Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. Randy J. Stoker, District Judge.
The opinion of the court was delivered by: Gratton, Judge
Order of the district court summarily dismissing application for post-conviction relief, affirmed.
Derrick Lawrence Hughes appeals from the summary dismissal of his application for post-conviction relief. We affirm.
I. FACTS AND PROCEDURAL BACKGROUND
The State charged fifty-six-year-old Hughes, by indictment, with twenty-one counts arising from unlawful sexual conduct with sixteen-year-old P.M. Pursuant to a plea agreement, Hughes pled guilty to five counts of rape, Idaho Code § 18-6101(1), two counts of sexual battery of a minor, I.C. § 18-1508A, one count of disseminating material harmful to minors, I.C. § 18-1515(1)(a), and two counts of possession of sexually exploitive materials, I.C. § 18-1507A, with the State agreeing to dismiss the remaining counts. The State also agreed to recommend a unified sentence of life, with twenty-five years determinate, and Hughes was free to argue for whatever sentence he felt was appropriate.
Prior to sentencing, the sentencing court ordered a Psychosexual Evaluation (PSE) and a Presentence Investigation Report (PSI). As part of the PSE, Hughes also underwent a polygraph examination. At the sentencing hearing, Hughes requested leave to obtain a second PSE, which was denied. Hughes was sentenced to an aggregate unified term of life, with twenty-five years determinate. Hughes appealed, and this Court affirmed Hughes‟ judgment of conviction and sentence. State v. Hughes, 2005 Unpublished Opinion No. 633 (Ct. App. Oct. 26, 2005).
Thereafter, Hughes filed a pro se application for post-conviction relief claiming violations of his Fourth, Fifth, Sixth, and Fourteenth Amendment rights. Hughes also moved for appointment of counsel, which was granted. Hughes‟ counsel filed an amended application for post-conviction relief. The State moved for summary dismissal. After oral argument, the post-conviction court granted the State‟s motion. This appeal followed.
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. I.C. § 19-4907; Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). An application for post-conviction relief differs from a complaint in an ordinary civil action. An application must contain much more than "a short and plain statement of the claim" that would suffice for a complaint under I.R.C.P. 8(a)(1). Rather, an application for post-conviction relief must be verified with respect to facts within the personal knowledge of the applicant, and affidavits, records or other evidence supporting its allegations must be attached, or the application must state why such supporting evidence is not included with the application. I.C. § 19-4903. In other words, the application must present or be accompanied by admissible evidence supporting its allegations, or the application will be subject to dismissal.
Idaho Code § 19-4906 authorizes summary dismissal of an application for post-conviction relief, either pursuant to motion of a party or upon the court‟s own initiative. Summary dismissal of an application pursuant to I.C. § 19-4906 is the procedural equivalent of summary judgment under I.R.C.P. 56. Summary dismissal is permissible only when the applicant‟s evidence has raised no genuine issue of material fact that, if resolved in the applicant‟s favor, would entitle the applicant to the requested relief. If such a factual issue is presented, an evidentiary hearing must be conducted. Gonzales v. State, 120 Idaho 759, 763, 819 P.2d 1159, 1163 (Ct. App. 1991); Hoover v. State, 114 Idaho 145, 146, 754 P.2d 458, 459 (Ct. App. 1988); Ramirez v. State, 113 Idaho 87, 89, 741 P.2d 374, 376 (Ct. App. 1987). Summary dismissal of an application for post-conviction relief may be appropriate, however, even where the State does not controvert the applicant‟s evidence because the court is not required to accept either the applicant‟s mere conclusory allegations, unsupported by admissible evidence, or the applicant‟s conclusions of law. Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994); Baruth v. Gardner, 110 Idaho 156, 159, 715 P.2d 369, 372 (Ct. App. 1986).
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. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct. App. 1993). In post-conviction actions, the district court, as the trier of fact, is not constrained to draw inferences in favor of the party opposing the motion for summary disposition; rather the district court is free to arrive at the most probable inferences to be drawn from uncontroverted evidence. Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008).
