Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bear Lake County. Hon. Peter D. McDermott, District Judge.
The opinion of the court was delivered by: Melanson, Judge
Order dismissing application for post-conviction relief, affirmed.
Fred Willie appeals from the district court's order dismissing his application for post-conviction relief. Willie asserts that the district court erred when it dismissed his claim of ineffective assistance of counsel. For the reasons set forth below, we affirm.
Willie was charged with nine counts of lewd conduct with a minor under the age of sixteen years. I.C. § 18-1508. At the completion of trial, a jury found him guilty of three counts. The district court sentenced Willie to concurrent, unified terms of twenty years, with minimum periods of confinement of five years. Thereafter, Willie filed an I.C.R. 35 motion for reduction of sentences. The district court granted Willie's motion and reduced his sentences to concurrent, unified terms of eight years, with minimum periods of confinement of three years.
Willie filed an application for post-conviction relief seeking a vacation of his judgment of conviction and a new trial. Willie also filed four affidavits and two memoranda in support of his application. Willie's application alleged numerous claims of ineffective assistance of counsel, including a claim that his trial counsel failed to consult with him about filing an appeal. After considering the case file, application, memoranda and the accompanying affidavits, the district court held an evidentiary hearing on all of the claims.
Willie's trial counsel in the criminal case did not testify at the evidentiary hearing. However, pursuant to a stipulation, the district court instead considered trial counsel's deposition testimony. During the deposition, trial counsel was never asked whether he consulted with Willie about his right to appeal. In addition, at the evidentiary hearing, counsel for Willie never mentioned the appeal issue, nor did he present any testimony or evidence regarding trial counsel's failure to consult with Willie about his right to appeal.*fn1 The state declined to present any evidence at the hearing.
In its memorandum decision, the district court held that Willie failed to support his allegation of ineffective assistance of counsel for failure to consult with Willie about his right to appeal. The district court noted that Willie failed to present any evidence, either in the affidavits or at the evidentiary hearing, to demonstrate that trial counsel failed to discuss with or inform Willie about his right to appeal. Further, the district court held that the general statements made in Willie's application and accompanying memoranda regarding his right to appeal were not sufficient to support a finding of ineffective assistance of counsel. As such, the court dismissed Willie's application. Willie appeals.
Willie asserts that the district court erred when it dismissed his application for post-conviction relief because trial counsel failed to consult with him about filing an appeal when a rational defendant in Willie's position would want to appeal. The state responds that, based on this Court's decision in Loveland v. State, 141 Idaho 933, 120 P.3d 751 (Ct. App. 2005), the district court correctly applied the law by concluding that Willie failed to establish a claim of ineffective assistance of counsel. Willie contends that his verified application for post- conviction relief should have been considered by the district court as evidence of his trial counsel's deficient performance. In the alternative, Willie also urges this Court to overturn its decision in Loveland.
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).
When reviewing a decision denying post-conviction relief after an evidentiary hearing, an appellate court will not disturb the lower court's factual findings unless they are clearly erroneous. I.R.C.P. 52(a); Russell, 118 Idaho at 67, 794 P.2d at 656. The credibility of the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence are all matters solely within the province of the district court. Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We exercise free review of the district court's application of the relevant law to the facts. Nellsch v. State, 122 Idaho 426, 434, 835 P.2d 661, 669 (Ct. App. 1992).
To support its argument that Willie did not meet his burden to show that trial counsel's performance was deficient, the state relies upon this Court's decision in Loveland. In that case, Loveland filed a verified application for post-conviction relief, alleging that trial counsel provided ineffective assistance of counsel. In the affidavit accompanying the application, Loveland asserted that he had asked his trial counsel to file an appeal and that trial counsel refused. At an evidentiary hearing on the application, Loveland explained that he would not present any evidence and would rely solely upon the record and transcripts in support of his claim. The district court dismissed Loveland's application because Loveland failed to present any evidence to prove his claim of ineffective assistance of counsel. Loveland asserted on appeal that the verified application and the accompanying affidavits constituted evidence to be considered by the district court at the evidentiary hearing. However, this Court held that, unless introduced into ...