Walker v. State , 92 Idaho 517 ( 1968 )

SPEAR, Justice.

This is an action for post-conviction relief initiated by the appellant. The State, through the prosecuting attorney of Bannock County, moved to dismiss appellant’s application on the ground that the same failed to state facts sufficient to challenge the validity of the conviction and sentence. -From an order of the district court granting the State’s motion, this appeal was taken.

The appellant was accused by information of the offense of second degree burglary, alleged to have been committed on 3uly 22, 1967, at a home located about ten :niiles west of Virginia, on Hawkins Creek -Road, in Bannock County, Idaho. Pie was -arrested August 15, 1967, and on the same «¡day waived his right to a preliminary hearing. On August 21, 1967, six days after his arrest, appellant was arraigned in the district court of the sixth judicial district of the State of Idaho, in and for the County of Bannock, and Herman J. McDevitt, of the firm of McDevitt and McDevitt, Pocatello attorneys, was appointed as his counsel. The proceeding was continued to allow appellant time within which to consult Mr. McDevitt.

On September 6, 1967, appellant appeared in open court with his counsel and entered a plea of guilty to the charge of burglary in the second degree. Thereafter, appellant was released from custody on his own recognizance pending receipt of a presentence investigation report by the court.

On October 2, 1967, appellant again appeared in court with his counsel, the court having previously received the pre-sentence Investigation report; and on that date appellant was sentenced to an indeterminate 'term of not to exceed five years in the Idaho State Penitentiary.

On October 30, 1967, appellant filed his motion for post-conviction relief pursuant to the provisions of Chapter 49, Title 19, of the Idaho Code, and on November 13, 1967, ■counsel was regularly appointed to represent him in such, proceedings.

On November 16, 1967, the State, through the prosecuting attorney of Bannock County, filed a motion to dismiss appellant’s application on the ground that the same failed to state facts sufficient to challenge the validity of the conviction and sentence.

Over the objection of appellant’s counsel, the trial court set a hearing on the State’s motion for December 26, 1967, and after hearing oral arguments by counsel for the State and for appellant, and after reviewing the petition for post-conviction relief “and the records and file,” the petition was dismissed on the grounds that it “does not set forth any grounds upon which the petitioner can be granted relief.” This order was entered on December 27, 1967, but it contained the following further provision:

“IT IS FURTHER ORDERED that, unless the Petition is amended within the period allowed by statute, showing grounds for relief, this Order will become final.”

Through inadvertence a final order or judgment dismissing the petition was not entered until October 31, 1968. An appeal was immediately taken from that final order, and counsel stipulated that the record could be augmented by including (1) the final judgment; (2) the appeal therefrom ; and (3) a certificate complying with the provisions of Idaho Supreme Court Rule 35. It was also stipulated that the new appeal was submitted to this court on the original record, as augmented, and the briefs and oral arguments previously filed and presented.

Appellant relies on only one assignment of error, namely, that the trial court erred in summarily dismissing the appellant’s motion for post-conviction relief without ordering his production and presence at a full evidentiary hearing. In his brief, appellant contends that where a motion for relief under Chapter 49, Title 19, of the Idaho Code, alleges substantial issues of fact in which the “Movant” participated, the trial court should order his production for a full evidentiary hearing, and he cites numerous authorities to sustain this contention. The substantial issues of fact relied upon by appellant as having been asserted in his motion for post-conviction relief are (1) that his guilty plea was not voluntarily made, and (2) he was not adequately and properly represented by counsel.

However, under the Idaho Uniform Post-Conviction Procedure Act, whether or not there are substantial issues of fact as to evidence in which the applicant participated and for the resolution of which a full evidentiary hearing with the applicant present is required, is discretionary with the trial court, referred to in the Act as the “sentencing court.” The Act provides:

I.C. § 19-4907(b) “The applicant should be produced at the hearing on a motion attacking a sentence where there are substantial issues of fact as to the evidence in which he participated. The sentencing court has discretion to ascertain whether the claim is substantial before granting a full evidentiary hearing and requiring the applicant to be present.”

