2013 Unpublished Opinion No. 554
Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. Robert C. Naftz, District Judge.
Order summarily dismissing petition for post-conviction relief, affirmed.
Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy Attorney General, Boise, for respondent.
Melvin Dewayne Perkins appeals from the district court's order summarily dismissing his petition for post-conviction relief. Perkins specifically challenges the denial of his request for appointment of post-conviction counsel. For the reasons set forth below, we affirm.
I. FACTS AND PROCEDURE
Perkins pled guilty to felony injury to a child. I.C. § 18-1501(1). The district court sentenced Perkins to a unified term of seven years, with a minimum period of confinement of two years. Perkins did not file a notice of appeal in the underlying case. Perkins filed a petition for post-conviction relief in September 2011. In December 2011, the district court issued a notice of intent to dismiss and, at the same time, denied Perkins's request for post-conviction counsel. Perkins responded to the notice of intent to dismiss, after which the district court dismissed the petition. Perkins appeals.
II. STANDARD OF REVIEW
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 application in the trial court and on appeal. I.C. § 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 Section 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 793, 102 P.3d at 1112. 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 ...