Peltier v. State

808 P.2d 373, 119 Idaho 454, 1991 Ida. LEXIS 28

• Court: Idaho Supreme Court
• Decided: February 27, 1991
• Docket: 17214
• Status: Published

Opinions

BOYLE, Justice.

In this case involving the summary dismissal of a petition for post-conviction relief, we are called upon to determine whether Edward Peltier's rights were violated when the district court found that he had violated the terms of his probation and imposed a twenty-year sentence.

In post-conviction proceedings filed May 21, 1986, Peltier sought relief on the ground that the district court erroneously increased his original sentence from five years to twenty years following an alleged probation violation, and on various due process grounds alleging that his probation violation hearing was unfair.¹ The district court initially scheduled a hearing on Peltier’s petition for post-conviction relief, however, pursuant to the State’s motion, the district court reconsidered and on October 2, 1987, found that the request for post-conviction relief was without merit and dismissed Peltier’s petition without a hearing. It is from this order summarily dismissing his request for post-conviction relief that Peltier appeals.

I.

FACTS

In May, 1982 Peltier plead guilty to a charge of lewd and lascivious conduct in violation of I.C. § 18-6607. When sentence was pronounced on June 23, 1982, the district court orally stated that it was withholding judgment for five years and placing Peltier on probation. The written Order Withholding Judgment and Order of Probation filed the next day, June 24, 1982, contained similar language.

Thereafter, in 1982, the Department of Health and Welfare filed a petition to obtain custody of Peltier’s minor children based upon the accusation that one of the children, Brandon, had been sexually abused by Peltier. A hearing was held and the magistrate court issued a memorandum decision on February 11, 1983, finding that the alleged sexual abuse had occurred and it was in the best interests of the three Peltier children that legal custody be awarded to the Department of Health and Welfare.

On March 9, 1983, a probation violation hearing was held before the district court. It is argued on appeal by Peltier that his attorney, without his consent or authority, stipulated to the admission of the magistrate’s findings from the child custody proceedings in the March 9, 1983 probation violation hearing. Unfortunately, the transcript of the March 9, 1983 probation violation hearing is not contained in the record.² However, the remainder of the record before us contains other hearing transcripts, minute entries and memorandums sufficient to allow review of the issues presented.

On March 16, 1983, the district court found that Peltier had violated his probation and orally pronounced the following sentence:

Therefore, the Court is of the opinion and does hereby pronounce sentence as follows:

You are committed to the custody of the Idaho State Board of Corrections for a maximum indeterminate period not to exceed 20 years. All but the first 11 months of that sentence is suspended, and the 11 months will be served in the Nez Perce County Jail.

During the period of the suspended portion of the sentence you shall be on probation under the direction and control of the Idaho Board of Corrections through its Department of Parole and Probation.

In the event that you shall violate any of the terms of that probation, then you shall be returned to court for the imposition of the remaining portion of the sentence.

Thereafter, in September, 1985, Peltier admitted to having made contact with his children while helping his former wife repair her automobile, and was found to have violated the terms of his probation and the twenty-year indeterminate sentence was imposed.

Peltier claims on appeal from summary dismissal of his post-conviction relief action that he is entitled to a hearing to determine whether his rights were violated at the March 9,1983 probation violation evidentiary hearing because his attorney stipulated to the findings of the magistrate without his consent, and as a result he was not allowed to confront witnesses. Peltier also claims that he did not receive adequate notice concerning the March 9,1983 evidentiary hearing and that he was denied an opportunity to be heard or present evidence at that hearing.

II.

STANDARD OF REVIEW

The Uniform Post Conviction Procedure Act as codified at I.C. § 19-4901 through § 19-4911 governs the procedure and manner in which a petition for post-conviction relief may be sought. The proper use of this Act is to avoid repetitious and successive applications, while protecting the applicant’s constitutional rights. Dionne v. State, 93 Idaho 235, 459 P.2d 1017 (1969). An application for post-conviction relief is a special proceeding, civil in nature and is an entirely new proceeding, distinct from the criminal action which led to conviction. Paradis v. State, 110 Idaho 534, 716 P.2d 1306 (1986); State v. Bearshield, 104 Idaho 676, 662 P.2d 548 (1983). The Rules of Civil Procedure are applicable in such a proceeding. State v. Goodrich, 104 Idaho 469, 660 P.2d 934 (1983).

