Fetterly v. State

825 P.2d 1073, 121 Idaho 417, 1991 Ida. LEXIS 184

• Court: Idaho Supreme Court
• Decided: December 19, 1991
• Docket: 18966
• Status: Published

Opinions

McDEVITT, Justice.

This case arises from the murder of Sterling Grammer. Donald Kenneth Fetterly was convicted of first degree murder and was sentenced to death. Fetterly appealed his death sentence, and this Court affirmed. State v. Fetterly, 109 Idaho 766, 710 P.2d 1202 (1985), cert. denied, 479 U.S. 870, 107 S.Ct. 239, 93 L.Ed.2d 164 (1986). He then filed a petition for post-conviction relief in the district court. The district court denied relief and this Court affirmed. State v. Fetterly, 115 Idaho 231, 766 P.2d 701 (1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3262, 106 L.Ed.2d 607 (1989). Subsequently, federal habeas relief was denied. Fetterly v. Paskett, 747 F.Supp. 594 (D.Idaho 1990). Finally, the petitioner-appellant filed a second petition for post-conviction relief in the district court on June 15, 1990.

In the second petition, the petitioner-appellant argued that the district court, in the sentencing phase of his trial, did not weigh the mitigating circumstances against the aggravating circumstances in accordance with this Court’s holding in State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989). The State did not file a responsive pleading to this second petition. On June 26, 1990, petitioner-appellant filed an amended second petition for post-conviction relief. In it, petitioner urged as reversible error the fact that the sentencing judge considered evidence relating to the petitioner-appellant that the judge had been exposed to during the trial of the petitioner-appellant’s co-defendant, Karla Yvonne Windsor. The State did not file a responsive pleading to this amended second petition.

The petitioner-appellant filed a motion for summary disposition pursuant to I.C. § 19-4906(c). It was based upon “the State’s failure to respond to the Petition” within thirty (30) days after the docketing of the petition, as required by I.C. § 19-4906(a). Petitioner also filed a notice of non-filing which stated:

COMES NOW the Petitioner, by and through his undersigned counsel of record, and hereby gives notice to Court and counsel that no additional affidavits in support of the Petition will be filed at the present time because Petitioner feels that the issues are fairly presented by the Petition, and the sworn statements found therein are sufficient to put the matter in issue.

The district court dismissed the second petition without providing any notice of its intent to do so. The petitioner-appellant then filed a notice of appeal on October 9, 1990.

The petitioner-appellant urges this Court to find reversible error in the State’s failure to respond to the petition within thirty (30) days of docketing and in the district court’s failure to provide twenty (20) days notice of its intent to summarily dismiss his petition. It is clear that I.C. § 19-4906(a) requires the State to respond within thirty (30) days of docketing. The purpose of this requirement is to properly frame any factual and legal issues before the district court so that it can make an intelligent ruling. Cherniwchan v. State, 99 Idaho 128,130, n. 2, 578 P.2d 244, 246, n. 2 (1978). However, based upon the record before the district court, we cannot say that it could not “make an intelligent ruling on the application despite the State’s failure to respond.” Cherniwchan, 99 Idaho at 130, n. 2, 578 P.2d at 246 n. 2. The purpose of the twenty (20) day notice requirement is to give the petitioner “an opportunity to establish a material fact issue.” State v. Christensen, 102 Idaho 487, 489, 632 P.2d 676, 678 (1981). The petitioner-appellant’s notice of non-filing specifically stated that he did not intend to make any additional filing, therefore, proceeding on the record then before the district court. We hold that this constituted a waiver by the petitioner-appellant of the twenty (20) day notice requirement.

In State v. Rhoades [Baldwin], 120 Idaho 795, 820 P.2d 665 (1991), this Court held that “I.C. § 19-2719 provides a defendant with one opportunity to raise all challenges to the conviction and sentence in a petition for post-conviction relief except in those unusual cases where it can be demonstrated that the issues were not known and reasonably could not have been known within the time frame allowed by the statute.” The petitioner-appellant claims that the Charboneau interpretation of I.C. § 19-2515 was not a claim that was known or should have been known at the time of filing his initial post-conviction relief petition, and, if the Court found that it was, then it was ineffective assistance of counsel to fail to raise that issue.

In State v. Charboneau, 116 Idaho 129, 153, 774 P.2d 299, 323 (1989), we held that “the trial court may sentence the defendant to death, only if the trial court finds that all the mitigating circumstances do not outweigh the gravity of each of the aggravating circumstances found and make imposition of death unjust.” Obviously, the Charboneau decision was issued after petitioner-appellant’s initial petition for post-conviction relief. Thus, the claim that the Charboneau interpretation of I.C. § 19-2515 was not known or should not have been known misses the real issue. The real issue is whether Charboneau applies retroactively to cases that were final at the time of its issuance.

We have not applied the Charboneau decision to any case that was final prior to the issuance of Charboneau on April 4, 1989. Conversely, it has been applied to cases that were still open for sentencing on this date. The distinction between defendants whose cases were final before the issuance of Charboneau and those whose cases were not is a valid distinction. In Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), the United States Supreme Court recognized this distinction as a proper basis for denying retroactive effect of new rules to cases that are already final. Therefore, the Charboneau interpretation of I.C. § 19-2515 does not apply to the present case because the present case was final prior to the issuance of Charboneau.

Although our holding necessarily disposes of petitioner-appellant’s ineffective assistance of counsel claim, we also note that this claim is one “that should be reasonably known immediately upon the completion of the trial and can be raised in a post-conviction petition.” Rhoades, 120 Idaho at 807, 820 P.2d at 677. Because of the petitioner’s failure to raise this claim in the first petition, the claim has been waived.

The appeal from the trial court’s dismissal of petitioner-appellant’s second petition for post-conviction relief is hereby dismissed.

BAKES, C.J. and BOYLE, J., concur.