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Papse v. State

Court of Appeals of Idaho

November 19, 2013

LIVINGSTON J. PAPSE, SR., Petitioner-Appellant,
v.
STATE OF IDAHO, Respondent.

UNPUBLISHED OPINION

2013 Unpublished Opinion No. 755

Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. Stephen S. Dunn, District Judge.

Judgment denying petition for post-conviction relief, affirmed.

Livingston J. Papse, Sr., Boise, pro se appellant.

Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent.

LANSING, Judge

Livingston J. Papse, Sr., appeals from the judgment denying his post-conviction claims. He argues that the trial court erred by denying his claims that his attorney provided ineffective assistance of counsel by improperly advising him regarding his guilty plea and by failing to object to the prosecutor's breach of the plea agreement. We affirm.

I.

BACKGROUND

This is Papse's second appeal in this case. In our opinion on his first appeal, Papse v. State, Docket No. 37446 (Ct. App. Feb. 2, 2011) (unpublished), we summarized the facts of the underlying criminal proceedings:

In 2008, Papse was charged with felony driving under the influence of alcohol. [Idaho Code] §§ 18-8004 and 18-8005(5). Papse was offered a plea agreement under which the state agreed to request a sentence consisting of a unified term of four years, with a minimum period of confinement of two years, in exchange for Papse's guilty plea. Papse accepted the plea agreement and pled guilty. The district court, however, declined to follow the state's recommendation and sentenced Papse to a unified term of eight years, with a minimum period of confinement of four years. Papse filed a direct appeal asserting that his sentence was excessive, which this Court affirmed in an unpublished opinion. State v. Papse, Docket No. 35371 (Ct. App. Feb. 10, 2009).

Following his direct appeal, Papse filed a pro se petition for post-conviction relief pursuant to Idaho Code § 19-4901, et seq. He alleged that his plea was not knowingly, intelligently, and voluntarily given; that his plea agreement was violated by the prosecutor; that his attorney was ineffective for improperly advising him regarding his guilty plea and failing to object to the breach of the plea agreement; and that his attorney improperly induced him to plead guilty. Along with his petition, Papse filed a motion requesting the appointment of counsel. Before the State replied, the court denied the motion for the appointment of counsel and entered its notice of intent to dismiss the post-conviction action pursuant to I.C. § 19-4906. Thereafter, the district court dismissed the post-conviction action. Papse appealed, and we held that the post-conviction court erred by not appointing counsel and remanded for further proceedings in which Papse would have counsel. On remand, the post-conviction court appointed counsel for Papse and held an evidentiary hearing before dismissing Papse's case.

In rendering its decision on remand, the trial court reviewed the transcripts of the plea colloquy and the sentencing hearing. At the plea hearing, Papse had indicated that counsel had adequately assisted him and had helped him understand the plea colloquy questions. After the court concluded the plea ...


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