Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Ronald J. Wilper, District Judge.
The opinion of the court was delivered by: Gutierrez, Judge
2012 Unpublished Opinion No. 637
) THIS IS AN UNPUBLISHED ) OPINION AND SHALL NOT ) BE CITED AS AUTHORITY
Judgment dismissing petition for post-conviction relief, affirmed.
Albert R. Moore appeals from the district court's judgment dismissing his petition for post-conviction relief. Moore asserts the district court erred because he raised a genuine issue of material fact primarily in regards to various claims of prosecutorial misconduct and ineffective assistance of counsel. Moore also asserts claims relating to violations of his speedy trial rights, vindictive prosecution, double jeopardy, improper jury instructions, false arrest, and other constitutional violations including application of impermissible ex post facto laws. For the reasons set forth below, we affirm.
In September 2006, the State charged Moore, after his arrest, with misdemeanor driving under the influence (DUI). The State later filed an amended complaint enhancing the charge to a felony (the first case) because Moore had two previous convictions for DUI within the previous ten years, occurring in North Dakota in 1999 and in Idaho earlier in 2006. In April 2007, while
the first case was pending, police again arrested Moore for DUI, and the State charged Moore with a second felony DUI (the second case). Moore exercised his right to a jury trial in the second case. The trial proceeded in two phases: the first phase related to whether Moore was driving under the influence prior to the time of his arrest; the second phase related to whether there was sufficient evidence of two prior DUI convictions within ten years supporting the felony enhancement. In the first phase of trial, the jury found Moore guilty of DUI. As to the second phase of the trial, Moore argued in a motion in limine prior to trial that the North Dakota conviction could not be used to enhance the Idaho DUI charge to a felony because the North Dakota statute did not substantially conform to Idaho's DUI statute and the North Dakota conviction was constitutionally defective. Moore also objected to the admission of documents pertaining to the North Dakota conviction. The district court denied Moore's motion in limine and overruled his objection to the evidence. The jury thereafter found Moore guilty of the felony enhancement based on the two prior DUI convictions, and in July 2008, the district court entered a judgment of conviction. The first case had been delayed for various reasons. It was not until December 2008, after conviction in the second case, that Moore entered a conditional guilty plea to the first charge of felony DUI, reserving the right to appeal the denial of his motion to dismiss on speedy trial grounds and the issue of whether the North Dakota conviction could be used to enhance the DUI charge to a felony. After conviction in each case, the district court imposed concurrent, unified sentences of six years, with one year determinate. Moore appealed both cases, which the court consolidated for purposes of appeal.
On appeal, this Court concluded the district court was correct in finding the North Dakota statute substantially conformed to Idaho's DUI statute and that the out-of-state conviction was not constitutionally defective. However, we determined the district court erroneously allowed the admission of evidence regarding the prior, out-of-state conviction in the trial of the second case because the documents were not properly authenticated. We vacated that judgment of conviction. We rejected Moore's claims of error in the first case relating to violation of his speedy trial rights, but we remanded the case for determination as to whether Moore was entitled to withdraw his conditional guilty plea because of the vacation of the judgment of conviction in the second case. See generally State v. Moore, 148 Idaho 887, 231 P.3d 532 (Ct. App. 2010).
On remand, the district court found Moore's reservations in his guilty plea in the first case did not include evidentiary errors with respect to improperly authenticated documents showing the North Dakota conviction and effectively denied Moore's motion to withdraw his guilty plea.*fn1 The district court entered an amended judgment of conviction and later entered a second amended judgment of conviction to correct the sentence. Moore appealed from his second amended judgment of conviction and this Court affirmed. State v. Moore, 152 Idaho 203, 206, 268 P.3d 471, 474 (Ct. App. 2011).
Moore thereafter filed a petition for post-conviction relief, asserting at least five claims in relation to the second case, in which he went to trial. In his first and second claims, Moore asserted prosecutorial misconduct in that the State secured his conviction through perjury and both the State and the court withheld evidence by not allowing police reports to be submitted to the jury during deliberations. In his third, fourth, and fifth claims, Moore asserted his counsel provided ineffective assistance by failing to obtain a mistrial, failing to obtain an out-of-state court transcript showing his prior conviction was not for DUI, and failing to obtain affidavits proving certain police were not present when Moore was arrested. In relation to the first case, in which Moore pled guilty, Moore claimed the prosecution was vindictive for pursuing the case after the statutory time for a speedy trial had run. Throughout his many filings to the court, however, Moore also argued violations of his speedy trial rights, double jeopardy, improper jury instructions, false arrest, and other constitutional violations.
The district court granted Moore's motion for appointment of counsel. The State then moved for summary dismissal. It argued in support that Moore's petition asserted claims that should have been or were in fact addressed in the criminal case or on appeal, and were, therefore, either waived or barred. The State further asserted that even if not barred, Moore failed to raise any genuine issue of material fact as to any claim. ...