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Wicklund v. State

Court of Appeals of Idaho

October 30, 2013

JUSTIN ROBERT WICKLUND, Petitioner-Appellant,
v.
STATE OF IDAHO, Respondent.

UNPUBLISHED OPINION

2013 Unpublished Opinion No. 731

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. Randy J. Stoker, District Judge.

Order denying petition for post-conviction relief, affirmed.

Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.

MELANSON, Judge

Justin Robert Wicklund appeals from the district court's order denying his petition for post-conviction relief following an evidentiary hearing in which he alleged ineffective assistance of counsel. For the reasons set forth below, we affirm.

I.

FACTS AND PROCEDURE

Wicklund was originally charged with rape, aggravated assault, and domestic violence. However, pursuant to a plea agreement, he pled guilty to aggravated battery (I.C. §§ 18-903(b), 18-907(a)) and aggravated assault (I.C. §§ 18-901(b), 18-905(a)). The district court imposed a unified term of twelve years, with a minimum period of confinement of two years, for aggravated battery and a consecutive unified term of five years, with a minimum period of confinement of two years, for aggravated assault. Wicklund appealed and this Court affirmed his judgment of conviction and sentences in an unpublished opinion. See State v. Wicklund, Docket No. 38697 (Ct. App. Dec. 29, 2011). Wicklund then filed a petition for post-conviction relief alleging, among other things, ineffective assistance of counsel in his criminal case. After giving notice of its intent to dismiss parts of Wicklund's petition, the district court dismissed all but the ineffective assistance of counsel claim. At an evidentiary hearing, Wicklund argued that his counsel was ineffective because he had failed to more strenuously object to the inclusion in the presentence investigation report (PSI) of an officer's probable cause affidavit from a dismissed 2009 rape charge. Wicklund also asserted that his counsel should have investigated and disclosed information regarding why that charge had been dismissed by the state. The district court rejected these arguments and denied the petition. Wicklund appeals.

II.

STANDARD OF REVIEW

To prevail in a post-conviction proceeding, the petitioner must prove the allegations by a preponderance of the evidence. I.C. § 19-4907; Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990). When reviewing a decision denying post-conviction relief after an evidentiary hearing, an appellate court will not disturb the lower court's factual findings unless they are clearly erroneous. I.R.C.P. 52(a); Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence are all matters solely within the province of the district court. Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, ...


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