Idaho Code § 19-4906(c) is the statutory vehicle by which a summary disposition may be entered in a proceeding under the Act. This section provides that a summary disposition may be made only when there are no genuine issues of material fact, State v. Goodrich, 104 Idaho 469, 660 P.2d 934 (1983), and that if an issue of material fact exists, then an evidentiary hearing must be held. Id. at 472, 660 P.2d at 937.

In the event the district court decides to dismiss an application for a petition for post-conviction relief, I.C. § 19-4906(b) requires the court to notify the petitioner of its intention in order that petitioner have an opportunity to respond. Failure to notify the petitioner of the court’s intent and offer petitioner an opportunity to respond requires that a judgment denying application for a petition for post-conviction relief be reversed. Cherniwchan v. State, 99 Idaho 128, 578 P.2d 244 (1978).

When the district court dismisses a petition for post-conviction relief it need not issue formal written findings and conclusions, it need only find that there are no genuine issues of material fact and that judgment is appropriate as a matter of law. State v. Christensen, 102 Idaho 487, 632 P.2d 676 (1981).

III.

STATUS OF THE RECORD

In the initial order scheduling an evidentiary hearing on the petition for post-conviction relief, the district judge stated that he had listened to “the recordings of the hearings in question,” and that as a result thereof, he was unable to conclude “whether the probation revocation hearing conformed with the requirements of due process as alleged by petitioner.”

However, the record before this Court contains only the transcripts of sentencing hearings dated June 23,1982 (original withheld judgment), March 16, 1983 (sentence imposing suspended twenty year term), and September 18, 1985 (sentence imposing twenty-year term).³ The record contains numerous affidavits from appellant’s family, acquaintances, the Nez Perce prosecuting attorney and the decision of Magistrate Judge Perry in the child custody proceeding. No minute entry or transcript of the March 9, 1983 probation violation evidentiary hearing to which the district court referred in the initial order scheduling a hearing on the post-conviction petition is contained in the record before this Court.

We have reviewed the entire record and conclude that appellant’s application for post-conviction relief was improperly dismissed in a summary disposition manner because genuine issues of material fact existed and the district court did not give Peltier notice of its intent to summarily dismiss the petition. Idaho Code § 19-4906(c); Cherniwchan v. State, 99 Idaho 128, 578 P.2d 244 (1978).

A. Probation Violation Evidentiary Hearing

Peltier alleges several errors occurring before and during the probation violation hearing. First, Peltier asserts that he did not at any time plead guilty to a violation of the terms of his probation at or before the probation violation hearing on March 9, 1983. Secondly, Peltier claims that his due process rights were violated because his attorney did not have authority to stipulate to the admission of certain evidence, and as a result he was not able to confront his accusers and was denied adequate notice of the alleged probation violations.

The district court in its memorandum decision dismissing the post-conviction petition states that appellant admitted violating his probation. However, a careful and thorough review of the record before us does not support this finding. The district court’s memorandum states that several witnesses were called at the probation violation hearing on March 9, 1983, in defense of Peltier. Again, our review of the record does not support this finding.

Several affidavits allege that Peltier was not given a fair probation violation hearing on the ground that the district judge would not allow Peltier to speak on his own behalf or present further evidence.⁴

The record before us is unclear whether Peltier was given an adequate opportunity to contest adverse evidence in the March 9, 1983 probation revocation hearing. In State v. Edelblute, 91 Idaho 469, 424 P.2d 739 (1967), this Court stated:

It is imperative that the hearing process “afford the defendants full opportunity to present evidence in their behalf.” Otherwise, the trial judge might not be sufficiently informed to fulfill the obligation that he “must exercise this judicial discretion [to grant or refuse a probation application] in a lawful and legal manner and grant or deny the same ... in the exercise of a sound, legal discretion.” Further, the requirement that the court conduct a probation application proceeding “according to the established principles of law,” [citation omitted] and, concomitantly, that an applicant for probation be granted “full opportunity to present evidence in his behalf,” inherently demands that the applicant be specifically advised of all pertinent information received by the trial court so that the applicant has a opportunity to “explain and defend adverse matters otherwise the opportunity to present evidence would be meaningless.”