Hughes raises several issues in his application for post-conviction relief, all based upon assertions of ineffective assistance of counsel. A claim of ineffective assistance of counsel may properly be brought under the Uniform Post-conviction Procedure Act. Murray v. State, 121 Idaho 918, 924-25, 828 P.2d 1323, 1329-30 (Ct. App. 1992). To prevail on an ineffective assistance of counsel claim, the defendant must show that the attorney‟s performance was deficient and that the defendant was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct. App. 1995). To establish a deficiency, the applicant has the burden of showing that the attorney‟s representation fell below an objective standard of reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). To establish prejudice, the applicant must show a reasonable probability that, but for the attorney‟s deficient performance, the outcome of the trial would have been different. Aragon, 114 Idaho at 761, 760 P.2d at 1177.
Hughes first claims that trial counsel was ineffective for failing to be present during the PSE. Second, Hughes contends that trial counsel was ineffective in failing to move to suppress the PSE because the polygraph results, which were incorporated into the PSE, were obtained in violation of Hughes‟ Fifth Amendment right to counsel. Third, Hughes argues that the district court erred in dismissing his claim that his counsel was ineffective for failing to ensure that Hughes received Miranda*fn1 warnings prior to his participation in the PSI. Fourth, Hughes asserts that his attorney was ineffective for failing to obtain an independent, confidential psychosexual evaluation prior to sentencing. Fifth, Hughes claims that his trial counsel was ineffective in failing to move to suppress the results of the polygraph test. Sixth, Hughes argues that while the district court correctly determined that Hughes‟ trial counsel was deficient for failing to advise Hughes regarding his rights relative to the PSE, the district court erred in its analysis of the prejudice prong.
A. Ineffective Assistance of Counsel - Sixth Amendment Right to the Physical Presence of Counsel at the PSE and Polygraph.
Hughes claims that his attorney was ineffective because he was not present during the PSE and polygraph. Hughes argues that the Sixth Amendment guarantees the right to the effective assistance of counsel during all phases of a PSE and that the assistance of counsel necessarily includes the presence of counsel. He further asserts that a Sixth Amendment right to the presence of counsel during all phases of the PSE is necessary in order to protect his Fifth Amendment rights against self-incrimination.
The Sixth Amendment to the United States Constitution and Article I, § 13 of the Idaho Constitution, guarantee a criminal defendant the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86 (1984); Ivey v. State, 123 Idaho 77, 80, 844 P.2d 706, 709 (1992); Aragon v. State, 114 Idaho 758, 760-61, 760 P.2d 1174, 1176-77 (1988). This right extends to all "critical stages" of the adversarial proceedings against a defendant. United States v. Wade, 388 U.S. 218, 224 (1967); Estrada v. State, 143 Idaho 558, 562, 149 P.3d 833, 837 (2006). As set forth by the Idaho Supreme Court in Estrada:
In determining whether a particular stage is "critical," it is necessary "to analyze whether potential substantial prejudice to defendant‟s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice." Wade, 388 U.S. at 227, 87 S.Ct. at 1932, 18 L.Ed.2d at 1157.
Estrada, 143 Idaho at 562, 149 P.3d at 837. "[I]f the stage is not critical, there can be no constitutional violation, no matter how deficient counsel‟s performance." United States v. Benlian, 63 F.3d 824, 827 (9th Cir. 1995); see Estrada, 143 Idaho at 562, 149 P.3d at 837. Therefore, we must first address whether the PSE is a critical stage.
In Estrada, the Court held that the Sixth Amendment guaranteed the right to the assistance of counsel for advice regarding participation in a PSE. Id. Hughes asserts that in order for the Estrada Court to have recognized a Sixth Amendment right to the advice of counsel, it must have implicitly held that the entire process of the PSE is a critical stage and, thus, Hughes was entitled to the assistance of, including the presence of, counsel at all times during the PSE. The State argues that Estrada‟s "critical stage" determination was only in relation to sentencing, which is acknowledged as a critical stage. See Retamoza v. State, 125 Idaho 792, 796, 874 P.2d 603, 607 (Ct. App. 1994) (citing Mempa v. Rhay, 389 U.S. 128, 134 (1967)). The State asserts that, as part of a criminal defendant‟s Sixth Amendment right to the assistance of counsel during sentencing, the defendant has, under Estrada, the limited right to the advice of counsel regarding the decision as to whether to participate in the PSE, which advice must necessarily be given prior to the conduct of the PSE and as a component of representation at sentencing. Thus, the State claims that Estrada did not hold that all phases of a PSE constituted a critical stage for Sixth Amendment right to counsel purposes.
