Douglas E. STUART, Petitioner-Appellant, v. STATE of Idaho, Respondent.
No. 32445.
Court of Appeals of Idaho.
Dec. 5, 2007.
Review Denied March 26, 2008.
180 P.3d 506
E. Conclusion.
In this case, there is absolutely no ambiguity that the detached garage constitutes an outbuilding. It is uncontroverted that Arreguin‘s detached garage constitutes an outbuilding under every definition of that word. Ambiguity as to whether Arreguin‘s garage is an outbuilding cannot be created simply because it may be unclear whether or not some other hypothetical structures are outbuildings. Therefore, the judgment of the district court should be affirmed.
Justice W. JONES, concurs.
Hon. Lawrence G. Wasden, Attorney General; Daniel W. Bower, Deputy Attorney General, Boise, for respondent. Daniel W. Bower argued.
PERRY, Chief Judge.
Douglas E. Stuart appeals from the district court‘s order summarily dismissing his application for post-conviction relief. For the reasons set forth below, we affirm.
I. FACTS AND PROCEDURE
Stuart pled guilty to felony eluding a peace officer.
Stuart appealed. His appellate brief asserted that the district court failed to provide him with adequate notice prior to summarily dismissing his claim. The state moved to have the case remanded to the district court to provide Stuart with notice on a claim not addressed in the state‘s motion for summary dismissal. Stuart stipulated to the motion and the case was remanded. The district court filed a notice of intent to dismiss Stuart‘s application, which contained identical reasons for dismissal as the district court‘s original order dismissing his application. Twenty-one days later, the district court summarily dismissed Stuart‘s application. Stuart again appeals, having filed a revised appellate brief.
An application for post-conviction relief initiates a proceeding that is civil in nature. State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct.App.1992). Like a plaintiff in a civil action, the applicant must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based.
On review of a dismissal of a post-conviction relief application without an evidentiary hearing, we determine whether a genuine issue of fact exists based on the pleadings, depositions, and admissions together with any affidavits on file; moreover, the court liberally construes the facts and reasonable inferences in favor of the nonmoving party. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct.App.1993).
III. ANALYSIS
In Stuart‘s revised appellate brief, he addresses only the dismissal of his ineffective assistance claim regarding the presentence investigation. Stuart asserts that the district court erred in not determining that preparation of a PSI is a critical stage of the proceedings during which Stuart was entitled to effective assistance of counsel. Stuart next asserts that the district court erred in ruling that Stuart had not shown counsel‘s performance was deficient and that he was prejudiced by counsel‘s shortcomings. Stuart asserts we should remand to the district court for factual findings as to which portions of the PSI influenced the district court in sentencing and for a determination of whether Stuart was prejudiced by counsel‘s failure to assist him in completing the PSI questionnaire.1
In Estrada, the Idaho Supreme Court held that “a defendant has a Sixth Amendment right to counsel regarding the decision of whether to submit to a psychosexual exam.” Id. at 562-63, 149 P.3d at 837-38. In so holding, the Court distinguished a psychosexual exam from a routine presentence investigation. The Court stated:
A psychosexual exam concerned with the future dangerousness of a defendant is distinguishable from a “routine” presentence investigation. Specifically, Idaho Rule of Criminal Procedure 32 does not require a defendant‘s participation in a presentence investigation report, whereas
I.C. § 18-8316 states, “If ordered by the court, an offender shall submit to [a psychosexual] evaluation....” The presentence report relies greatly on information already available in public records, such as educational background, residence history and employment information. See I.C.R. 32(b). In contrast, a psychosexual evaluation like the one Estrada faced is more in-depth and personal, and includes an inquiry into the defendant‘s sexual history, with verification by polygraph being highly recommended. Because of the nature of the information sought, a defendant is more likely to make incriminating statements during a psychosexual evaluation than during a routine presentence investigation. As the district court in this case concluded, “the psychosexual evaluation contained information concerning Estrada‘s ‘future dangerousness.’ ”
Id. at 562, 149 P.3d at 837. Although the Court was not directly addressing the issue, the Court appears to have indicated that a “routine” presentence investigation is not a critical stage.
The majority of other courts to directly address this issue agree with the indication in Estrada. Several federal courts have held that a routine presentence investigation is not a critical stage of the proceedings in a non-capital case. See United States v. Benlian, 63 F.3d 824, 827 (9th Cir.1995); United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir.1993); United States v. Tisdale, 952 F.2d 934, 940 (6th Cir.1992); United States v. Hicks, 948 F.2d 877, 885 (4th Cir.1991); United States v. Woods, 907 F.2d 1540, 1543 (5th Cir.1990); United States v. Jackson, 886 F.2d 838, 845 (7th Cir.1989). Furthermore, many state courts have likewise concluded that a non-capital presentence investigation is not a critical stage. See e.g. Musgrove v. State, 638 So.2d 1347, 1352 (Ala.Crim.App.1992), aff‘d 638 So.2d 1360, 1363 n. 1 (Ala.1993); Lang v. State, 461 N.E.2d 1110, 1115–16 (Ind.1984); People v. Daniels, 149 Mich.App. 602, 386 N.W.2d 609, 613 (1986); State v. Barber, 494 N.W.2d 497, 501-02 (Minn.Ct.App.1993); People v. Cortijo, 291 A.D.2d 352, 352, 739 N.Y.S.2d 19 (2002); State v. Knapp, 111 Wis.2d 380, 330 N.W.2d 242, 245 (Ct.App.1983).
