Fetterly v. State

825 P.2d 1073 FETTERLY, Kenneth

Donald

Petitioner-Appellant, Idaho, Respondent.

STATE of

No. 18966. Idaho,

Boise, September 1991 Term. Dec. Collins, Boise, Westberg, for McCabe & Rehearing Denied March McCabe, petitioner-appellant. Thomas J.

argued. EchoHawk, Gen.,

Larry Atty. J. Gen., Boise, Thomas, argued, Lynn E. Sol. respondent. for McDEVITT, Justice. arises from the murder of Ster

This case ling Donald Kenneth Grammer. degree murder and was convicted of first appealed was sentenced to death. sentence, af and this Court his death Fetterly, 109 Idaho firmed. State denied, 479 U.S. 710 P.2d 1202 cert. (1986). post-conviction petition then filed a He The district relief in the district court. this Court affirmed. court denied relief and 231, 766 P.2d Fetterly, State denied, cert. Subse relief was denied. quently, federal habeas (D.Ida Paskett, F.Supp. 594 Fetterly v. 1990). petitioner-appellant Finally, the ho post-conviction petition for filed a second 15, 1990. on June relief in the district court petitioner-ap- petition, the In the second court, in the argued the district pellant trial, weigh his did not sentencing phase of mitigating circumstances in accordance aggravating circumstances holding in v. Char- this Court’s State boneau, responsive pleading not file a did June this second On sec- an amended filed petitioner-appellant relief. ond error the it, urged as reversible petitioner sentencing judge considered fact that relating evidence petitioner-appellant to the Christensen, 487, sue.” State v. 102 Idaho judge that the exposed during 489, 676, had been 632 P.2d petition- The petitioner-appellant’s trial of the er-appellant’s co- non-filing specifical- notice of defendant, Karla Yvonne ly Windsor. The stated that he did not intend any to make did responsive pleading therefore, not file a filing, additional proceeding on petition. this amended second the record then before the district court. We hold that this constituted a waiver petitioner-appellant filed a motion petitioner-appellant (20) twenty of the summary disposition pursuant for to I.C. day requirement. notice upon It was based “the § respond [Baldwin], State’s failure to to the Petition” In State v. Rhoades 120 Idaho (30) thirty days docketing within after the this Court held petition, required by provides I.C. that “I.C. 19-2719 a defendant § § 4906(a). opportunity Petitioner also challenges filed a notice of with one to raise all non-filing which stated: petition to the conviction and sentence in a post-conviction except for relief in those Petitioner, by

