial the results of his polygraph. Id. The only purpose for admission that Veenstra argued on appeal was to rebut the state's inference that he had fled the country out of fear of prosecution. Id. Veenstra did not argue that the polygraph should have been admitted for substantive evidence of innocence or credibility. Id. This Court did not determine whether the district court erred because we held that any error was harmless. A polygraph admitted for the sole purpose argued on appeal would not have demonstrated innocence or damaged the credibility of the victims and, given the overwhelming nature of the evidence, the result of the trial would have been the same. Id.

Veenstra then filed his first post-conviction petition pro se alleging ineffective assistance of trial and appellate counsel. Veenstra alleged that trial counsel was ineffective because he failed to move for a mistrial after the probation officer, Pat Touchette, referenced a polygraph¹and failed to object to Sheriff Gough's testimony that purported to be an expert opinion regarding delayed disclosure occurring in child sexual abuse victims. Additionally, Veenstra asserted that his appellate counsel was ineffective in failing to raise "substantive issues" on appeal. Both Veenstra, still pro se, and the state moved for summary disposition.

Veenstra then requested, and was granted, counsel. After consulting with Veenstra, counsel filed a brief in support of Veenstra's motion for summary disposition and in opposition to the state's summary disposition motion. Counsel indicated that the brief was intended to supplement rather than modify Veenstra's earlier pro se pleadings and focused on Veenstra's claim that counsel should have moved for a mistrial following the probation officer's reference to that polygraph examination. At oral argument, counsel reiterated that he was not waiving any issues raised in Veenstra's pro se pleadings but would not address all the issues at oral argument. The district granted the state's motion for summary disposition, which Veenstra now appeals in case number 35310.

While this first appeal was pending, Veenstra filed a successive post-conviction petition pro se with the district court. He alleged that deficient representation of his initial post-conviction counsel was a sufficient reason justifying a successive petition. Veenstra then argued that his trial counsel had been ineffective for failing to move in limine to preclude any mention of his prior conviction for sexual acts against his minor niece, refusing to allow Veenstra to testify, and failing to advise him of his privilege against self-incrimination before submitting to a psychosexual evaluation. Veenstra later requested counsel. The district court issued a notice of its intent to dismiss this petition on the basis that the claims are barred as they were not raised in the initial petition and because Veenstra's assertion that his initial post-conviction counsel was deficient is unsupported by the record. Veenstra responded to the notice and requested the district court rule on his request for counsel. The district court denied Veenstra's counsel request because he failed to raise a claim not barred as a matter of law and dismissed the petition. Veenstra now appeals this second dismissal in case number 36838. His cases have been consolidated for appellate purposes.

Veenstra argues on appeal that because his trial counsel failed to request a mistrial or otherwise object to the probation officer's reference to a polygraph and failed to object when the sheriff testified as a child sexual abuse expert, he received ineffective assistance of counsel at trial and the district court therefore erred in summarily dismissing this claim. Veenstra also asserts that because his appellate counsel failed to argue that it was error to not let Veenstra introduce the "Kurz" polygraph as substantive evidence of innocence, especially in light of the probation officer's reference to a polygraph, he received ineffective assistance of appellate counsel and the district court therefore erred in summarily dismissing his claim. In his appeal from the dismissal of his successive petition, Veenstra argues that the district court erred because he has shown deficient representation of post-conviction counsel in failing to raise in the initial petition the claims asserted in his successive petition. Therefore, Veenstra argues, as ineffective assistance of post-conviction counsel is a sufficient reason for raising claims in a successive petition that ought to have been raised in the initial petition, he was not barred from bringing his successive petition and the district court erred in holding otherwise.

II. DISCUSSION

An application for post-conviction relief initiates a proceeding that is civil in nature. Rhoades v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009); State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct. App. 1992). Like a plaintiff in a civil action, the applicant must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. I.C. § 19-4907; Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002).

Idaho Code Section 19-4906 authorizes summary dismissal of an application for postconviction relief, either pursuant to motion of a party or upon the court's own initiative. Summary dismissal of an application pursuant to I.C. § 19-4906 is the procedural equivalent of summary judgment under I.R.C.P. 56. A claim for post-conviction relief will be subject to summary dismissal if the applicant has not presented evidence making a prima facie case as to each essential element of the claims upon which the applicant bears the burden of proof. DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary dismissal is permissible 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 requested relief. If such a factual issue is presented, an evidentiary hearing must be conducted. Goodwin, 138 Idaho at 272, 61 P.3d at 629. Even where the state does not controvert the applicant's evidence, the court is not required to accept either the applicant's mere conclusory allegations, unsupported by admissible evidence, or the applicant's conclusions of law. Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct....