Parrott v. State
787 P.2d 258
Idaho
1990
Check Treatment

*1 Chase, required

473, was as deficient as it was in Cooke. thing would be one appellate for an

court to “review” record and then de- insufficient,

clare the quite thing

another to declare that the evidence

sustains the trial court’s decision and find- giving without ings an iota indication nature evidence. Actually, in litigants

both instances the are entitled to

have the evidence disclosed and to be di- (if

rected to the insufficiencies declared

insufficient) or to what Court deter-

mines the evidence to be and to some ex- why

tent it is sufficiently considered clear convincing.

and Supreme

The performed Idaho Court Whyte, Claunch v.

that function in and case, Chase

also in the magnif but it failed case, in Cooke

icently again it failed in case, appears failing and far it in so be Fork Coalition v. South

the recent case of County Commissioners Bonneville 857, 792 (1990).5

County, P.2d 882

787 P.2d 258 PARROTT,

Larry Peter

Petitioner-appellant, Idaho, Respondent.

STATE

No. 17294.

Supreme Court Idaho.

Feb. reversing, correctly quantum 5. In South Fork the of evidence was der the case was issue, implicitly restyled proceedings seemed to have in this Court as J.R. Coalition, Sons, preponderance Hays & Inc. v. South Fork considered under the standard. progressed P.2d 1009 The Board of The case as it from an initial deci- County County a Commissioners was not involved as sion the Board of Commissioners parties mis-styled party on the The adversarial became thereafter as South Fork Coa- against use of that all times were South Fork Coalition lition v. Board. This resulted from II, Hays peti- Hays. Strangely, styling a in South Fork when South Fork Coalition filed only appellant requesting appear, although it was the tion in district court that the district II, jurisdiction judicial South Fork South Fork I. Rather it was in court assume and conduct maker, Board, through provi- under the initial decision review of the Board’s final decision argued against appeared South Procedures Act. On its counsel sions of the Administrative completion court review and or- Fork Coalition. of the district *2 Barini-Garcia, Falls, Idaho, Lisa A. Twin appellant. Jones, Gen., Lawrence Atty. Jim G. Was- Gen., den, Deputy Atty. argued, Boise, Ida- ho, respondent.

WINMILL, Pro Tern. Justice 1, 1985, Larry March Peter Parrott On charged having in- with committed an against famous crime nature.1 The court appointed County Falls Twin Public Following Defender as Parrott’s counsel. guilty plea arraignment, a not entry case for trial on Parrott’s was set June continuances, After two the case 1985. 13,1985. August to trial Pri- proceeded on original counsel re- or defender, public Timothy and signed as pub- position acting assumed Wilson lic defender. day trial Mr. Wilson re-

On the before on quested a continuance based his inabili- and his ty to contact witnesses lack motion was denied. The preparation. The tried defendant case was and the convicted. Following conviction, a motion for new motion, Upon filed. trial was pushed complaining and that into Par- At trial witness testified she was (cid:127) passed perform came to bedroom she was forced to two drinks she out and where after being of fellatio. beaten about head and back an act while discharged public defender may raise the issue on direct proceed pro allowed se. His proceedings, reserve it for denied, motion for a new trial was he not do both. If the issue is raised Parrott was sentenced to an indeterminate appeal, and considered on it becomes res life sentence. judicata. Accord Parrott filed a notice of but later Paradis v. *3 moved to withdraw This Court State, (1986); Gibson 1306 v. 110 Idaho se, Proceeding pro granted his motion. 631, (1986). 718 P.2d 283 Parrott petitioned the district court post for conviction relief primarily based appeal Since Parrott’s first was upon allegation an of ineffective assistance briefing argu withdrawn before or oral of counsel. He then retained counsel who ment, the issue of ineffective assistance of represented opposition him in to the State’s by counsel has not been considered summary petition motion for denial of his Accordingly, appellate Court. the earlier post for conviction relief. judicata has no res proceeding effect on post proceedings. conviction relief 13, 1987,

