Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael E. Wetherell, District Judge.
The opinion of the court was delivered by: Gutierrez, Chief Judge
2008 Unpublished Opinion No. 480
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Order denying petition for post-conviction relief, affirmed.
Michael Max Lane appeals from the district court's denial of his petition for post-conviction relief. We affirm.
Michael Max Lane pled guilty to one count of burglary, I.C. § 18-1401, and one count of grand theft, I.C. §§ 18-2403(4), -2407(1). In exchange for these guilty pleas, the state agreed to dismiss an additional allegation that he was a persistent violator. The district court sentenced Lane to serve ten years, with nine years determinate, for burglary, and fourteen years, with eight years determinate, for grand theft. The sentences were ordered to be served consecutively. This Court affirmed the sentences on direct appea1 in an unpublished decision. State v. Lane, 2004 Docket No. 29442 (Ct. App., January 2, 2004).
Lane subsequently filed a pro se petition for post-conviction relief, alleging ineffective assistance of trial counsel and improper imposition of sentences; he also requested the appointment of counsel to assist him. The district court denied Lane's motion for counsel, finding that there were no "special circumstances necessitating the appointment of counsel in this case." Lane later filed a second motion for appointment of counsel, however, the district court never ruled on Lane's second motion for counsel. Instead, the district court issued a notice of intent to dismiss Lane's petition. After considering Lane's additional affidavits, the district court denied Lane's claim that the sentence was improperly imposed. The district court allowed Lane to proceed with his claims of ineffective assistance of counsel.
Lane then filed a motion to withdraw his guilty pleas in the underlying criminal case. Lane filed the motion with the district court under the case number assigned to his post-conviction petition. The district court denied the motion to withdraw the guilty pleas, finding the motion was inappropriate due to the lack of a final determination on Lane's post-conviction petition. Lane filed a notice of appeal from the district court's denial and requested appointment of counsel on appeal. The district court denied counsel, and the appeal was soon dismissed because Lane failed to pay the required fee for preparation of the transcript. Lane thereafter moved for an evidentiary hearing on his ineffective assistance of counsel claims, and again sought appointment of counsel. This time, the district court granted appointment of counsel, citing to I.C. § 19-852(b)(3) for the proposition that counsel should be appointed if the claim is not frivolous.
Lane, through appointed counsel, filed an amended petition for post-conviction relief, raising claims of ineffective assistance of counsel. Before the evidentiary hearing could be held, the Idaho Department of Corrections transferred Lane to Minnesota. Lane and the state agreed to submit the case on the evidence already before the district court. The district court denied Lane's petition for post-conviction relief, finding that he failed to show that his trial counsel's performance was deficient, and he failed to provide evidence to support his otherwise conclusory allegations. This appeal followed.
Lane raises two issues on appeal. First, he asserts that the district court erred by not ruling on his motion for appointment of counsel prior to dismissing his motion to withdraw his guilty pleas. Lane's second contention is that the district court erred by denying his petition for post-conviction relief based on the ineffective assistance of trial counsel. We will address each in turn.
A. Failure to Appoint Counsel Prior to Dismissing Lane's Motion to Withdraw his Guilty Pleas An application for post-conviction relief initiates ...