2013 Unpublished Opinion No. 605
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Minidoka County. Hon. Michael R. Crabtree, District Judge.
Order dismissing petition for post-conviction relief, reversed and remanded.
Nevin, Benjamin, McKay & Bartlett; Deborah A. Whipple, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.
Wally Kay Schultz appeals from the district court's dismissal of his successive petition for post-conviction relief. Specifically, Schultz asserts that the district court erred because it granted the State's motion for summary dismissal on grounds other than what the State asserted in its motion, thereby failing to provide Schultz with sufficient notice. We reverse and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
The prior proceedings were summarized in Schultz v. State, 151 Idaho 383, 256 P.3d 791 (Ct. App. 2011) as follows:
In separate cases, Schultz was found guilty of felony domestic violence in August of 2005, and pleaded guilty to possession of methamphetamine in December of 2005. The proceedings were apparently consolidated for sentencing. The district court entered judgments of conviction in December 2005, but retained jurisdiction over Schultz. After Schultz successfully completed the retained jurisdiction program, the district court placed him on probation for five years. To that end, the district court issued a "Temporary Order on Rider Review" on May 22, 2006, that stated Schultz was placed on probation with "the usual terms and conditions" and noted that a copy of "the formal paperwork" would be forthcoming. State v. Schultz, 147 Idaho 675, 676, 214 P.3d 661, 662 (Ct. App. 2009). Three days later, on May 25, 2006, the district court issued another order entitled, "Order Upon 180-Day Review Hearing, I.C. § 19-2601(4)." Id. This order also purported to place Schultz on probation and outlined more specific terms of probation. Id.
Schultz filed notices of appeal from his judgments of conviction on July 6, 2006, forty-five days after the May 22 order and forty-two days after the May 25 order. The State filed a respondent's brief on November 24, 2008, arguing that Schultz's appeal should be dismissed as untimely because the forty-two-day deadline for filing should have started to run from the May 22 order. This Court ultimately agreed with the State and dismissed Schultz's appeals on May 29, 2009. Id. A remitittur was issued on August 27, 2009.
After the State filed its respondent's brief, but before this Court announced its decision, Schultz filed petitions for post-conviction relief from his underlying convictions. Schultz filed the petition pertinent to his possession conviction on January 13, 2009, and the petition pertinent to his domestic violence conviction on March 24, 2009. The petition addressing the possession conviction alleged ineffective assistance of trial counsel for failure to conduct a proper investigation, failure to file a motion to suppress evidence, and failure to request that Schultz's sentences run concurrently. The petition attacking the domestic violence conviction alleged ineffective assistance of trial counsel for failure to "object to [the] prosecutor's comments, " failure to call certain witnesses, and failure to investigate the victim's "character and morals." Schultz also claimed prosecutorial misconduct, apparently based on various comments made by the prosecutor during closing argument.
Although both petitions claimed ineffective assistance of trial counsel, neither mentioned the failure of counsel to file a timely appeal. After the State had filed its answer to Schultz's petition regarding the possession case, Schultz filed a document entitled "Ammendment [sic] to Post Conviction" on February 20, 2009. In that document, Schultz attempted to add a claim of ineffective assistance of counsel for failure to timely file an appeal from Schultz's convictions. Similarly, after the State moved for dismissal of the other post-conviction action, Schultz filed a "Supplemental Brief in Support of Post Conviction Relief, " arguing ineffective assistance of counsel for failure to file a timely appeal. The State did not object to these filings but argued for dismissal because the post-conviction petitions had been filed outside the one-year statute of limitation, Idaho Code § 19-4902(a). The ...