Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael R. McLaughlin, District Judge.
The opinion of the court was delivered by: Lansing, Judge
2012 Unpublished Opinion No. 600
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Judgment denying post-conviction relief, affirmed.
Joseph Colon appeals from the district court's judgment dismissing his petition for post-conviction relief following an evidentiary hearing. He contends that the case must be remanded because the court did not rule on one of his claims. We affirm.
Colon was convicted of two counts of lewd conduct with a minor under sixteen. He thereafter filed a petition for post-conviction relief asserting numerous claims. The State filed an answer and a motion for summary dismissal. Counsel was appointed to represent Colon, and an amended petition was filed which again alleged several claims of ineffective assistance of counsel. Paragraph 6 of the amended petition alleged that defense counsel was ineffective for failing to file an appeal from Colon's judgment of conviction despite Colon's request that he do so. All of the other claims of ineffective assistance were contained in subparagraphs (a) through (f) of paragraph 7 of the amended petition.
After the State answered the amended petition, the court conducted a hearing on the State's motion for summary dismissal. At the hearing, Colon presented argument on each of the claims, including his paragraph 6 claim that his attorney failed to file an appeal. The court thereafter granted the State's motion for summary dismissal as to the allegations in paragraphs 7(a), 7(b), 7(e), and 7(f), but specifically ordered that the claims alleged in paragraphs 7(c) and 7(d) could proceed to an evidentiary hearing. The district court's order did not mention the claim in paragraph 6 regarding defense counsel's failure to appeal upon Colon's request.
At the subsequent evidentiary hearing, Colon presented evidence about the claims alleged in paragraphs 7(c) and 7(d) but did not mention his allegation that his defense attorney was deficient for not following Colon's direction to appeal. At the conclusion of the evidentiary hearing, the district court dismissed the petition in its entirety.
Colon appeals, contending that the district court erred by failing to rule on the claim in paragraph 6 of Colon's amended petition relating to defense counsel's failure to file an appeal, and Colon maintains that the case must be remanded for further proceedings on that claim.
In order to prevail in a post-conviction proceeding, the petitioner 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); Bradley v. State, 151 Idaho 629, 631, 262 P.3d 272, 274 (Ct. App. 2011).
Colon argues that the claim in paragraph 6 of the amended petition was not summarily dismissed because it was not referred to as being summarily dismissed in the court's order that partially granted the State's motion for summary dismissal, and that the claim was not disposed of pursuant to the evidentiary hearing because the ...