COMES NOW the unusual cases where it can be demonstrat- through undersigned his counsel of ed that the issues were not known and record, gives hereby notice to Court reasonably could not have been known and counsel that no additional affidavits within the time frame allowed the stat- support of the Petition will be filed at petitioner-appellant ute.” The claims that present time because Petitioner feels interpretation the Charboneau I.C. fairly presented by that the issues are Petition, 19-2515 was not a claim that was known and the statements sworn § or should have been known at the time of put found therein are sufficient to peti- filing post-conviction his initial relief matter in issue. was, tion, and, if the found that it The district court dismissed the second assistance of coun- then was ineffective petition providing any without notice of its sel to fail to raise that issue. petitioner-appellant intent to do so. The Charboneau, then filed notice of on October In 116 Idaho held may sentence the de that “the trial court petitioner-appellant urges death, only if the trial court fendant to find error in the reversible finds that all the circumstances respond petition failure to to the State’s outweigh gravity of each of the do not (30) thirty days docketing and in within circumstances found provide the district court’s failure to twen unjust.” imposition of death Obvi make (20) ty days of its intent to summari notice was issued ously, the Charboneau decision ly dismiss his It is clear I.C. initial petitioner-appellant’s after 19-4906(a) respond requires the State to Thus, claim relief. (30) days docketing. The thirty within interpretation of I.C. that the Charboneau requirement properly is to purpose of this should not not known or 19-2515 was legal any frame factual and issues before real issue. misses the have been known the district court so that it can make ap The real issue is whether Charboneau State, intelligent ruling. Cherniwchan that were plies to cases 128,130, n. n. of its issuance. at the time (1978). However, upon record based court, applied Charboneau say we cannot We have before the district prior to that was final intelligent ruling any decision to it could not “make an April despite fail the issuance of Charboneau on the the State’s applied to Cherniwchan, Conversely, it has been respond.” ure to sentencing on open still cases that were n. 578 P.2d at 246 n. 2. defen- (20) The distinction between twenty day re this date. purpose of the notice final before cases were give petitioner op “an dants whose quirement is to those whose is- issuance of Charboneau portunity to establish a material fact BISTLINE, Justice, dissenting. were not is a distinction. cases valid 314, 107 Kentucky, (1987),the United PROLOGUE recognized States this dis- Retroactive, prospective only, applica- or proper denying tinction as a for retro- basis law, tion of a new rule of is the theme of effect new rules to cases that are active opinion today’s offering, in this Court’s Therefore, already final. the Charboneau It Fetterly. v. comes before State interpretation of I.C. 19-2515 does not appeal judgment Court on from a of the present apply to the case because the denying Fetterly’s attempt to trial court present prior to the issuance action, post-conviction relief in a oth- obtain of Charboneau. system known in the federal court erwise holding dispos- Although necessarily our corpus proceeding. a The issues as habeas petitioner-appellant’s es of ineffective as- simplistic, being basi- before us are rather claim, sistance of counsel also note that rule cally pro and con as to whether a new reasonably is this claim one “that should be apply or will not to a convicted of law will immediately upon completion known yet pending on defendant whose status is post-convic- in the trial and can be raised a or, equally extend that appeal, to Rhoades, petition.” tion 120 Idaho at is rule to a defendant whose case petition- 820 P.2d at 677. Because of the yet appeal, the direct is closed as to but er’s failure to raise this claim in the first i.e., appeal, a defen- subject to collateral petition, the claim has been waived. seeking dant’s action the state post-conviction part relief from all or of the appeal from the trial court’s dismis- against him. It is an judgment rendered petitioner-appellant’s sal of second issue, important by and has so viewed hereby relief is dis- in Court of the United States missed. unequivocal. language which is clear and this is a To have such an issue before BAKES, BOYLE, J., C.J. and concur. this welcome event. course which remains to be seen. Court will elect to take JOHNSON, Justice, concurring in the undoubtedly It is an issue which should be result. circumspection, care and viewed with in happened McCoy, but not appeal to dismiss this State moved State v. Owens1. precluded by Fetterly for the reason that pro- pursuing 19-2719 from further I.C. §

ceedings respect he with to the issues has granted argument raised here. We on opinion of Justice My inability join only motion to dismiss and not on the mer- premised on the conclusion McDevitt is appeal. its of the Charboneau, 116 Idaho State appeal I apply concur dismissal of to this does not requires the basis that has not shown that the case. It does vacated, the issues he has raised on were not and that death sentence be resentencing. reasonably not have been No known and could cause be remanded to the prior appeals relative known at the time of his error is asserted prior post-conviction petition. conviction. cases were McCoy, issued while both P.2d 517 Sandstrom was

1. State Owens, (1980); pending direct review before this Court (1980). The interested reader will discover McCoy’s required the reversal of gross miscarriage justice upon inspection applied. The absence if it had been conviction comparison The Court of those two cases. principled for the deci- of a reason Montana, refused to Sandstrom v. differently McCoy led than Owens sion to treat U.S. McCoy’s justice. one to a dissent applying case while it in Owens' case. 19-2515(c) held that I.C. tioners on collateral can Ckarboneau review never bene- discretion as fol- limited the district court’s fit from the retroactive of cases lows: announced after their cases became final. As Justice Powell noted: may trial court sentence the defen-

