Nathan Michael Volk v. State
Background
- Nathan Volk pled guilty to sexual battery of a minor and was sentenced to a unified 25-year term with 5 years determinate.
- Prior to arrest, a law-enforced recorded telephone call between Volk and the victim (V.S.) captured Volk discussing sexual history; the detective arranged the call and listened in with consent of the victim and her mother.
- Volk filed a post-conviction petition alleging, among other claims, ineffective assistance of trial counsel for failing to move to suppress that recorded call; he amended the petition and proceeded pro se at times.
- The State moved for summary dismissal; the district court dismissed the petition with prejudice after a hearing, finding Volk failed to show a probable basis for suppression or to present admissible evidence to support his claim.
- Volk did not introduce the recording into the post-conviction record; the court relied on the detective’s affidavit and written summary describing the call and the consent given.
- The Idaho Court of Appeals affirmed, concluding Volk bore the burden to present admissible evidence and failed to show deficient performance or prejudice from counsel’s alleged omission.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for not moving to suppress the recorded phone call | Volk: recording unauthenticated under I.R.E. 901 and illegally intercepted; counsel should have moved to suppress | State: call was lawfully intercepted with victim/mother consent; petitioner failed to present the recording or admissible evidence to establish a suppression basis | Court affirmed dismissal — Volk failed to present admissible evidence or a probable basis for suppression; no deficient performance or prejudice shown |
| Whether the district court erred by not admitting the recording into the post-conviction record | Volk: parties agreed recording should be included; court should have considered it | State: recording was not made part of the post-conviction record by Volk, who had the burden to present evidence | Court held Volk failed to make the recording part of the record; pro se status does not excuse procedural requirements |
| Whether the interception was unlawful (consent/vicarious consent) | Volk: no consent from V.S. or her mother, so interception illegal | State: detective’s affidavit and summary show consent by victim and mother and mother’s presence during call | Court found vicarious/actual consent supported by affidavit and summary; interception not illegal |
| Whether summary dismissal was proper without an evidentiary hearing | Volk: factual disputes (admissibility/authentication) required a hearing | State: petitioner’s allegations unsupported by admissible evidence; summary dismissal permitted | Court held summary dismissal proper because admissible evidence did not create a genuine material factual dispute |
Key Cases Cited
- Rhoades v. State, 148 Idaho 247 (discussing civil nature and standards of post-conviction proceedings)
- Roman v. State, 125 Idaho 644 (requirements for making criminal-record exhibits part of post-conviction record)
- Wolf v. State, 152 Idaho 64 (petition must be accompanied by admissible evidence or face dismissal)
- Kelly v. State, 149 Idaho 517 (grounds for summary dismissal of post-conviction claims)
- Esquivel v. State, 149 Idaho 255 (clarifying that criminal-case records are not part of the post-conviction record absent admission or judicial notice)