The Estrada Court identified the issue to be addressed as follows:
The first question presented by this case is whether a court-ordered psychosexual evaluation constitutes a critical stage of litigation at which the Sixth Amendment right to counsel applies. While neither party in this case directly raises this issue, the question is indirectly raised as a necessary precursor to the arguments presented regarding Estrada‟s claim for ineffective assistance of counsel.
Estrada, 143 Idaho at 561, 149 P.3d at 837. The Court further stated:
This Court‟s finding that a Sixth Amendment right to assistance of counsel in the critical stage of a psychosexual evaluation inquiring to a defendant‟s future dangerousness, does not necessarily require the presence of counsel during the exam.
Estrada, 143 Idaho at 562, 149 P.3d at 838 (italics in original; underlining added). The underlined language may be read to support the contention that the Estrada Court determined that the PSE and all its phases constitute a critical stage. However, the Estrada Court further held that its ruling was "limited to the finding that a defendant has a Sixth Amendment right to counsel regarding only the decision of whether to submit to a psychosexual exam." Estrada, 143 Idaho at 562-63, 149 P.3d at 837-38 (emphasis added).*fn2 This language may be read to support the contention that the Estrada Court limited the critical stage, and hence a right to counsel‟s assistance, to only the decision to participate in the PSE. Leaving aside for the moment the question of the scope and extent of counsel‟s assistance and/or presence, this language raises the question of whether it is the decision to undergo the PSE, or the evaluation itself, that is the critical stage.
Assuming, first, that the critical stage is only the decision to undergo the PSE, then Hughes‟ claim that he was entitled to the presence of counsel at all phases of the PSE including the polygraph fails. In that case, Hughes‟ right to effective assistance of counsel would be, as in Estrada, limited to the assistance of counsel, through advice, relative to the decision to participate in the PSE. Moreover, aside from Estrada‟s limitation of the right to counsel to only the decision to participate in the PSE, there is support for this more narrow view of the critical stage. We previously determined in State v. Curless, 137 Idaho 138, 44 P.3d 1193 (Ct. App. 2002), that the PSE itself was not a critical stage for Sixth Amendment purposes, which was not expressly overruled by Estrada. Only Estrada and a case which it cites, State v. Tinkham, 871 P.2d 1127 (Wash. App. 1994), contain language which can be read as holding that all phases of a PSE constitute a critical stage.*fn3 Hughes has cited no other case, and our research has revealed none, which directly holds that a psychiatric or psychosexual evaluation, performed after the determination of guilt and for the express purpose of sentencing, is a critical stage for Sixth Amendment purposes.*fn4
While that critical stage analysis relative to pretrial psychiatric
examinations may not be identical to a PSE, the test is the same. In
that context, the majority of courts have held that a pretrial
psychiatric examination is not a critical stage and several courts
have drawn a distinction in the critical stage analysis between the
decision to undergo a psychiatric examination and the actual conduct
of the examination. In United States. v. Byers, 740 F.2d 1104 (D.C.
Cir 1984), then Judge, now Justice, Antonin Scalia,*fn5
writing for the plurality, stated that in order for the Sixth
Amendment to apply, "the accused must find himself "confronted, just
as at trial, by the procedural system, or by his expert adversary, or
by both.‟" Byers, 740 F.2d at 1117-1118 (quoting United States v. Ash,
413 U.S. 300, 310 (1973)). The court held that the defendant was
confronted by the procedural system at the point at which he had to
make decisions relative to psychiatric examination, but not the
psychiatric interview itself. The court further found that the
defendant was not confronted by his expert adversary during the
psychiatric interview. The examining psychiatrist was not an
"adversary" or an expert in the "relevant sense," that is, in "the
intricacies of substantive and procedural criminal law." Byers, 740
F.2d at 1118-1120 (quoting Kirby v. Illinois, 406 U.S. 682, 689
(1972)) (plurality opinion); see also Commonwealth
v. Trapp, 668 N.E.2d 327, 330 (Mass. 1996) ("Although the decision to
undergo psychiatric evaluation is a critical stage, Estelle v. Smith,
supra at 470, 101 S.Ct. at 1876-1877, the interview itself is not.
Byers, supra at 1118-1121."); State v. Martin, 950 S.W.2d 20, 26
(Tenn. 1997) ("Accordingly, we agree with the courts which have
distinguished the "critical stage‟ prior to a psychiatric examination
from the examination itself."). Thus, as noted, if the critical stage
recognized in Estrada was only the decision to undergo the PSE, a view
consistent with the outcome of Estrada and the above-cited decisions,
then Hughes‟ claim that he was entitled to the
presence of counsel at all phases of the PSE including the polygraph
fails, since we would not extend Estrada.
