2013 Unpublished Opinion No. 725
Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Bradly S. Ford, District Judge.
Judgment summarily dismissing action for post-conviction relief, affirmed.
Rebekah A. Cudé, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent.
Timothy Charles Condon appeals from the judgment dismissing his post-conviction claims. He argues that the trial court erred by granting summary dismissal of his claim that his attorney provided ineffective assistance of counsel when he failed to pursue a motion for reduction of bail. We affirm.
In the underlying criminal action, Condon pleaded guilty to operating a motor vehicle while under the influence of alcohol (second offense within fifteen years), felony, Idaho Code §§ 18-8004, 18-8005. In exchange for his plea, the State did not seek a persistent violator enhancement. After pleading guilty, but before he was sentenced, Condon's defense attorney filed a motion seeking pretrial release. In that motion, counsel argued that the $1, 000, 000 bail that had been set by a magistrate was excessive and asked that Condon be released on the condition that he stay at the Boise Rescue Mission. At the next hearing, which was noticed as a hearing on the excessive bail motion, Condon's counsel withdrew the motion and instead requested an earlier sentencing date because the presentence investigation report and a GAIN assessment had been completed. The trial court accelerated the sentencing date and ultimately sentenced Condon to a unified term of ten years in prison with five years fixed. Condon filed a motion under Idaho Criminal Rule 35, seeking to reduce his sentence. The trial court denied that motion and this Court affirmed that denial on appeal in State v. Condon, Docket No. 38584 (Ct. App. Nov. 14, 2011) (unpublished).
While his Rule 35 appeal was pending, Condon filed a petition for post-conviction relief, a supporting affidavit, and attached exhibits. He raised several claims, most of which are not relevant to this appeal. The only claim pursued on appeal is that Condon's defense attorney provided ineffective assistance by withdrawing the motion alleging excessive bail. The State filed a motion for summary dismissal pursuant to I.C. § 19-4906. The State argued that summary dismissal was proper because Condon failed to allege sufficient facts to support his claim, that his claim was conclusory, and that he failed to alleged or provide any evidence of prejudice. After a hearing, and after the parties submitted written closing arguments, the trial court granted the State's motion and entered a judgment dismissing the case.