[T]he death, only if the trial court finds today dant As the cases we decide involve that all the circumstances do pend- of decisions outweigh gravity review, of each of the ing necessary on direct it was not found and circumstances express opinion for the Court to imposition unjust. make the of death respect corpus petitions. As I habeas opinion, read the Court’s Ckarboneau, carefully open squarely left until it is added). (emphasis presented. stated its The district court this case (Powell, 329, 479 at 107 S.Ct. at 716 J. U.S. mitigating factors do not conclusion: “the concurring). outweigh gravity aggravating the of the unjust to make the written, circumstances so as the after those words were Soon imposition penalty.” of the death retroactivi- Supreme Court reformulated its attack ty doctrine for cases on collateral above, weigh court did not As shown the a writ of habeas way of a factors each of the the that, corpus. held in certain circum- It factors; weighed miti- it stances, applied rules would be retro- aggravat- gating against all of the factors those cases which were actively even to beyond that ing factors. It is cavil announced. the new rule was before engage in in this case did not court 288, 310, Lane, U.S. 109 Teague v. 489 legis- balancing procedure mandated 1075, 1060, 334 103 L.Ed.2d S.Ct. 19-2515(c). it enacted I.C. lature when distinguishing this Another feature Notwithstanding clear violation of in the latter case from is Griffith law, to vacate the declines application of a new the retroactive volved distinction between sentence because “[t]he rule, this case involves while constitutional cases were final before defendants whose application of a case which retroactive those the issuance Ckarboneau in Diggs The court interpreted a statute. In not is a valid one. whose cases were Cir.1987), (3d Owens, cert. 833 F.2d 439 v. Kentucky, 479 U.S. 107 v. Griffith 99 denied, 708, L.Ed.2d 649 the United 93 rule held that Griffith’s recognized this dis- Supreme Court States of constitutional limited to new rules denying proper retro- tinction as a basis no effect on thus has dimension. Griffith are new rules to case that active effect of decision this case because Ckarboneau problems There are three already final.” apply are asked to which we 1) does not analysis: Griffith rule, a new constitutional did not announce by the ma- proposition stated stand for the merely interpreted I.C. it 2) adopted this Court has never jority, Grif- law, required fully to nor is it has de- Supreme as the The California fith case, Idaho’s cur- under in where the adopt that cases clined to Griffith doctrine, retroactivity Ckarboneau state law rent decision of issue was whether fully retroactively. retroactive. It stated applied should be Murtishaw, 48 Cal.3d People v. 479 U.S. at Kentucky, In v. Griffith 821, 827, 178 P.2d Cal.Rptr. 773 258 Supreme the United States 107 S.Ct. at (1989): review, appellate direct held that on applies only conclude announcing [W]e constitutional a new decisions Griffith Constitution, federal on the rules based are prosecutions applicable to criminal rule supervisory judicial federal upon or pend- retroactively to all cases applied to be the re- decided itself power. yet are not ing direct review or which federal constitutional hold, troactivity of a new Supreme Court did final. The rule____ expressly the court Griffith, defendant-peti- majority suggests, that 421 deciding addressed the framework for at 85 S.Ct. at 1741. Linkletter was a