Id. 91 Idaho at 477, 424 P.2d at 746-47 (citations omitted).

In the post-conviction relief action Peltier presents the affidavit of his son, Brandon, stating that Peltier never abused him in the manner in which the State alleged. Furthermore, the affidavits of several individuals argue that Brandon was very impressionable at the time of the custody proceedings and that the child told the investigators only what they wanted to hear concerning the allegations of sexual abuse.

Under these circumstances, and in light of the March 9, 1983 transcript not being contained in the record, we must construe all factual inferences in a summary disposition of a post-conviction relief action in favor of the petitioner. The state of the record before this Court strongly suggests that Peltier was not afforded a full opportunity to present evidence in his behalf at the March 9, 1983 probation violation hearing.

B. Notice of Hearing

Peltier claims that his due process constitutional rights were violated because he was not given sufficient notice of the allegations in the probation violation hearing. The record is unclear as to the type of notice that was actually given to Peltier for the March 9, 1983 probation violation hearing. We note that an individual only needs to be given sufficient notice to reasonably inform him concerning the nature of the charges. The district court noted in its memorandum decision that Peltier received a summons concerning the probation violation hearing and that because of the nature of the Child Protective Act hearings previously conducted he was reasonably on notice concerning the basis of the probation violation charges. Our review of the record supports the trial court’s finding that appellant had adequate notice concerning the nature and substance of the probation violation allegations.

C. Notice of Intent to Summarily Dismiss Petition

Our review of the record, however, does not reveal that notice was provided to Peltier by the district court of its intention to summarily dismiss the petition for post-conviction relief. In the absence of notice being given to Peltier of the court’s intention to summarily dismiss the petition, he had no opportunity to respond. Under these circumstances we reverse the order summarily dismissing Peltier’s petition for post-conviction relief. Cherniwchan v. State, 99 Idaho 128, 578 P.2d 244 (1978); I.C. § 19-4906(c).

In the absence of a full record before us to support the district court’s summary disposition, and in light of the district court’s failure to give notice of summary dismissal of the post-conviction relief action, we remand the case for further proceedings, including an evidentiary hearing on the petition for post-conviction relief.

IV.

IMPOSITION OF SENTENCE

Peltier asserts that the district court erred when it increased his sentence from five years to twenty years. Peltier relies upon the language of the June 24, 1982 written judgment of the district court in support of his position. Peltier argues that although the written order was entitled an “Order Withholding Judgment and Order of Probation” it was in reality a conviction and a suspended five-year indeterminate sentence. However, our review of the transcript of the sentencing hearing and the oral statements of the district judge on March 23, 1983, clearly demonstrate that the district court’s intention was to grant Peltier a withheld judgment.

In State v. Phillips, 99 Idaho 354, 581 P.2d 1173 (1978), this Court was confronted with a similar issue. In Phillips the written order subsequently filed with the clerk did not contain any reference to probation, however, the oral sentence pronounced by the trial court at the time of sentencing granted probation. In Phillips we held that the oral sentence imposed in court at the time of sentencing was ambiguous and was susceptible of two constructions, thus requiring resentencing. In Phillips the Court declined to rely upon the written judgment in attempting to clarify an ambiguous oral sentence.

In the case presently before us the district court stated at the time of sentencing on June 23, 1983:

So, the Court’s going to withhold judgment in this case for a period of five years. During that period of time you are going to be under the direction and control of the Department of Parole and Probation. That means you will answer to a probation officer whenever you are told to and wherever you are told to.

You will spend the next 60 days in the Nez Perce County Jail.

