*1 appellant’s assurance that he did not qualified appear pro As a re- feel se. IVEY, Benjamin David Petitioner- sult, the trial left Mr. court unclear Appellant, sentencing hearing, as to his status at evidence, prepared present mitigating fruition, yet appellant in its frustrated Idaho, Respondent. STATE effectively was denied assistance of coun- No. 19644. sel. The trial court should have resolved representation prior the issue of to sentenc- Idaho, Supreme Court ing by denying request for new counsel Boise, 1992 Term. November directing proceed; counsel to continu- Dec. ing the matter for a determination issue; explaining proceeding risks of Rehearing Denied Jan. defendant, pro then if se that fully
court determined the defendant
understood those risks and the effect of decision, permitting the defendant proceed pro se.1 accordingly
The sentence is vacated and sentencing
the case remanded for consis- opinion. foregoing
tent with this unnecessary
cussion renders treatment of remaining issues this time.
BAKES, C.J., BISTLINE, TROUT, JJ.,
JOHNSON and
concur.
G. tioner-appellant. EchoHawk,
Larry Atty. Lynn Gen. Gen., Thomas, Atty. Deputy argued, E. Boise, respondent.
McDEVITT, Justice. THE CASE
STATEMENT OF
petitioner, Benja-
May
On
Ivey,
min David
was sentenced to death
degree
court
the first
mur-
the district
Immediately
Friesen.
fol-
der Marlene
sentence,
lowing
Mr.
post-convic-
Van
petitioner.
trial’
tion relief on behalf of
appointed Lamarr Ko-
subsequently
court
represent Ivey
petition,
on the
be-
foed
a claim
cause the basis
was
of ineffective assistance
on Au-
Kofoed filed
amended
response, filed
gust
1991. The State’s
August 23,
all
denied
requested summary dismissal of
tion,
emphasizing the lack of
factual
August 28, 1991,
support.
On
tíoner’s alibi
revealed
petitioned
Shortly
for an extension
Court
would
claimed.
post-
of time in
dispose
filed,
order
after the
proceedings.
then filed a
requested
hearing
petition.
on his
*3
out
supporting
setting
with some
responded by
an order
dismissal
prove
specificity what
intended to
at the
21, 1991, holding
peti-
that
filed October
hearing
to demonstrate
lack of
the
showing required
tioner had not made the
representation
Ivey alleges
at trial.
that
612,
State,
by Drapeau v.
103
651
Idaho
the
Mr.
failed to
(Ct.App.1982).1
P.2d 546
effectively represent petitioner’s
interest
Petitioner
this
to vacate
entreats
Court
for,
preparation
his
and his conduct at trial.
sentence,
grant
to
petitioner
Specifically,
asserts
that Mr.
newly appointed
new
defense
trial with
Bishop failed to vigorously cross-examine
counsel.
witnesses,
perjured
State’s
allowed
tes-
timony
go unchallenged, intentionally
to
re-
I.
fused to use available rebuttal evidence
witnesses,
vigorously
and failed
in-
to
STANDARD OF REVIEW
vestigate
that may
evidence
have led to the
petition
post-conviction
A
for
re
Moreover,
petitioner
true
murderer.
lief is in
nature of
proceeding,
a civil
Bishop
against
contends
Mr.
went
his
entirely
underly
new and distinct from the
wishes, attempting
portray
to
him as hav-
ing
State,
criminal action.
v.
Peltier
119
sentencing
a mental defect at the
hear-
454,
Idaho
P.2d 373
808
Idaho Code
ing.
Bishop
filed supporting
affida-
19-4906(c)governs the
situation which
§
representation
vit
his
of Ivey.
summary disposition
post-
of a
All of Ivey's
relating
contentions
to trial
is appropriate.2
conviction relief
In Peltier
performance
counsel’s
by
are answered Mr.