The question presented to the trial court was whether or not the assertions or allegations made by appellant in his motion for post-conviction relief raised substantial issues of fact requiring a full evidentiary hearing at which the applicant should have been present to participate. Paragraph 10 of appellant’s motion provides:

“State concisely all the grounds on which you base your allegation that you are being held in custody unlawfully:”

and in 10(a) appellant alleges:

“Arrest without a warrant and arrest on the say-so of an accomplice’s statement that was uncorroborated.”

From this we must conclude that appellant intends the inference that his arrest was illegal. If this allegation can be deemed a basis affording relief to appellant under the Act, it must fall within the provisions of I.C. § 19-4901(6), which provides :

“That the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding, or remedy:”

Appellant has failed in his brief or oral argument to point out wherem the allegation of illegal arrest affords him any relief under the Act. To the contrary, however, Idaho has consistently held that unlawful arrest cannot be successfully raised by habeas corpus, because once the court obtained' jurisdiction, it is immaterial how it was obtained. Burge v. State, 90 Idaho 473, 413 P.2d 451; In re Moyer, 12 Idaho 250, 85 P. 897, 12 L.R.A.,N.S., 227, aff’d 203 U.S. 221, 27 S.Ct. 121, 51 L.Ed. 160.

Under paragraph 10 (b) appellant asserts:

“Held in jail without being aloued [sic] a phone call for 17 days.”

Assuming such statement to be true, as we must, the record affirmatively shows competent counsel was appointed to represent appellant six days after his arrest. Appellant fails to disclose in his brief wherein his constitutional rights were in any manner infringed by the alleged refusal to permit him to use a telephone for 17 days, or in what manner he was prejudiced thereby. Without such showing, we fail to see how appellant brings himself within the provisions of I.C. § 19-4901 entitling him to any remedy provided under the Act. See State v. Gibby, 78 N.M. 414, 432 P.2d 258 (1967).

In paragraph 10(c), appellant alleges :

“Having me sign a statement that I did! not make by threatening to bring my wife ■ into it and causing me to loose [sic] my son. Sentencing me on my past record! and on child suport [sic] and not on the-crime that I was found guilty on.!’"

By the first sentence of this allegation, it appears appellant is raising the question of a statement having been taken from him. by use of coercion. Unfortunately;, the record does not disclose the contents of. the-statement nor to whom the statement, was-given; but assuming the statement had been: given to police officers or other state authorities and that it did contain admissions; or other incriminatory matter, it would still' not entitle appellant to post-conviction relief; because his conviction and sentence-were based upon a plea of guilty and the assumed incriminating evidence contained in appellant’s statement was not used in obtaining his conviction. Other jurisdictions, and particularly New Mexico and Kansas, have so held in recent decisions. State v. Gibby, 78 N.M. 414, 432 P.2d 258 (1967); Peterson v. State, 198 Kan. 26, 422 P.2d 567 (1967); State v. Knight, 78 N.M. 482, 432 P.2d 838 (1967); State v. Selgado, 78 N.M. 165, 429 P.2d 363 (1967); Kiser v. State, 196 Kan. 736, 413 P.2d 1002 (1966).

The second sentence of paragraph 10(c) alleges erroneous sentencing on the grounds it was based on his past record— probably obtained from a pre-sentence in-investigation — and on a failure to comply with child support allowances. This too is unavailing for appellant, because the sentence imposed upon appellant by the trial court was within the limits prescribed by the Idaho statute, and without a stronger showing than that made by appellant herein, such sentence will not be considered an abuse of discretion by the trial court. King v. State, 91 Idaho 97, 416 P.2d 44 (1966).

In paragraph 10(d) appellant alleges :

“Knowing this arrest the judge should never have excepted [sic] a pleay [sic] of guilty.”

Just what is intended by appellant in this allegation is uncertain and speculative, but in any event whatever ground may have been intended by such allegation to bring him within I.C. § 19-4901, such ground was not urged by appellant, either in his brief or in the oral argument presented to the court, and no citations were given to support any such contention. Thus, this allegation will not be discussed in this opinion. Harmon v. Noland, 90 Idaho 494, 413 P.2d 897 (1966).