All right. Now, if you live by the rules for the term of the probation then you can have the case dismissed and you will never have been convicted. On the other hand, if you disobey the rules you will be returned to court, and if the State proves you disobeyed the rules you will be sentenced; and I want to point out to you that you can be sentenced to anything up to life in prison. The five-year withheld has nothing to do with your sentence. (Emphasis added.)

This language clearly demonstrates the district court’s intention to grant Peltier a withheld judgment and place him on probation. Furthermore, it clarifies any ambiguity or inconsistency that may exist in the written order.⁵ In the instant case there is arguably some ambiguity in the text of the written judgment, but there is absolutely no ambiguity in the oral sentence pronounced by the district court. The district court clearly and unequivocally granted Peltier a withheld judgment and placed him on probation for a period of five years. Where the oral sentence clearly granted Peltier a withheld judgment, we decline to interpret the written judgment as being in conflict with the clearly expressed intent of the district court at the time sentence was pronounced.

Idaho Code § 19-2601(3) authorizes the district court to grant a withheld judgment, the purpose of which is to allow a defendant an opportunity to rehabilitate himself. The difference between suspending the imposition of sentence and withholding judgment is that under the former the defendant’s judgment of conviction is entered, whereas in the latter case it is withheld. State v. Pedraza, 101 Idaho 440, 614 P.2d 980 (1980); State v. Wagenius, 99 Idaho 273, 581 P.2d 319 (1978). When a defendant receives a withheld judgment he is placed on probation to the Board of Correction. 101 Idaho at 442, 614 P.2d at 982; I.C. § 19-2601(5). However, after the court has granted a withheld judgment to a defendant and placed him on probation, jurisdiction is retained during the probationary period and the district court has continuing jurisdiction to modify its conditions. State v. Oyler, 92 Idaho 43, 436 P.2d 709 (1968); Ex parte Medley, 73 Idaho 474, 253 P.2d 794 (1953); see also United States v. Locke, 409 F.Supp. 600 (D.C.Idaho 1976), affd 542 F.2d 800 (1976). In Pedraza we interpreted I.C. § 19-2603 and § 20-222, to provide that when a withheld judgment is granted the trial court may revoke the probation and impose any sentence which originally might have been imposed at the time of conviction.⁶ In Pedraza we stated:

We are convinced that the portion of the statute which permits a court to “impose any sentence which originally might have been imposed at the time of conviction” refers only to a revocation of probation following a withheld judgment, while the portion which permits the original “sentence imposed to be executed” refers to a revocation of probation following a suspension of the execution of judgment and sentence.

Id. 101 Idaho at 442, 614 P.2d at 982.

In the instant action it was determined that a probation violation had occurred following the grant of a withheld judgment to Peltier. The district court had the statutory jurisdiction and authority to impose upon Peltier any sentence which originally might have been imposed at the time of conviction, so long as it was within the statutory limits.

Peltier claims, however, that because the district court imposed a sixty-day county jail term that the withheld judgment was a disguised judgment of conviction. In State v. Wagenius, 99 Idaho 273, 581 P.2d 319 (1978), we considered this identical issue and stated:

It is apparent from the broad language of § 19-2601 that the legislature intended the courts to have maximum flexibility to fashion the sentence most appropriate to the individual defendant. The statute therefore must be liberally construed. The ability to withhold a judgment and thereby spare the defendant, particularly a first time offender, the burden of a criminal record, and yet, to emphasize the seriousness of the defendant’s action by conditioning that withheld judgment on a period of incarceration or payment of a fine is certainly one of the many sentencing alternatives the legislature intended to be available to the courts. Likewise, the payment of court costs and restitution are also proper and often very useful conditions of withheld judgments and probation.

Id. 99 Idaho at 279-80, 581 P.2d at 325-26; see also Franklin v. State, 87 Idaho 291, 392 P.2d 552 (1964) (McQuade, J., Taylor, J. and Knudsen, C.J. concurring and dissenting).

