2014 Unpublished Opinion No. 342
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. G. Richard Bevan, District Judge.
Judgment dismissing petition for post-conviction relief, affirmed.
Stephen D. Thompson, Ketchum, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent.
James Alan Gerdon filed a successive post-conviction action claiming, inter alia, that the trial court in his criminal case erred by failing to rule on a motion that he filed pro se after sentencing. The post-conviction court dismissed the post-conviction action on several grounds, including timeliness. On appeal, Gerdon argues that the untimeliness should have been excused. We affirm.
On August 9, 2012, Gerdon filed his fourth (third successive) petition for post-conviction relief from his 2004 conviction for four counts of sexual abuse of a minor under the age of sixteen, Idaho Code § 18-1506(1); three counts of lewd and lascivious conduct with a minor under the age of sixteen, I.C. § 18-1508; and two counts of attempted lewd and lascivious conduct with a minor under the age of sixteen, I.C. §§ 18-1508, 18-306. The petition alleged, among other things, that the trial court in his criminal case had failed to rule on a pro se motion that Gerdon had filed after sentencing. In his attached affidavit, Gerdon stated that he wanted to withdraw his guilty plea and proceed to trial in the criminal case but "could not communicate with the people helping [him] with [his] legal defense." Reading the petition liberally, it appears that Gerdon alleges he filed a pro se motion attempting to withdraw his guilty plea after sentencing in 2004. He alleged that the trial court erred by failing to rule on his motion until 2011.
On appeal, neither party explains why the motion was not addressed for over seven years. However, this irregularity does appear to be partially explained in our prior, unreported decision which noted that Gerdon's pro se motion to withdraw his guilty plea and a direct appeal were filed close in time and on potentially similar grounds:
In March 2004, Gerdon, acting pro se, filed a motion to overturn verdict. Shortly thereafter, Gerdon's attorney filed a direct appeal. On May 19, 2005, this Court affirmed Gerdon's judgment of conviction and sentences. Gerdon took no action with respect to his motion to overturn verdict. On August 29, 2011, Gerdon filed an amended motion to vacate, renewing his 2004 motion to overturn verdict. The district court treated both of these motions as an I.C.R. 35 motion, in part because of the relief sought. The district court denied Gerdon's motion, on the grounds that it was untimely and, therefore, the district court lacked jurisdiction to decide the motion.
State v. Gerdon, Docket No. 39396 (Ct. App. Aug. 10, 2012) (unpublished). In that case, we did not reach the merits of the motion because Gerdon failed to file a timely appeal challenging the district court's denial of his motions. However, we noted that Gerdon conceded that the motion was untimely.
The post-conviction court issued a notice of intent to dismiss this fourth petition for post-conviction relief. The notice stated that the claims would be summarily dismissed because they were time-barred, because the merits of some claims had been previously litigated, and because Gerdon waived other claims by not raising them in a prior petition for post-conviction relief. The notice of intent was signed and filed on August 13, 2012; the certificate of delivery, signed by a deputy clerk, indicated that it was mailed on the same day. On September 5, 2012, after noting that no response had ...