On October the State’s motion mayWe therefore consider the merits of summary for disposition was heard. Par- petition. deposition rott’s counsel filed the of trial Timothy counsel Wilson and four affida- Turning argument to Parrott’s granted vits. The court the State’s motion dismissing the district court erred in summary disposition for and dismissed Par- petition evidentiary hearing, without an petition evidentiary without an hear- first note the standard of A trial review. ing. appeals grant- order now may grant party a motion either ing summary disposition and asks for a summary disposition application for of an evidentiary hearing. remand for an post appears for relief conviction where it First, appeal This raises issues. two pleadings genuine from the that there is no may whether a defendant raise an issue of 19-4906(c). issue material fact. I.C. § peti- in ineffective assistance of counsel However, where issues of material fact ex post tion for relief conviction where that ist, evidentiary hearing an must be held. appeal, issue raised in an earlier State, 19-4907; v. Stone I.C. 108 Idaho § voluntarily withdrawn 822, 824, 860, (Ct.App.1985); 862 decision; second, prior the defendant to State, Drapeau 612, v. 103 Idaho dismissing in whether the trial court erred (Ct.App.1982). 546 petition without an evi- On this Court must decide dentiary hearing. address each of We will disposition summary whether the State’s these issues turn. properly granted. This re motion was Proce quires light

The Uniform Post Conviction in a that we view facts whereby a provides petitioner, dure Act a mechanism most favorable to the and deter person may present of a crime they convicted would entitle him to mine whether evidence, v. presented not or heard at Williams accepted relief if as true. State, 685, requires (Ct.App. vacation the conviction P.2d 94 which 113 Idaho State, 19-4901(a). justice. 1987); 659, I.C. v. the interest 114 Idaho § Wolfe such, provides appropriate Act (Ct.App.1988)(petition As for review P.2d 950 considering 8, 1988). denied, claims of inef this re mechanism December While petitioner’s fective assistance of counsel. alle quires that the unrebutted true, accepted gations as we are be However, post pro conviction relief petitioner’s conclu required accept proceed ceedings are not a substitute v. sions. court, appeal from ings in the trial or of an (1979). P.2d 1005 conviction. I.C. sentence must be 19-4901(b). alleg This standard of review Although a defendant § in the context of the defendant’s at trial considered ing ineffective assistance counsel presented at usage beyond assist- the evidence claim that he was denied effective short, the record does not indicate ance of counsel at trial. To establish that trial. right have dis- anything his constitutional to effective assist- which trial violated, diligent of counsel has been a defen- ance covered from a proceedings dant in criminal must demon- admissible and which would have been both only perform- produce strate not that his counsel’s a different outcome at likely to deficient, ance was but that the deficient trial.

performance prejudiced so his defense as to Next, argues that his trial coun- deprive him of a fair trial. Strickland witness, potential sel failed to locate one Washington, 466 104 S.Ct. U.S. subpoena another witness located (1984); State, 112 80 L.Ed.2d 674 Storm v. subpoena just and failed before (1987); 735 P.2d 1029 Estes v. days trial. any witnesses until five before 725 P.2d 135 However, assuming allegations to these be performance, To establish deficient a de- true, as is no indication in the record there *4 repre- must fendant show that “counsel’s might testi- to these witnesses have how objective fell below an standard sentation fied, testimony might have and how their of reasonableness.” v. Strickland Wash- outcome of the trial. The affected the 668, ington, 466 U.S. at 104 S.Ct. at 2065. summary disposition of this district court’s showing prove prejudice requires To that appropriate. claim was therefore that, probability is a reasonable “[t]here attorney complains that his Parrott also errors, unprofessional but for counsel’s the at called two witnesses to the stand trial proceeding of the been result would have testimony. who contradicted one another’s different.” Id. 104 S.Ct. at 2068. Accord However, any record is indi- the devoid State, P.2d v. 110 Idaho 718 Gibson cation that this contradiction would have (1986). by investigation, further or been resolved points failings to a number of on that the result at trial would have been counsel, part the of his trial all of which contradictory different had such evidence preparation. his focus on counsel’s lack of presented jury. According- to the not been argues Parrott first that his trial counsel summary ly, sustain the district court’s investigation an into the failed to conduct issue. disposition of this credibility, reputation victim’s her for attorney Parrott asserts that his truthfulness, conduct, prior her sexual adequately prior consult him failed to with mind-altering drugs her use of on the date during Again, trial. the defendant’s to of the crime. unsupported by any argument stands evi allega accepts if one Even further consultation would dence as to how attorney’s pretrial investiga tions that his at There changed have the outcome trial. inadequate, was there has been no tion is indication in the record that Parrott no showing thorough investiga a more that he did not have had vital information which produced result tion would have a different to his at opportunity the to communicate has not directed our atten at trial. Parrott that torney. any Nor is there indication any to evidence which his trial tion appropriate input in Parrott did not have might concerning the vic have discovered strategy. planning the of trial Without reputation for veracity lack of or her tim’s in the record as to how some indication been admis promiscuity which would have might affected further consultation have might effectively cast or which have sible trial, disposition summary the results testimony. doubt on her trial See Storm Drapeau v. appropriate. See was (Ct. Likewise, of the victim’s use App.1982). drugs presented to prescription was general Finally, makes the in the there is no indication jury, and attorney pre argument his thorough that a more record implement a and did not drug pared for trial led to further evidence would have SHEPARD, J., strategy.2 Accepting coherent trial these sat but did not true, opinion in this participate prior to his allegations as record does not untimely death. a material disclose issue of fact as to how trial counsel’s Par- conduct contributed to JOHNSON, Justice, concurring conviction. Nor does the record re- specially. preparation veal how increased or a more agree summary judgment I that the en- developed strategy trial by tered the trial be affirmed. court should changed outcome at trial. As However, premise I would decision on case, spent trial counsel could have ques- presented the fact that Parrott preparing develop- time in and in trial tion of ineffective assistance of counsel ing strategy. expenditure Such court on his for new the trial motion time have led to more effective cross appealed the denial of a trial court’s witnesses, of the to a examination State’s subsequently new trial and withdrew evidence, explanation of view, better troublesome my attempt In by to the elimination of inconsistencies the issue of assistance raise ineffective witnesses, way post-conviction relief is barred testimony of defense and to dis- preclusion judi- of claim or res the doctrine covery the defen- supportive of evidence cata. However, specu- dant’s case. this is sheer showing There has factual