Despite the majority view of other courts, Stuart maintains that he was entitled to effective assistance of counsel prior to and during his presentence investigation. Stuart‘s affidavit averred that counsel did not help him fill out the PSI questionnaire. Stuart, however, has not distinguished his presentence investigation from any other routine presentence investigation. Stuart‘s reliance on United States v. Leonti, 326 F.3d 1111 (9th Cir.2003), therefore, is misplaced. In Leonti, the court held that the defendant was entitled to assistance of counsel in his attempts to provide substantial assistance to the government under the Federal Sentencing Guidelines—a procedure that is “far from being routine” and is “marked by significant uncertainty and the accompanying possibilities for prejudice to the defendant‘s interests.” Id. at 1120. Furthermore, Stuart‘s assertion that we must remand for the district court to determine if his presentence interview was a critical stage is unpersuasive. The district court apparently assumed, without deciding, that the presentence interview was a critical stage. Otherwise, the district court would have had no need to address whether counsel‘s performance was ineffective. We hold that Stuart‘s routine presentence interview was not a critical stage of the adversarial proceedings. Stuart‘s counsel could not, therefore, have provided ineffective assistance by failing to advise Stuart prior to or during the interview and in failing to help him fill out the presentence questionnaire.
IV. CONCLUSION
Stuart‘s routine presentence interview was not a critical stage of the adversarial proceedings and, therefore, Stuart‘s counsel could not have provided ineffective assistance by failing to advise Stuart concerning his presentence investigation. We affirm the district court‘s order summarily dismissing Stuart‘s application for post-conviction relief. No costs or attorney fees are awarded on appeal.
Judge Pro Tem WALTERS, CONCURS.
With the record before this Court, I am compelled to join in the majority‘s view that the presentence investigation process is not a critical stage of the adversarial proceedings. The presentence questionnaire and the presentence investigation report alluded to in the briefs and at oral argument were not made a part of the record on appeal. With an incomplete record before us, the missing presentence questionnaire and presentence investigation report must be presumed to support the action of the trial court. Hoffman v. State, 125 Idaho 188, 191, 868 P.2d 516, 519 (Ct.App.1994). Thus, the majority‘s analysis could only rely on the characterization of presentence investigations in Idaho as being “routine” and delving into information that for the most part is available in public records. See Estrada v. State, 143 Idaho 558, 562, 149 P.3d 833, 837 (2006).
I do not read Estrada as broadly as the majority and can see where a different conclusion may result after careful examination of Idaho‘s presentence investigation process. There may be substantial similarities with psychosexual evaluations and the numerous evaluations and testing that can be part of the presentence investigation process. For instance, during a presentence investigation, a probation officer may conduct domestic violence evaluations and drug and alcohol evaluations. Additionally, Stuart‘s counsel asserted at oral argument that probation officers now conduct several intrusive evaluations as part of a “routine” presentence interview. These include the “TCU” which counsel represented as a “drug testing instrument,” an “LSIR” which counsel represented as a “Level of Services Inventory Revised” assessment to determine what types of programming are relevant in the correctional setting, and a “GAAN” assessment.
Additionally, it is noteworthy that at least one federal circuit suggests that under the new federal guidelines system, the presentence investigation process may be a critical stage. See United States v. Colon, 905 F.2d 580, 588 (2d Cir.1990). In Colon, the court noted that, under the new federal sentencing
One of the most recent states to address the issue squarely was Vermont in 2004. See In re Carter, 176 Vt. 322, 848 A.2d 281 (2004). In Carter, the post-conviction petitioner, after attempting unsuccessfully to invoke the right to counsel during the presentence interview, made damaging statements to probation officers which “ensured that he would spend virtually all of his adult life in jail.” Id. at 296. The court initially held that a defendant‘s right to counsel under the Sixth Amendment depends primarily on the possibility of prejudice and unfairness in the proceedings and the ability of the presence of counsel to protect against such prejudice and unfairness. Id. at 300. The court noted that the federal cases holding that a presentence interview is not a critical stage were distinguishable because probation officers who prepare the reports in the federal system are employees of the judicial branch who answer to no one but the sentencing judge. In contrast, probation officers in Vermont who prepare the reports are employees of the executive branch, responsible to the Commissioner of Corrections. The court acknowledged that probation officers who prepare reports in Vermont are normally not agents of the prosecutors, and the prosecutors do not direct the actions of the probation officers. At the sentencing hearing in Carter, however, the prosecutor presented testimony from the officer emphasizing the reasons for a long sentence of incarceration, which led the court to conclude that the officer became, in essence, an expert witness for the prosecution in the adversary sentencing hearing. The Vermont court held that the presentence interview was a critical stage of the sentencing process and, therefore, a Sixth Amendment right to counsel attaches to the interview. Id. at 301. The court also held that once the petitioner invoked his right to counsel, interviewing should have stopped until counsel was given the opportunity to be present. Id. See also United States v. Tisdale, 952 F.2d 934, 940 (6th Cir.1992), United States v. Herrera-Figueroa, 918 F.2d 1430, 1433 (9th Cir.1991), and Commonwealth v. Talbot, 444 Mass. 586, 830 N.E.2d 177, 184 (2005) (exercising court‘s supervisory authority to formulate procedural rules, the court held that probation officers are required, upon request, to permit an attorney to assist a defendant at the presentence interview).
While Idaho today sits with the majority in determining that the presentence investigation process is not a critical stage in the criminal adversarial system, it may be short-lived upon more comprehensive review of Idaho‘s presentence investigation process.