In this case the record unequivocally demonstrates that the district judge at the time of the original sentencing on June 23, 1982, imposed a sixty-day period of incarceration as a condition of probation and made it clear that if Peltier did not abide by the terms of the withheld judgment he could be brought before the district court and have a sentence of up to life imprisonment imposed for the crime of lewd and lascivious conduct. Peltier was on notice at the time of sentencing that a lengthy sentence was possible when he accepted the terms and conditions of the withheld judgment. If Peltier did in fact violate the terms of his probation, the actions of the district court in imposing the twenty-year sentence are in accord with the statutes and case law of this state. There is no double jeopardy issue present as argued by Peltier. His judgment of conviction was initially withheld and the district court did not impose any sentence other than probation and a short period of incarceration in the county jail as a condition of probation.

We affirm the district court’s jurisdiction and authority to impose the twenty-year sentence, however, we reverse the summary disposition of the post-conviction relief petition and remand for an evidentiary hearing.

We therefore vacate the summary dismissal of the petition for post-conviction relief, and remand for further proceedings.

BAKES, C.J., and JOHNSON and McDEVITT, JJ. concur.

1 . All sentencing and probation violation hearings held between 1982 and 1985 were before District Judge John Maynard. Thereafter, District Judge E.B. Ponack presided over the post-conviction proceedings filed on May 21, 1986, and summarily dismissed Peltier's petition on October 2, 1987.

2 . The record before us demonstrates that the magistrate court findings and a probation officer's affidavit are the only two items the district court considered when it found that Peltier had violated the terms of his probation. The probation violation sentencing hearing transcript of March 16, 1983, contains the following dialogue concerning the March 9, 1983 probation violation hearing:

THE COURT: A hearing was held last week on the probation violation and the Court found that you had violated your probation. That finding was based upon the findings and opinion of Magistrate Perry after a child protective hearing and based upon the affidavit of the probation officer, the contents of which were stipulated as being what the probation officer would have testified to.

All these matters not being controverted are sufficient for a holding that the defendant has violated the terms of his probation. It now becomes the duty of the Court to make a disposition of this case; that is, the Court must attempt to tailor some type of sentence that would protect society, protect children that you may come in contact with in the future, and offer a chance for you to rehabilitate yourself.

3 . Appellant only requested the production of a transcript for these three hearings. No request has been made for a transcript of the probation violation evidentiary hearing held on March 9, 1983. However, it is clear from the record that the district court relied upon some part of this hearing in making its initial determination to schedule a hearing on the post-conviction relief petition.

4 . The transcript of the March 16, 1983 hearing contains the following dialogue to which the affiants may be referring in support of Peltier’s claim that the district court would not allow him to speak or present additional evidence in his defense:

DEFENDANT: The only thing that I would like to say is that I’ve kept my word from the last time that I was before you and pled guilty on the first charge.

I have not broken probation, but at the same time I’m willing to accept what needs to be

done in order to get this thing straightened out.

THE COURT: Well, Mr. Peltier, let’s clear up one thing. You have broken probation. It's been proved that you broke the terms of your probation. You are going to have to recognize in your own mind that you have done that. You haven’t admitted it, but you were by the proofs of the State; and I made my finding last week that portion was there, so don’t talk about that anymore.

5 . The Order Withholding Judgment and Order of Probation states:

(2) That the probationer shall be under legal custody and control of the Idaho State Board of Correction through its Department of Probation and Parole and the District Court, and subject to the rules of probation as prescribed by the Board of Correction and the District Court; ... (Emphasis added.)

In this state the Idaho State Board of Correction through its Department of Probation and Parole, provides the staff to monitor and supervise a person on probation. The fact that the State Board of Correction has legal custody and control of defendant does not indicate that the district court has withdrawn its jurisdiction to modify the withheld sentence, it only means that the State Board of Correction is to monitor and supervise the defendant during his probationary term. The State Board of Correction has no authority to revoke probation while the defendant is on probation conditional to a withheld judgment.

6 . Appellant cites State v. Johnson, 101 Idaho 581, 618 P.2d 759 (1980), for the proposition that the law concerning withheld and suspended sentences is unsettled in this state. However, Johnson is inapposite to the issues in this case. In Johnson the district court retained jurisdiction for 120 days instead of granting a withheld judgment. In the case presently before this Court, it is clear that a withheld judgment was granted pursuant to I.C. § 19-2601.