Assuming, second, the Estrada Court viewed the critical stage to include not only the decision to undergo the examination but also the examination process itself, then our analysis turns to whether that determination necessarily means that Hughes must be entitled to the presence of counsel at all such phases of the PSE. Hughes contends that once a critical stage is defined, the Sixth Amendment guarantees the right to have counsel present at all times during that critical stage. The State argues that, since the right Hughes seeks to protect relative to the PSE is the right against self-incrimination, the Sixth Amendment right to the effective assistance of counsel is satisfied through counsel‟s advice relative to participation in the PSE, which does not require counsel‟s presence during the examination itself.
Hughes asserts that whenever a critical stage has been identified, the right to the presence of counsel during that stage has been guaranteed. Hughes cites, as support for this proposition, Mempa v. Rhay, 389 U.S. 128 (1967) (right to presence of counsel at sentencing hearing); White v. Maryland, 373 U.S. 59 (1963) (right to presence of counsel at preliminary hearing); Gideon v. Wainwright, 372 U.S. 335 (1963) (right to presence of counsel at trial); and, Hamilton v. Alabama, 368 U.S. 52 (1961) (right to presence of counsel at arraignment). Indeed, recently in Montejo v. Louisiana, 129 S.Ct. 2079 (2009), the Court reiterated:
Under our precedents, once the adversary judicial process has been initiated, the Sixth Amendment guarantees a defendant the right to have counsel present at all "critical" stages of the criminal proceedings. United States v. Wade, 388 U.S. 218, 227-228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Interrogation by the State is such a stage. Massiah v. United States, 377 U.S. 201, 204-205, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); see also United States v. Henry, 447 U.S. 264, 274, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980).
Montejo, 129 S.Ct. at 2085.
As an initial matter, we note that Hughes has cited no case that expressly holds that there is a Sixth Amendment right to the presence of counsel during the conduct of the PSE examination itself when the PSE is exclusively used for sentencing purposes, and our research has revealed none. We turn, then, to Estrada and Estelle. In Estrada, our Supreme Court held:
It makes no sense that a defendant would be entitled to counsel up through conviction or entry of a guilty plea, and would also be entitled to representation at sentencing, yet would not be entitled to the advice of counsel in the interim period regarding a psychosexual evaluation. The analysis in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), is instructive. In Estelle, the United States Supreme Court ruled that the capital defendant‟s pre-trial psychiatric evaluation was a critical stage of the proceedings. Id. at 470, 101 S.Ct. at 1877, 68 L.Ed.2d at 373-74. The Court stated the defendant had a Sixth Amendment right to the assistance of counsel before submitting to the interview, observing that it "is central to [the Sixth Amendment] principle that in addition to counsel‟s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel‟s absence might derogate from the accused‟s right to a fair trial." Id. at 470-71, 101 S.Ct. at 1876-77, 68 L.Ed.2d at 373-74 (quotation omitted).
Importantly, the Estelle Court recognized that the defendant was not seeking a right to have counsel actually present during the exam. Id. at 471, n. 14, 101 S.Ct. at 1877, n. 14, 68 L.Ed.2d at 374, n. 14. This clarification reflects a difference between the "limited right to the appointment and presence of counsel recognized as a Fifth Amendment safeguard in Miranda" and a defendant‟s Sixth Amendment right to assistance of counsel. See id.; see also State v. Tinkham, 74 Wash.App. 102, 871 P.2d 1127, 1131 (1994) (ruling a court-ordered psychological exam to determine a defendant‟s future dangerousness for sentencing purposes is a critical stage requiring the assistance of counsel, but clarifying "we are not holding that counsel has a right to be present, only that the defendant has the right to advice"). This Court‟s finding that a Sixth Amendment right to assistance of counsel in the critical stage of a psychosexual evaluation inquiring to a defendant‟s future dangerousness, does not necessarily require the presence of counsel during the exam. Because Estrada does not argue his attorney should have been present during the evaluation, this ruling is limited to the finding that a defendant has a Sixth Amendment right to counsel regarding only the decision of whether to submit to a psychosexual exam.
