Appeal from the District Court of the Second Judicial District, State of Idaho, Latah County. Hon. John H. Bradbury, District Judge.
The opinion of the court was delivered by: Melanson, Judge
Order denying application for post-conviction relief, affirmed.
Donald Roger Rossignol, Jr., appeals from the district court's order denying his application for post-conviction relief. For the reasons set forth below, we affirm.
In 2005, Rossignol was charged with three counts of lewd conduct with a minor under sixteen years of age and one count of sexual abuse of a child for inappropriate sexual contact with his daughter. Rossignol's daughter alleged that Rossignol had shown her pornography on his computer and then inappropriately touched her. A search of Rossignol's computer revealed pornographic images and movies and stories regarding incest. Rossignol's first trial ended in a mistrial when the jury could not reach a unanimous verdict. In 2007, Rossignol's second trial resulted in a guilty verdict for three counts of lewd conduct with a minor under sixteen years of age, I.C. § 18-1508; one count of sexual abuse of a child, I.C. § 18-1506; and being a persistent violator, I.C. § 19-2514. This Court affirmed Rossignol's judgment of conviction in State v. Rossignol, 147 Idaho 818, 832, 215 P.2d 538, 552 (Ct. App. 2009).
In February 2010, Rossignol filed an application for post-conviction relief asserting that his trial counsel provided ineffective assistance. The state filed an answer in response asking that Rossignol's application be summarily dismissed. In July 2010, Rossignol filed an amended application again asserting that his trial counsel was ineffective. Specifically, Rossignol alleged that his trial counsel "refused to call [him] as a witness to testify on his own behalf in spite of [his] demand to be called as a witness." Rossignol also alleged that his trial counsel did not inform him that he "had the right to make the final decision on whether to testify on his own behalf, as opposed to the final decision being within the discretion of counsel." Finally, Rossignol alleged that his trial counsel failed to subpoena a doctor in a timely manner to testify at trial. The state filed an amended answer and motion for summary dismissal of Rossignol's amended application.
On November 1, 2010, Rossignol filed a motion for leave to file a second amended application. On November 2, the district court determined than an evidentiary hearing on the issues raised in the first amended application would be held. At the evidentiary hearing, Rossignol's post-conviction counsel notified the district court that, after he filed the motion for leave to file a second amended application raising some new issues, "those additional issues ended up being moot." Therefore, Rossignol's counsel explained that, "what we're pursuing today is the issues of ineffective assistance of counsel for failing to subpoena [a doctor] in a timely manner so that he could appear to testify and ineffective assistance of counsel for denying Mr. Rossignol his right to testify at the trial." The district court granted the motion to amend and allowed the state to file a second amended answer and motion for summary disposition of the second amended application. However, the district court did so only "in the interest of a comprehensive record" and informed the parties that "I'm going to allow him to file it. I'm going to allow you to file your response, and I'm going to consider them moot." The district court then denied the state's motion for summary dismissal of the first amended application. After the evidentiary hearing, the district court issued a memorandum decision and order denying Rossignol's application for post-conviction relief. Rossignol appeals.
In order to prevail in a post-conviction proceeding, the applicant must prove the allegations by a preponderance of the evidence. I.C. § 19-4907; Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (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 v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). 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).
Rossignol argues that the district court erred by denying his application for post-conviction relief. Specifically, Rossignol asserts that his trial counsel was deficient for failing to inform him that it was Rossignol's ultimate decision whether to testify and that, had he testified, there is a reasonable probability the result of the trial would have been different. Rossignol also asserts that he was deprived of his right to testify; he did not knowingly, intelligently, and voluntarily waive his right to testify; and the state did not prove beyond a reasonable doubt that the error was harmless. Finally, Rossignol argues that he was prejudiced by the failure of his trial counsel to timely subpoena a doctor to testify at trial.
In the order denying Rossignol's application, the district court stated that "even though Mr. Rossignol only made a claim of ineffective assistance of counsel, not a deprivation of a constitutional right, I must still consider his complaint that he was denied the opportunity to testify under a constitutional analysis." Accordingly, the district court analyzed Rossignol's claim that he was denied his right to testify as a deprivation of a constitutional right claim, not an ineffective assistance of counsel claim. The state asserts that Rossignol's claim should only be analyzed as an ineffective assistance of counsel claim. As explained below, this distinction is significant because it determines which party bears the burden of persuasion on appeal to show whether the alleged deprivation was prejudicial or harmless. We first review relevant case precedent to determine the correct analysis to apply to Rossignol's claim. In State v. Darbin, 109 Idaho 516, 708 P.2d 921 (Ct. App. 1985), after being found guilty of grand theft, Darbin contended, among other things on direct appeal, that he was denied effective assistance of counsel at trial because his counsel's conduct deprived him of the right to testify on his own behalf. In making this assertion, Darbin relied upon the following statements made by his trial counsel to the jury after the state rested its case in chief: Ladies and gentlemen of the jury, I have prepared an opening statement which I didn't make at the time the prosecutor made his. As I'm entitled to do, I'm entitled to reserve them. I have it all written out which goes through all of what the witnesses were going to say, the evidence we're going to admit, and at this time, I'm not going to make that opening statement, and I'm not going to put on a defense, and that's my decision, and I haven't even talked to [Darbin] about it.
But I don't believe that the state has proven one necessary element of this case, that element being that [Darbin] knew the pickup was stolen. They may have proven to you--they probably have proven that the pickup was ...