State,
454,
(1991),
119 Idaho
(7.) promised public defender My witnesses, given their cir- tially flung far strong vigorous cross-examination of Angel Michael and lack of means. State’s witnesses cumstances Lane, but failed to do so. Cameron 56(e) assuming applies to a Even prosecuting attorney The then R. 11-12.3 relief, just it is petition for from Van filed an affidavit allegations in likely as not that disputed each of the personal are made from Ivey’s petition allegations response, Ivey above. wrong in de- knowledge. majority alleging specific an more facts.4 affidavit claring Ivey's allegations only “can mind, allegations by Ivey made my To defendant has product hearsay, of material fact as to wheth- raise issue been incarcerated since indictment can- Bishop provided er effective assistance of knowledge possibly personal Therefore, I the dismissal believe added). (emphasis A Bishop’s conduct” improper was under Mat- reading Ivey’s belies the close thews. curiously summary contention. allegations majority dismisses The facts contained they alleg- in Ivey’s made affidavit because occur) (or during occurred failed edly comply fail to with “Rule trial, present. Ivey presumably when was Procedure, which re- Idaho Rules Civil easily have ascertained could quires to be made on 2, 3, 4, by5 underlying allegations *6 knowledge setting forth facts that would instance, Bishop. For to speaking to as 80,At be admissible at trial.” Ivey jail could have allegation from even except logic This sound for 709. would be Bishop subpoe- had asked whether apply the fact that I.R.C.P. does wife, Ivey certainly would Ivey’s naed 56(e) applies in this to affida- case. personal knowledge to whether she have support opposition filed in of or in to vits Ivey testify If ascer- was called to at trial. summary pursuant judgment to I.R.C.P. Bishop, it information from tained this 56(aHb). in No this such motion was hearsay, pursuant to I.R.E. would not be case. The motion filed the State was 801(d)(2). point here is to deter- The 19-4906(c). pursuant That statute to I.C. § hearsay exception such a mine under requirements for affi- does not contain the point The is show statement would fall. 56(e).5 in It davits found I.R.C.P. is is admissible that whether the evidence legislature require peti- the decided to not rendering even conjectural, thus somewhat opposition in a tioner’s affidavits necessary more high meet the stan- 19-4906 dismissal to above, Furthermore, since, a as stated 56(e), object I to the of I.R.C.P. dards light the evidence in the court must view attempt engraft a rule onto Court’s likelihood, petitioner, it would most statutory procedure. In all favorable the Arkansas, goes allege 107 S.Ct. deprived he Rock v. that was the 3. at sen- to effective assistance of counsel L.Ed.2d 37 tencing. agrees Ivey’s allega- This Court recently regard, in as we have vacated this majority 5.Perhaps is because confused sentence for the same reasons his death to dismiss which hold that motion our cases petition. Ivey, alleged in his is relief similar to for summary judgment in all facts light in most favorable must be construed alleged, rebutting Ivey’s in Bish- Matthews, e.g. non-moving party. op's did not allow him to (1992). We at 1221 Idaho at behalf, though Ivey even on his own held, however, governing that the rules never requested repeatedly that he be allowed do true, relief, summary apply petitions post- Ivey to If this could entitle since so. testify at relief. have a trial. See defendants pre- precious involved, seem a court must also liberty view is value liminary admissibility very this Court should be cautious in con- light. Hence, in the same evidence doning disposal of these actions in their trial court should have erred on the side of stage initial on technicalities. assuming, purposes dismiss- proceedings, Ivey’s allegations
al knowledge.
made from majority opin-
As noted in the above
ion, this the facts in case must be read petitioner, most favorable to the Ivey. majority contradicts this state- Idaho, Plaintiff-Respondent, STATE of ment, however, places “strong presumption in competency” upon favor of stage proceedings. We WAVRICK, Johnny E. Defendant- apply should not presump- Strickland Appellant.
tion, weighing evidence, which involves No. 19447. evidentiary until an hearing has occurred. majority really doing What the is by apply- Appeals Court of of Idaho. ing presumption stage weigh- at this Dec. by balancing Ivey’s allega- the evidence incompetency against tions of Bishop’s de- competency.
fense of state-
ment, that while accept peti- court must true,
tioner’s allegations” “unrebutted accept “conclusions,”
need not
might be seen as no sleight more than a
hand. A accept court must rebutted alle-
gations in the light most favorable to short,
tioner as well. whether
alleged failings prejudiced Ivey ques- is a
tion of fact. alleged failings has resulting prejudice. The court must
accept allegation in the most Ivey.
favorable to
It is also instructive to turn to I.R.C.P.
1(a), since the Idaho Rules of Civil Proce- generally
dure apply pro-
ceedings. Goodrich, State v. 1(a)
claims the I.R.C.P. “These rules liberally
shall be construed to secure the
just, speedy inexpensive determination every proceeding.” action and
I strongly doubt
position of just. this case is Although a relief is civil in
nature, Goodrich, above, see State v.
cannot denied that there is a criminal well; by very nature,
law aspect its alleged addresses error in a crimi-
nal proceeding alleges illegal in-
fringement upon petitioner’s liberty. Since