Estrada, 143 Idaho at 562-63, 149 P.3d at 837-38 (emphasis in original). It is evident that Estrada drew upon Estelle in orderto distinguish between the advice of counsel and the presence of counsel under the Sixth Amendment. The Byers court provides additional context regarding Estelle‟s critical stage analysis and the right to the assistance versus presence of counsel issue:
The foregoing discussion explains why the holding of Estelle v. Smith, supra, has relevance to this case. There counsel had not been advised, in advance of his client‟s pretrial psychiatric examination to determine competency to stand trial, that the psychiatrist would attempt to assess in addition the accused‟s future dangerousness, for use in any subsequent sentencing hearing-which use was later made. The accused had neither pleaded insanity nor given any notice of intent to plead insanity, and clearly had a Fifth Amendment right to decline to undergo the psychiatric inquiry for sentencing purposes. In that inquiry, therefore, although the defendant was not confronted by his adversary he was confronted "by the legal system," in that he had a law-related choice before him, and could have profited from the expert advice of counsel "in making the significant decision of whether to submit to the examination and to what end the psychiatrist‟s findings could be employed," 451 U.S. at 471, 101 S.Ct. at 1877. It was that, and that alone which (given the importance of the matter involved) caused the interview "to be a "critical stage‟ of the aggregate proceedings against respondent," id. at 470, 101 S.Ct. at 1876-which is why the Court described its holding as affirming a Sixth Amendment right to assistance of counsel "before submitting to the . . . psychiatric interview," id. at 469, 101 S.Ct. at 1876 (emphasis added). The Court specifically disavowed any implication of a "constitutional right to have counsel actually present during the examination," citing the dissent in our opinion in Thornton v. Corcoran, supra. Id. at 470 n. 14.
Byers, 740 F.2d at 1119 (emphasis in original).
The Estrada and Estelle Courts took pains to distinguish the right to the advice of counsel regarding the examination process from a right to the presence of counsel during the examination process. If, as Hughes argues, the Sixth Amendment provides an absolute right to the presence of counsel at all times during a "critical stage," there would be no reason for the Estrada and Estelle Courts to engage in any analysis of a distinction between the advice of counsel and the presence of counsel. Yet they did so. Each Court limited the right to the advice of counsel prior to the examination. Thus, if we assume here that both Estrada and Estelle can be read to hold that the entire examination process is a critical stage, we must also take from those cases that the Courts did not agree that the Sixth Amendment automatically provided an absolute right to the presence of counsel at all times during that "critical stage."
Several factors support the determination that the advice of counsel before the PSE satisfies the Sixth Amendment. First, as noted in Byers, supra, the examination phase is materially different from the pre-examination advice and decision phase. The defendant is confronted by the procedural system at the point at which the defendant must make decisions relative to psychiatric examination, but not the psychiatric interview itself. Byers, 740 F.2d at 1118-1120. At the decisional point, the defendant is confronted by the legal system in that a law-related choice must be made, from which the defendant could benefit from the advice of counsel. Id. In addition, the defendant is not confronted by his expert adversary during the psychiatric interview. Id. Thus, the basis for recognition of a critical stage and its protections does not necessarily fit the examination phase. Second, the right sought to be protected is the right against self-incrimination. The advice of counsel during the decisional phase provides the defendant with information as to the examination process as well as the right to refuse examination to avoid self-incrimination. Thus armed, the defendant can adequately proceed through the examination. Third, even if the defendant could further benefit from counsel‟s accessibility during the examination, overall, counsel‟s presence would hinder rather than further the process:
Even if a psychiatric interview otherwise met one of the two theoretical tests for Sixth Amendment protection, it would be relevant to consider the pragmatic effects of presence of counsel upon the process. The Sixth Amendment, like the Fifth (as we have earlier discussed), is not oblivious to practical consequences. In Wade, for example, the Court felt constrained to note that "[n]o substantial countervailing policy considerations have been advanced against the requirement of the presence of counsel." 388 U.S. at 237, 87 S.Ct. at 1937. That is not so here. The "procedural system" of the law, which is one justification for the presence of counsel and which, by the same token, the presence of counsel brings in its train, is evidently antithetical to psychiatric examination, a process informal and unstructured by design. Even if counsel uncharacteristically sat silent and interposed no procedural objections or suggestions, one can scarcely imagine a successful psychiatric examination in which the subject‟s eyes move back and forth between the doctor and his attorney. Nor would it help if the attorney were listening from outside the ...