Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. David C. Nye, District Judge.
The opinion of the court was delivered by: Gutierrez, Chief Judge
2013 Unpublished Opinion No. 346
) Stephen W. Kenyon, Clerk ) THIS IS AN UNPUBLISHED ) OPINION AND SHALL NOT ) BE CITED AS AUTHORITY
Order denying motion for appointment of counsel, affirmed; judgment summarily dismissing petition for post-conviction relief, affirmed.
Beau E. Hansen appeals from the district court's order denying his motion for appointment of counsel and judgment summarily dismissing his petition for post-conviction relief. For the reasons set forth below, we affirm.
Hansen pled guilty to one count of aggravated battery and received a unified five-year sentence, with two years determinate. Hansen directly appealed his judgment of conviction and sentence, which this Court affirmed in an unpublished opinion. State v. Hansen, Docket No. 37325 (Ct. App. Feb. 10, 2011).
Thereafter, Hansen filed a petition for post-conviction relief alleging the State breached the plea agreement, his defense counsel gave ineffective assistance, and the criminal proceedings violated his right to a speedy trial. Hansen also filed a motion for appointment of counsel. After the State filed an answer, the district court denied Hansen's motion for appointment of counsel and issued a notice of intent to dismiss the petition. Hansen filed a response and objection to the notice of intent to dismiss; however, the district court entered an order and subsequent judgment dismissing Hansen's petition. Hansen timely appeals,*fn1 asserting the district court erred by failing to appoint counsel and by dismissing his petition.
A. Appointment of Counsel
If a post-conviction petitioner is unable to pay for the expenses of representation, the trial court may appoint counsel to represent the petitioner in preparing the petition in the trial court and on appeal. Idaho Code § 19-4904. The decision to grant or deny a request for court-appointed counsel lies within the discretion of the district court. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004). When a district court is presented with a request for appointed counsel, the court must address this request before ruling on the substantive issues in the case. Id.; Fox v. State, 129 Idaho 881, 885, 934 P.2d 947, 951 (Ct. App. 1997). The district court abuses its discretion where it fails to determine whether a petitioner for post-conviction relief is entitled to court-appointed counsel before denying the petition on the merits. See Charboneau, 140 Idaho at 793, 102 P.3d at 1112.
In determining whether to appoint counsel pursuant to Idaho Code § 19-4904, the district court should determine if the petitioner is able to afford counsel and whether the situation is one in which counsel should be appointed to assist the petitioner. Charboneau, 140 Idaho at 792, 102 P.3d at 1111. In its analysis, the district court should consider that petitions filed by a pro se petitioner may be conclusory and incomplete. See id. at 792-93, 102 P.3d at 1111-12. Facts sufficient to state a claim may not be alleged because they do not exist or because the pro se petitioner does not know the essential elements of a claim. Id. Some claims are so patently frivolous that they could not be developed into viable claims even with the assistance of counsel. Newman v. State, 140 Idaho 491, 493, 95 P.3d 642, 644 (Ct. App. 2004). However, if a petitioner alleges facts that raise the possibility ...