Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Benjamin R. Simpson, District Judge.
The opinion of the court was delivered by: Melanson, Judge
SUBSTITUTE OPINION THE COURT'S PRIOR OPINION DATED
SEPTEMBER 5, 2012, IS HEREBY WITHDRAWN
Judgment dismissing petition for post-conviction relief, vacated and remanded.
Kirk Julliard Gosch appeals from the district court's judgment dismissing his petition for post-conviction relief. For the reasons set forth below, we vacate and remand.
Gosch was found guilty by a jury of manufacturing a controlled substance, I.C. § 37- 2732(a); possession of marijuana with intent to deliver, I.C. § 37-2732(a); and possession of marijuana in excess of three ounces, I.C. § 37-2732(e). Gosch filed a petition for post-conviction relief, asserting that he received ineffective assistance of counsel because his trial counsel provided erroneous advice as to the potential consequences of filing an appeal. At an evidentiary hearing on this claim, Gosch asserted that he also received ineffective assistance of counsel because he asked counsel to file an appeal in his underlying criminal case, but no appeal was ever filed. The state did not object to the presentation of this additional claim at the evidentiary hearing, the parties argued the merits, and the district court considered the claim. In the district court's findings of fact and conclusions of law in support of the judgment dismissing Gosch's petition, the district court determined that Gosch's claims of ineffective assistance of counsel failed. Gosch appeals.
Gosch argues that the district court erred when it dismissed his petition for post- conviction relief because he demonstrated that he received ineffective assistance of counsel based upon his trial counsel's failure to file a notice of appeal in his underlying criminal case despite Gosch's unequivocal request that counsel do so.*fn1 Thus, Gosch asserts that his case must be remanded to the district court for entry of an amended judgment of conviction to allow him to perfect a timely appeal.
Post-conviction proceedings are civil in nature and therefore the petitioner must prove the allegations by a preponderance of the evidence. McKinney v. State, 133 Idaho 695, 699-700, 992 P.2d 144, 148-49 (1999). On review, the appellate court will not disturb the lower court's factual findings unless the factual findings are clearly erroneous. Id. at 700, 992 P.2d at 149. 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. Peterson v. State, 139 Idaho 95, 97, 73 P.3d 108, 110 (Ct. App. 2003). The appellate court exercises free review of the district court's application of the relevant law to the facts. Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004).
A claim of ineffective assistance of counsel may properly be brought under the 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 petitioner 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 ...