retroactivity case, corpus “new constitutional habeas but pronged the three procedure”____ criminal rules of appeals. test was also used direct John- Grif- analysis proceeded assump- 719, 732, Jersey, son New U.S. fith’s others, tion, among 1772, 1780, that “basic norms of S.Ct. adjudication” constitutional are violated Idaho has used the three Linkletter deny application newly courts of “a when pronged appeals test in both direct pend- declared constitutional rule” to all collateral attacks to determine the retroac- ing litigants save the one whose case was e.g. tive effect of cases. See State Whit- (Id. U.S.], used to announce it. [479 489, 491, man, 322-323, 713-714, pp. pp. 107 S.Ct. at (1975) (a where the Court added.) italics Linkletter) State, Starkey cites analysis We need not extend this (1966) (a Idaho procedure solely rules of criminal derived collateral attack where the Court cites from As the state law. United States Linkletter). But this has not hereto- long ago, Court stated “[t]he adopted Griffith, required fore nor are we upon federal constitution has no voice cases like this one. Accord- subject of a new rule [of ingly, required it follows that we are not to defining state A in the of state law]. apply litigation. it in the instant Fetterly precedent may limits of adherence to No reason has been advanced which would prin- make a choice for itself between the justify seizing in our onto it the circum- ciple operation of and that of forward present. stances here (Gt. Ry. relation backward.” Northern Recently, this author on review of two Co., 358, 364, (1932) v. Sunburst 287 U.S. appeals has decried the retroactive 145, 148, 360.) 53 77 S.Ct. L.Ed. application Supreme of United States Carrera, 291, People Accord v. 49 Cal.3d cases the of which restrict level constitu- 348, 369-70, 121, 142 Cal.Rptr. 261 Card, protections. In 121 tional State v. 425, (1991), majori- Idaho 825 P.2d 1081 the sum, In the reliance on Grif- Tennessee, ty applied Payne 498 U.S. v. proposition for the that Charboneau fith -, 2597, (1991) 111 S.Ct. 115 L.Ed.2d 720 applied retroactively cannot be to cases overruled, retroactively. Payne part, in that were final when an- Charboneau was controlling precedent at the time of the soundly premised. nounced is not Griffith sentencing hearing dimin- defendant’s and simply does not serve as vehicle which protection ished the level of under the sought the can arrive at the desti- eighth Gallegos, In amendment. State v. nation. 894, (1991), the inapplicable gave Not to this retroactive effect to Griffith California — 1982, case, Acevedo, U.S.-, adopted it has never the 111 been law v. S.Ct. Griffith, reaching present in Idaho. in its 114 L.Ed.2d 619 which overruled 753, holding, High Sanders, 442 99 abandoned the Court’s earli- v. U.S. Arkansas 2586, (1979) retroactivity er rule set out in 61 L.Ed.2d 235 and de- Linkletter S.Ct. Walker, protection 14 under the 381 U.S. 85 S.Ct. creased the level of (1965). Likewise, dissenting Supreme fourth amendment. those opinions, in it was advocated that the Court Court abandoned Linkletter habeas cor- pus long-standing Teague. cases in Prior to and should its Whitman Griffith Card, retroactivity. Teague, question question in federal court of test to the (Bistline, applied retroactively 121 825 P.2d at 1117 whether a case Idaho 1) dissenting), by weighing, purpose Gallegos, determined J. (Bistline, concurring rule, 2) in placed the reliance 821 P.2d at 955 J. new dissenting part). in The author part