The most important issues raised by appellant in his motion are as stated in his brief, i.e., “Primarily and essentially, he alleges that his guilty plea was not voluntarily made and that he was not adequately and properly represented by counsel.” These grounds as basis for relief under the Act are set forth in appellant’s application in answer to paragraph 21 which states:

“If your motion is based upon the failure of counsel to adequately represent you, state concisely and in detail what counsel failed to do in representing your in-interests

to which appellant made the following allegations :

a. “He stated that I had no worry that I would not receive any prison sentence.”

and

b. “Not advising my rights and telling me that the law was strictly within the rights.”

Thus appellant contends that his plea of guilty was induced by a promise of leniency extended him by his court-appointed counsel. In answering paragraph 11 in his application, appellant asserts:

“They [the facts] were known to the lawyer and he said that it didn’t make any difference that I would get jail time or probation not to worry.”

This is the leniency appellant contends was assured him by his counsel and which he claims induced him to enter a plea of guilty. In a case decided March 12, 1968, this court held:

“In the case at bar, the coercion allegedly resulted because of appointed counsel’s advice to appellant. A mere prediction by counsel of the court’s likely attitude on a sentence, short of some implication of an agreement or understanding, however, is not ground for attacking a guilty plea [citations]. Similarly, “it has nowhere been held that if counsel advises his client in good faith that a plea of guilty will result in a recommendation of a lighter sentence in one of several indictments, this strips a plea of its voluntary nature.’ Floyd v. United States, 260 F.2d 910 at p. 912 [5th Cir.1958], supra.” Davidson v. State, 92 Idaho 104, 437 P.2d 620 (1968)

In this same case the court held:

“We are constrained to the view that although appellant may have believed, after conferring with his attorney, that he would receive a lighter sentence by pleading guilty, such can be of no avail to him [citations].”

It will be noted appellant does not contend that his plea of guilty was entered upon a commitment from any responsible state official that appellant would receive a lighter sentence or penalty by entering the plea of guilty. The alleged assurance of leniency was made solely and only by appellant’s appointed counsel. This does not constitute grounds for post-conviction relief. Davidson v. State, supra; People v. Morton, 100 Cal.App.2d 269, 223 P.2d 259 (1950); People v. Rodriguez, 143 Cal. App.2d 506, 299 P.2d 1057 (1956); In re Rose, 62 Cal.2d 384, 42 Cal.Rptr. 236, 398 P.2d 428 (1965); Ex parte Hough, 24 Cal. 2d 522, 150 P.2d 448 (1944); Application of Atchley, 48 Cal.2d 408, 310 P.2d 15 (1957); People v. Hines, 66 Cal.2d 348, 57 Cal.Rptr. 757, 425 P.2d 557 (1967); Floyd v. United States, supra.

Appellant’s final contention is that he was not adequately and properly represented by counsel. Again appellant has failed to make an adequate showing to entitle him to relief under the Act, for in Burge v. State, 90 Idaho 473, 413 P.2d 451 (1966), this court held in part:

“ * * * The lower tribunal which originally heard and denied petitioner’s writ of habeas corpus pointed out that petitioner was represented by an attorney in a proceeding before the trial court wherein the plea of guilty was entered and held it must be presumed that the attorney advised petitioner of his constitutional rights and did not permit petitioner to waive any objections which could validly have been made at the time of his arrest, plea of guilty, and sentencing. The trial court made no error in so holding. * * %

“It must be presumed, unless there is an affirmative showing to the contrary in addition to the uncorroborated allegations of the petitioner, that counsel has consulted with his client and has in good faith advised him of his rights, [citations]”

This language in the Burge case was specifically quoted and followed in Davidson v. State, supra.

For the reasons enumerated herein, the order of the trial court dismissing appellant’s application for relief under the Act without granting a full evidentiary hearing and requiring appellant to be present is affirmed.

SMITH, C. J., and TAYLOR and Mc-FADDEN, JJ., concur.