Nelson v. State

861 P.2d 1261, 124 Idaho 596, 1993 Ida. App. LEXIS 174
CourtIdaho Court of Appeals
DecidedOctober 22, 1993
DocketNo. 20441
StatusPublished

This text of 861 P.2d 1261 (Nelson v. State) is published on Counsel Stack Legal Research, covering Idaho Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nelson v. State, 861 P.2d 1261, 124 Idaho 596, 1993 Ida. App. LEXIS 174 (Idaho Ct. App. 1993).

Opinion

PERRY, Judge.

This is an appeal from the denial of Gregory Nelson’s application for post-conviction relief following an evidentiary hearing. In ruling on the application, the district court held that Nelson had not met his burden of proof as to the allegations made in his application and had failed to state a [598]*598claim which entitled him to relief. We affirm.

In 1987, Gregory Nelson was convicted of possession of more than three ounces of marijuana. He received a unified sentence of three years, with a minimum term of confinement of one year, which was suspended. He was placed on three years’ probation. After several reported violations, the probation was revoked, and Nelson appealed from the revocation order executing the previously suspended sentence. In that appeal, Nelson claimed ineffective assistance of counsel due to communication problems with, and animosity between, Nelson and his counsel. This Court affirmed the revocation order in an unpublished opinion dated December 3, 1992.

In July 1992, Nelson filed an application for post-conviction relief, raising new claims of ineffective assistance of counsel and a claim that his motion to suppress, filed prior to trial, had been erroneously denied. A hearing on Nelson’s application was held at which Nelson and his trial counsel testified. At the close of Nelson’s case, the state called no witnesses but moved the court to dismiss Nelson’s application. In its findings and conclusions, the district court granted the state’s motion to dismiss with regard to the allegations of counsel’s ineffectiveness in refusing to call certain witnesses and in advising Nelson not to testify at trial. The court thereafter entered judgment denying relief on all of the additional claims of the post-conviction application. Nelson appeals.

In a post-conviction relief hearing, the petitioner has the burden of proving the allegations which entitle him to relief by a preponderance of the evidence. Clark v. State, 92 Idaho 827, 452 P.2d 54 (1969); Larkin v. State, 115 Idaho 72, 764 P.2d 439 (Ct.App.1988). Where there is competent and substantial evidence to support a decision made after an evidentiary hearing, the district court’s decision will not be disturbed on appeal. Holmes v. State, 104 Idaho 312, 658 P.2d 983 (Ct.App.1983). Because post-conviction relief proceedings are civil in nature, findings of fact by the court will not be set aside on appeal unless clearly erroneous. Id. at 313, 659 P.2d at 984; I.R.C.P. 52(a).

We begin by addressing Nelson’s contention that he was entitled to post-conviction relief because the search of his vehicle, conducted after his arrest for driving without privileges, was in violation of his constitutional rights. Nelson argues that the marijuana, discovered in a brown paper sack in the passenger compartment of his vehicle, should have been suppressed upon his motion. He also argues that this appeal is his first opportunity to challenge the ruling on the suppression motion because no direct appeal was taken from the judgment of conviction.

This same issue was squarely resolved in Maxfield v. State, 108 Idaho 493, 700 P.2d 115 (Ct.App.1985), where this Court held:

We have noted that the remedy of post-conviction relief is not a substitute for appeal. See I.C. § 19-4901(b); Dionne v. State, [766 P.2d 1181 (1989),] supra. The failure to suppress evidence allegedly illegally seized is not fundamental error which may be cured in a post-conviction relief proceeding even though the error could have been, but was not raised on direct appeal.

Id. at 500, 700 P.2d at 122. Nelson’s motion to suppress was heard by the district court, and no appeal from the denial of the motion was taken following the conviction. We reject as a ground for post-conviction relief Nelson’s claim that his original conviction was obtained through an illegal search. Accordingly, we will not now reverse the denial of his application for post-conviction relief on that ground.

Nelson next asserts that he was entitled to post-conviction relief based upon the ineffective assistance of counsel he had received at trial. He cites three instances of ineffective assistance: (1) counsel’s failure to secure the testimony of witnesses identi[599]*599fied by Nelson; (2) counsel’s advice that Nelson should not take the stand; and (3) failure to file an appeal from the conviction.

The Supreme Court of the United States enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a two-pronged test for determining whether a defendant is denied effective assistance of counsel. In order to establish a violation of the constitutional guarantee to effective assistance of counsel, the defendant must show both deficient performance and resulting prejudice. Gibson v. State, 110 Idaho 631, 634-35, 718 P.2d 283, 286-87 (1986), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show that counsel’s performance was deficient, the applicant has the burden of showing that his attorney’s representation fell below an objective standard of reasonableness. State v. Aragon, 114 Idaho 758, 760 P.2d 1174 (1988). To establish prejudice, the applicant must show a reasonable probability that, but for his attorney’s deficient performance, the outcome of his trial would have been different. Id. We will not, on review, second-guess trial counsel’s strategic or tactical decisions unless those decisions are made upon a basis of inadequate preparation, ignorance of the relevant law, or other shortcomings capable of objective evaluation. Larkin, supra.

At the evidentiary hearing on the post-conviction application, Nelson testified that there were two persons who had witnessed the search of his car on the night of his arrest outside a convenience store in Caldwell. One of these persons was a woman employee of the convenience store and the other, an acquaintance of Nelson’s, was pumping gas at the island nearest the store. Trial counsel, who also testified, confirmed that Nelson had given him the names of these persons who could serve as character witnesses. Counsel stated that he did not recall any discussion with Nelson to the effect that the witnesses had observed the search of Nelson’s car, and in particular, the brown paper sack behind the driver’s seat. Trial counsel explained that because he did not intend to put Nelson’s character in issue at the trial, he determined not to call any of these witnesses.

The decision whether to call character witnesses is a strategic decision which ordinarily should not be second guessed on appeal. Aragon v. State, 114 Idaho 758, 763, 760 P.2d 1174, 1179 (1988).

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Related

New York v. Belton
453 U.S. 454 (Supreme Court, 1981)
Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Gibson v. State
718 P.2d 283 (Idaho Supreme Court, 1986)
Larkin v. State
764 P.2d 439 (Idaho Court of Appeals, 1988)
Clark v. State
452 P.2d 54 (Idaho Supreme Court, 1969)
Holmes v. State
658 P.2d 983 (Idaho Court of Appeals, 1983)
Aragon v. State
760 P.2d 1174 (Idaho Supreme Court, 1988)
Maxfield v. State
700 P.2d 115 (Idaho Court of Appeals, 1985)
Russell v. State
794 P.2d 654 (Idaho Court of Appeals, 1990)
Davis v. State
775 P.2d 1243 (Idaho Court of Appeals, 1989)
Dionne v. State
766 P.2d 1181 (Court of Appeals of Alaska, 1989)
State v. Shepherd
795 P.2d 15 (Idaho Court of Appeals, 1990)

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Bluebook (online)
861 P.2d 1261, 124 Idaho 596, 1993 Ida. App. LEXIS 174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-state-idahoctapp-1993.