2013 Unpublished Opinion No. 566
Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Bradly S. Ford, District Judge.
Nevin, Benjamin, McKay & Bartlett; Robyn Fyffe, Boise, for appellant. Robyn Fyffe argued.
Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent. Russell J. Spencer argued.
GUTIERREZ, Chief Judge
Phillip Thomas Leonard, Jr. appeals from the judgment denying his petition for post-conviction relief following an evidentiary hearing. For the reasons set forth below, we affirm.
FACTS AND PROCEDURE
In January 2009, a detective went to Leonard's home to discuss allegations that Leonard had engaged in sexual conduct with a minor. Leonard agreed to speak with the detective and rode to the police station in the detective's vehicle, where he was advised of his Miranda rights. Leonard denied any sexual contact with the minor and agreed to the detective's request that he submit to a polygraph test. Upon Leonard's request, the test was scheduled for the next day and the detective agreed to transport him to the test. Later that day Leonard called the detective and told the detective he contacted an attorney who advised him to submit to the polygraph if he was telling the truth. Leonard indicated he was apprehensive about what would occur if he took the test. The detective assured Leonard he would not be taken to jail following the test and that if he passed the test, he would most likely be cleared as a suspect.
The detective picked Leonard up the next day and transported him to the station for administration of the polygraph test, again informing Leonard he was not under arrest. A second detective informed Leonard of his Miranda rights at the station. Leonard agreed to proceed with the test, but stated he did not want to discuss "anything" afterward. During the test, Leonard was asked questions regarding his personal sexual behavior, as well as whether he engaged in sexual conduct with the minor, the latter of which he continued to deny. After the test was completed, a detective asked if Leonard wanted to discuss the results. Leonard agreed and was told he failed the test. The detectives told Leonard that they believed he was lying and, given the evidence gathered, "it was not looking good for his part." Leonard requested counsel before he would continue talking. The interview ended and the detective gave Leonard a ride back to his residence. On the way back, Leonard inquired as to the next step in the investigation and was told the case would potentially go to a grand jury who would determine whether the case would go forward. When they arrived at Leonard's residence, Leonard opened the car door and then asked the detective "how long it would take to come to the police department and confess" and indicated he did not have money to hire an attorney. After inquiring and being told by an officer that he could not be appointed an attorney until he was arrested, Leonard said he felt he should return to the station and explain what had happened. At the station, Leonard was again advised of his Miranda rights and confessed to engaging in sexual contact with the victim.
Leonard was charged by indictment with lewd conduct with a minor. Pursuant to a plea agreement, he pled guilty, and following a period of retained jurisdiction, was sentenced to a unified term of twenty years, with three years determinate. He filed a petition for post-conviction relief alleging several claims, including that his trial counsel had been ineffective for failing to file a motion to suppress his confession on the basis that his Miranda rights were violated. The district court held an evidentiary hearing on the petition, at which Leonard's trial counsel testified he did not file a motion to suppress because he did not believe it would succeed given his assessment that Leonard was not in "custody" at the time he invoked his right to counsel. The district court agreed and issued a written order and subsequent judgment denying the petition. Leonard now appeals.