former rule the retroac- and effect expressed rule to maintain the views tive continues justice. Gallegos. in on the administration of 381 U.S. Card 422 majority opinions in by Card Galle- As Washington court, noted Grif gos strangely require does not give were silent on the state courts to fith full retroactive effect to those United retroactivity. provides This Supreme States Court decisions which re opportunity to ascertain where and what strict the amount protec of constitutional Unfortunately, is the state of the law. previously provided. tions Additionally, majority inexplicably cites to Griffith the states have pro are free to undeniably inapplicable which is to this greater protections vide under state law case. protections than those available under the however, Concededly, Supreme federal constitution. Washington See stated that its new Chrisman, 2, 102 U.S. n. applies rule to both state and federal cases (1982). Thus, 816 n. 70 L.Ed.2d 778 on direct review. To the extent that although required give this Court is to full Grif- is used to ensure a minimum level of retroactive effect to those cases which in

fith crease the protection, appears constitutional minimum level of constitutional protections {e.g., Kentucky), Batson v. it is Supremacy this Court is bound give full retroactive effect (U.S. VI) Clause Const. Art. free refuse to United States Court cases rule cases on direct review. For exam- which diminish the level of constitutional ple, applied retroactively the earlier case protections {e.g., Payne v. Tennessee and Griffith, Kentucky, Batson v. Acevedo). California in- protections proper today creased the course for this Court is available to a de- long standing to continue to adhere to its prosecution fendant who believes the Whitman, test as stated in excluding systematically members of his/ Idaho P.2d jury her race from the venire the use of applies That test to both direct review and preemptory challenges. convictions, collateral attacks of criminal not, Conversely, does its ex- Griffith exception with the of those cases on direct terms, press require state courts to applica- review which seek the retroactive disadvantage decisions which defendants procedure tion of rules criminal new retroactively. Washington Supreme increase the of constitutional which level Court has observed: protections applicable to the citizens of Ida- through ho the fourteenth amendment. In retroactivity itself of a involved Griffith cases, obliged those this Court is to follow proce- criminal new constitutional rule of rule. defendant, dure to the and is beneficial Griffith replete treating sim- with references to opinion should not be read ilarly situated defendants the same retroactivity overruling prior as our line of providing cases are all defendants whose cases. The has not asked this Court State rule, adopt a rather it yet the same as benefits argued should only has that Charboneau “lucky case was individual whose given effect under our not be retroactive announcing chosen as the occasion for existing petitioner Nor has the had rule. (Citations principle omit- the new ...” point opportunity out to ted.) Griffith, 479 U.S. Generally speak- ways. the errors of its at 716-17. ing, years has not been this Court over is thus unclear as to whether its Griffith guaran- laggard protecting insofar holding applies in cases where a new rule and the tees of both the Idaho Constitution disadvantage of defen- works to the Constitution, fore- of which a United States dant. opinion Her- example most is the of Justice Brown, 520, 543-44, Taylor Arregui, 113 Wash.2d Idaho man (1927).2 may the Court 254 P. 788 It be Hook, dissenting opinion: years ago in State v. in a Just seven Idaho it was written someday fully will embrace the able to mount a collateral attack on that do, If rule. it will be in a case on direct appears It basis. from the information only briefing by after full Court, currently available to the that the parties. overwhelming prisoners number of on death row were sentenced or resentenced Turning now to the factors of this after the issuance of Charboneau. Of the First, pur- Court’s Whitman decision. twenty-one prisoners currently on death pose holding of the Charboneau was to row, Pratt, Porter, Fields, (Ivey, twelve legislature. effectuate the intent of the Leavitt, Card, Rhoades, Pizzuto, Fain, application This favors the retroactive Hoffman, Paz, Lankford) and Mark were legislature the case. It was the which de- sentenced or resentenced after Charbo all creed that must factors be (Creech, prisoners neau was issued. Three weighed against each aggravating factor. Sivak, Lankford) Bryan awaiting are We noted then that: resentencing having after their sentences legislature If the had intended the miti- already vacated. We have held that Char gating weighed circumstances to be Stuart, boneau was not violated State v. aggravating all the as a found 865, 872-73, group, it referred to “the prisoners 1223-24 Thus five could circumstances found.” The plain meaning possibly appli of the statute our from the dictates benefit retroactive Charboneau, conclusion this issue. cation of two of which are Fetterly and Donald Albert Beam. Beam’s Charboneau, 774 P.2d at currently case is before Court. Apparently we were correct in our justice administration of will not come to a reading legisla- statute because the three, McKinney, standstill if the other ture has not seen fit to amend I.C. 2515(c) Paradis, during years. the last and Gibson receive a review of two light their sentences Charboneau. The second factor also Whitman favors view, justice’s this one our time and effort retroactive of Charboneau. spent ensuring should be that all defen There prior was no reliance on a rule be- dants to death sentenced have been afford cause Charboneau was first case to ed, compliance and will receive full with the interpret I.C. It would not be sentencing procedure legislature which the unfair to Charboneau has selected. relying upon because no one was a con- trary rule. Having determined that the factors factor, which this Court enunciated in

As Whitman to the third there will not be favor the retroactive of an adverse effect on Charbo- the administration of neau, justice if applied Charboneau is it follows that the district court retroac- tively very prisoners dismissing petition. Fetterly because few will be erred in the pointed pride changing game I have with the of a rules of the in Illinois v. native decision, Gates, Arregui point Idahoan to L.Ed.2d which in of 103 S.Ct. 76 Cortez, (1983), predated time the concerned involvement of and in United States v. 449 (1981). Supreme the United States Court in the area U.S. decisions, Sixty years ago of search and seizure. This Court in turn embraced those

