Woodward v. State

Page 1254

123 P.3d 1254

142 Idaho 98

Donald L. WOODWARD, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 30295.

Court of Appeals of Idaho.

July 18, 2005.

Review Denied November 22, 2005.

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Nevin, Benjamin McKay, LLP, Boise, for appellant. Dennis A. Benjamin argued.

Hon. Lawrence G. Wasden, Attorney General; Ralph R. Blount, Deputy Attorney General, Boise, for respondent. Ralph R. Blount argued.

LANSING, Judge.

Donald L. Woodward appeals from the denial of his petition for post-conviction relief brought on the ground of ineffective assistance of counsel. Woodward contends that the district court erred in holding that Woodward's defense attorney provided competent representation when he advised Woodward to abandon a motion to suppress evidence and, instead, to accept the State's offer of a plea agreement. We affirm.

I. BACKGROUND

Over a period of years, Idaho State Police detective Vernon Grotjohn periodically received information indicating that Woodward and his adult son, Jason Woodward, were engaged in growing and selling marijuana. In August 2000, after an individual who had been convicted of possession of marijuana told Grotjohn that Woodward and Jason were his suppliers, Grotjohn and other investigators conducted surveillance of Jason's property. That surveillance included the use of a thermal imaging device, which disclosed heat loss from a pole building near the residence. On August 18, Detective Grotjohn applied for warrants to search Woodward's and Jason's homes and associated buildings. The affidavit submitted in support of the warrant application detailed information that Detective Grotjohn had received concerning Woodward and Jason's alleged marijuana operations over a period of years and included the results of the thermal imaging. The requested warrants were issued and, as a consequence of evidence found in the ensuing searches, Woodward and Jason were charged with trafficking in marijuana.

Woodward and Jason hired an attorney to jointly represent them, waiving any potential conflict of interest. In May 2001, their counsel filed a motion to suppress evidence. The motion asserted that the affidavit supporting the search warrant application did not establish probable cause as it was based on stale information and information gained from unlawful thermal imaging. However, at the time set for hearing the motion, Woodward's attorney informed the court that the parties intended to vacate the hearing because plea agreements had been reached.

The plea agreement for Woodward provided that (1) the charge against him would be amended from trafficking in marijuana by possession of greater than 100 marijuana plants to trafficking in marijuana by possession of greater than 25 but less than 50 marijuana plants and, (2) that his sentence would be for two years determinate with eight years indeterminate. The agreement for Jason Woodward provided that (1) the charge against him would be amended from trafficking in marijuana by possession of greater than 100 marijuana plants to possession of marijuana with intent to deliver and, (2) that Jason would be placed on five years probation, serve sixty (60) days in the county jail, and be given a withheld judgment. Woodward and Jason were sentenced consistent with their respective plea agreements.

Woodward thereafter filed a petition for post-conviction relief. The petition alleged that Woodward's defense counsel had been ineffective in advising him that the suppression motion would be unsuccessful and/or in failing to properly pursue a motion to suppress physical evidence found at his and Jason's homes and additional evidence of growing marijuana to which Woodward led officers after his home was searched. Woodward also alleged that statements he made to law enforcement officials were the involuntary products of police coercion that could have been suppressed. According to the petition, Woodward pleaded guilty in order to obtain leniency for Jason, and if shared defense counsel had successfully pursued suppression of the evidence found at Jason's property, Woodward would not have pleaded guilty but would have insisted on going to trial.

The record is not entirely clear as to what evidence Woodward contends would have been suppressed if his lawyer had properly pursued a suppression motion. There were, however, four groupings of evidence that could have been the subject of a suppression motion in the criminal case:

(1) physical evidence found at Jason's residence on execution of the search warrant (124 growing marijuana plants, grow rooms and growing materials);

(2) physical evidence found at Woodward's home on execution of the search warrant (less than three ounces of marijuana);

(3) statements made by Woodward during the execution of the search warrant on his home (admitting that Woodward financed the marijuana-growing operation at Jason's residence and that he and Jason were growing marijuana at four additional locations);

(4) evidence of four additional marijuana patches (total of 44 plants) to which Woodward led the police after the search of his home.

At the evidentiary hearing on Woodward's petition,¹ the attorney who represented Woodward and Jason in the criminal case acknowledged that, at the time he counseled them concerning the guilty pleas, he was not aware of recent decisions of the United States Supreme Court and this Court holding that the use of a thermal imaging device to discern activity within a building constitutes a search for which, in some circumstances, a warrant is required. See Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001); State v. Schumacher, 136 Idaho 509, 37 P.3d 6 (Ct.App.2001). In closing argument at the conclusion of the hearing, Woodward's post-conviction counsel argued that, had defense counsel been aware of these authorities, he would have realized that the thermal imaging information had to be deleted in evaluating the sufficiency of the evidence presented in support of the application for the search warrants and that, absent the thermal imaging information, the remaining evidence presented in the warrant affidavit was insufficient to establish probable cause for a search of Jason's residence.²

The district court found, among other things, that even with the thermal imaging evidence excluded, the warrant affidavit established probable cause for issuance of the warrant on Jason's property. Therefore, the court concluded, Woodward did not demonstrate that his defense counsel was deficient for failing to pursue the suppression motion, and the court denied Woodward's petition for post-conviction relief in its entirety. Woodward appeals.

II. ANALYSIS

One who applies for post-conviction relief bears the burden of proving, by a preponderance of the evidence, the allegations upon which his claim rests. Idaho Criminal Rule 57(c); Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969); Wilbanks v. State, 126 Idaho 341, 345, 882 P.2d 996, 1000 (Ct.App.1994). Where the trial court has rendered findings of fact after an evidentiary hearing on an application for post-conviction relief, the findings will not be disturbed on appeal unless they are clearly erroneous. Idaho Rule of Civil Procedure 52(a). Findings will be deemed clearly erroneous only if they are unsupported by substantial and competent evidence in the record. Whiteley v. State, 131 Idaho 323, 326, 955 P.2d 1102, 1105 (1998); Stuart v. State, 127 Idaho 806, 813, 907 P.2d 783, 790 (1995); State v. Thomas, 133 Idaho 682, 686, 991 P.2d 870, 874 (Ct.App.1999).

The standard for proving a claim of ineffective assistance of counsel was set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), where the Court identified two components that must be proved in order to prevail on such a claim:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. When the alleged ineffective assistance is an attorney's failure to file or pursue a motion to suppress evidence, the court must examine the probability of success of such a motion in order to determine whether counsel's decision against pressing the motion met objective standards of competence. Huck v. State, 124 Idaho 155, 158-59, 857 P.2d 634, 637-38 (Ct.App.1993). If the motion would have been denied because it lacked merit, then counsel would not be deficient, and the accused would not have been prejudiced, by a decision not to pursue the motion. Id. When the conviction is the result of a guilty plea rather than a trial, to prove prejudice "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210 (1985).

A. Whether Probable Cause for the Issuance of the Search Warrant Is Shown after the Illegally Obtained Thermal Imaging Evidence Is Excised

Woodward contends that his defense attorney's advice was flawed because the attorney was unaware that the recent decisions in Kyllo and Schumacher required exclusion of the thermal imaging evidence from the warrant affidavit and, if the attorney had been knowledgeable about the rulings, he would have realized that the remaining evidence in the warrant affidavit was insufficient to show probable cause for issuance of the warrants. The State does not contest Woodward's assertion that the thermal imaging evidence was unlawfully obtained and that the sufficiency of the warrant affidavit therefore must be judged without...