lation. been no ruling on the motion new a lack of prejudiced that Parrott said: trial court preparation developed strategy. or a trial point inadequacy of The second is the *5 Accordingly, we that the district court going find The court to make a counsel. is finding not neces- that is correctly determined that it was two-fold. hearing

sary evidentiary conduct an on inadequacy if in of Again, fact there is representation, trial would issue. counsel a new granted, it would to be because have record summary, we conclude that the Mr. constitutional violate genuine district before the court revealed very rights, in this Mr. Parrott case material as to whether trial issues of fact accurately standard for stated that the However, conduct deficient. counsel’s is an granting a new where there genuine issue record did not disclose a the of alleged inadequate representation that, finding support a of fact which would counsel, representation adequate that the the performance, but for counsel’s deficient evi- uncovered substantial been dif- outcome of the trial would have out, brought that that was not dence that Par- We therefore conclude ferent. result, changed or sub- have would showing prima failed to make a rott facie could have evidence that stantial ineffective- prejudiced by the that he was agree with changed the result. I would neces- assigned to It ness he his counsel. have to that he wouldn’t Mr. court was sarily follows that the district acquitted. that he would be show summarily disposing of Parrott’s correct Mr. permitted In this case court relief. petition for who, in call Parrott to several witnesses that opinion, have shown the court’s that evidence there has been substantial JOHNSON, J., BAKES, C.J., and the fact that produced, therefore was not concur. is a continuance Parrott was denied Mr. HUNTLEY, J., granting new trial. ground sat but a not a fact, if, had been prior to his Mr. Parrott opinion in this Because participate continuance, indica- there is no granted a resignation. However, holding, deem it in view our points which to a number of incidents arguably relied during unnecessary dem- incident trial which to deal with each occurred onstrate preparation and appellant. his counsel’s lack of upon by strategy. meaningful develop trial a failure to tion that further defense would have uncovered substan- SPRUELL, A. 566 60 James SSA

tial—uncovered evidence that would have Claimant-Appellant, any had kind of changing likelihood of the result. CORPORATION, ALLIED MEADOWS going ruling The court is to make a Quick Lube, Mountaintop dba representation by Mr. Wilson at Employer-Respondent, inadequate. trial was not was, course, jury his first however feels competent job that a Idaho, Department State of done over all. Employment, Respondent. After completed a case is there are No. 17541.

ways second-guessing, that he could more, have cross examined could have Supreme Court Idaho. drugs, raised the issue of however it was 15, 1990. Feb. trial. Therefore Mr. Wilson competent competently represent did the defen-

dant at trial. pre-trial investigation,

The lack of court, opposed

was denied as

any desire part, willful on Mr. Wilson’s

would not have resulted in other being Therefore, produced. is there

court will rule that in this case grounds inadequa- new trial on counsel, cy either for Mr. Wilson hav-

ing pre-trial his hands tied for lack of

preparation, or for inadequately trying added.) (Emphasis

the case. *6 Having day had his in the trial court on n issue, appealed

this to this Later, appeal. he

Court. withdrew the

is clear that if Parrott had continued with

his and if this Court had affirmed of a new denial decision precluded

this Court him from

again raising by way post- the issue of a application. 671, 674, complete original

Parrott’s failure to give of this issue does not him

greater status to raise the issue

proceeding. denying The decision new

trial based on ineffective assistance of final Parrott with-

counsel became when

drew his