Arregui respectively, Lang, Court could in State v. 105 Idaho Haworth, expediency 'see no such for the enforce- and in State v. law, any justify ment of as to violation of P.2d 1123 In both 106 Idaho rights accomplish suggested constitutional it. The of those cases I that a wise course average might shock to the sensibilities of the citizen be a slower course. 759-60, Hoak, government when his violates a constitutional 107 Idaho at 692 P.2d at written, right Arregui of another is far more evil than the At the time was 1191-92. Idaho, elsewhere, escape any through generally criminal the court’s law in and was the rights.’ against observance of those that was admissible an accused evidence irrespective competent 254 P. at 792. if and relative High up In due time the Court took the same manner in which it was obtained. Common- Tibbetts, cudgel, very constitutional but now in recent 157 Mass. 32 N.E. wealth (1893); times, High Myers, 211 P. 440 with the Court under a new stew- ardship, contrary, it has taken a turn to the poses” re- entitled to raise the issue on collateral of the ineffective assistance of issue, view because Charboneau was not known counsel and that the issue was appeal Fetterly’s to him at the time of his direct and waived because counsel should reasonably not have known to have and could known about issue raised it sentencing him at that time. Because the the first engage proper weigh- court did not observation, majority As to the first ing of each factor apparently means that not was factors, required by I.C. prejudiced by his counsel’s failure to raise Charboneau, 19-2515(c) holding 19-2515(c) issue because Charbo- the I.C. day this should be to vacate neau applied would not have challenged appeal on the the sentence However, since Charboneau to that case. resentencing. remand for was not issued until after we issued opinion Fetterly’s petition, it is diffi- first REHEARING ON PETITION FOR Charbo- question of cult to see how the Justice, BISTLINE, dissenting denial neau’s retroactive effect would have af- rehearing. petition point at all. More to the fected that case Fetterly’s that if counsel had raised Adhering to the view that State v. Char- 19-2515(c) issue, undoubtedly we I.C. § boneau, interpreted the statute have would va- applies retroactively, this Justice would way just eight did months later same and remand Fetterly’s cate death sentence have re- Charboneau would hearing. sentencing the cause for a new sentencing hearing. a new ceived granted Additionally, rehearing should be observation, ineffective The second for the to reconsider the claim is waived the ineffective assistance claim. assistance of counsel brought in the it should have been because original Fetterly argues that his coun- petition, first is unsound. he did not sel1 was ineffective because counsel was ineffec- us is whether before challenge the sentence under I.C. § argue that Fetter- he failed to tive because 2515(c) appeal first during direct on the in accordance with ly was not sentenced petition relief. question cannot be That I.C. § recognized has two constituting saying the act answered necessary to a criminal defen- components consti- representation also the ineffective of ineffective assistance of dant’s claim the ineffective assistance tutes a waiver of counsel: apparently does issue. The First, defendant must show during his Fetterly’s counsel realize that deficient____ performance was counsel’s first Second, must show that the defendant Fetterly now claims attorney who same prejudiced the performance the deficient real- majority cannot was ineffective. defense____ a defendant makes Unless to have Fetterly’s former counsel ly expect said that the showings it cannot be both peti- first in the argued he ineffective was resulted or death sentence conviction an obvious a situation would be tion. Such adversary in the from a breakdown Fetterly put it: As conflict of interest. the result unrelia- process that renders say, given the How can this Court ble. scenario, ineffective foregoing Washington, Strickland should have claim of counsel assistance post first raised in the been State, see Gibson v. supposed he relief? ... Was conviction P.2d failing to ineffective to realize he was in ac- 19-2515 interpret Idaho Code Fetterly’s by claim majority discards appar- It is with Charboneau? that the conclusion that Char- cordance observing: that Peti- this Court ently position of “necessarily dis- boneau is not retroactive ' Fetterly represented different counsel on is 1. original counsel should be able to

tioner’s spot his sit around office and Idaho, Plaintiff-Respondent, STATE those issues which should be raised appeal, spot but also those issues raise the first time around. he failed to CARD, David Leslie Defendant- ignores allegation This the facts that the Appellant. is of ineffective assistance of counsel upon premise a that a second attor- built No. 18313. case, prior ney steps into the reviews Idaho, Supreme Court of finds some attorney’s performance, and Term. March 1991 Caldwell prior attorney area which deficient. Dec. Ultimately, for the Court Rehearing Denied Feb. process is whether due is satisfied when capital provided appointed a defendant is appointed fails

counsel and that counsel recognize his errors when the own

original post conviction relief action

filed. If those errors can never be raised time, any original ap- then later effectively

pointed counsel becomes capital

participant in the death of the

defendant, original counsel’s because point

failure to out his own errors effec-

tively any errors from insulates those

later review. view, disposition of my of counsel claim ineffective assistance inadequate. wholly We should address on the merits. If the issue that,

were to do it would find that

has made out a claim of ineffective assist-

ance of counsel. disputes

No one that the district court balancing procedure engage

did not legislature in I.C.

mandated

2515(c). argu- If counsel had raised received a new

ment Thus, part of

sentencing hearing. the first test has met.

the Strickland

Further, sentencing the loss of that hear- showing prejudice

ing is a sufficient part the second Strickland

meet Thus, original my for the reasons in

test. peti-

dissent and the reasons raised rehearing, grant I rehear-

tion for would remand

ing, the death sentence and vacate resentencing.

Case Details

Case Name: Fetterly v. State

Court Name: Idaho Supreme Court

Date Published: Dec 19, 1991

Citation: 825 P.2d 1073

Docket Number: 18966

Court Abbreviation: Idaho