Opinion No. 25
decision is not final until exception of the 21 day petition
for rehearing period. Pursuant to rule 118 of the Idaho
from the District Court of the Seventh Judicial District,
State of Idaho, Bingham County. Hon. Darren B. Simpson,
Judgment denying petition for post-conviction relief,
James Crow, Boise, Pro se appellant.
Lawrence G. Wasden, Attorney General; John C. McKinney,
Deputy Attorney General, Boise, for respondent.
James Crow appeals from the district court's judgment
denying relief on Crow's petition for post-conviction
relief. For the reasons set forth below, we affirm.
was charged with attempted first degree murder, I.C. §
§ 18-4001, 18-4002, 18-4003(a), 18-4004 and 18-306;
domestic battery involving traumatic injury in the presence
of children, I.C. § § 18-918(2)(a) and (b) and
18-918(4); use of a firearm in the commission of a felony,
I.C. § 19-2520; and infliction of great bodily injury,
I.C. § 19-2520B. Crow entered an Alford
plea to attempted first degree murder and the state agreed to
dismiss the remaining charges and enhancements. The district
court sentenced Crow to a unified term of fifteen years, with
a minimum period of confinement of nine years. The district
court also imposed a fine of $5000 pursuant to I.C. §
19-5307. Crow filed an I.C.R. 35 motion for
reduction of his sentence, which was denied by the district
court. On appeal, Crow argued that the $5000 fine was not
lawful, that his sentence was excessive, and that the
district court erred by denying his I.C.R. 35 motion. In an
unpublished opinion, this Court reduced the fine to $2500,
the maximum lawful amount, and otherwise affirmed Crow's
sentence and the denial of his I.C.R. 35 motion. State v.
Crow, Docket No. 40073, (Ct.App. Dec. 31, 2013).
April 5, 2013, Crow filed a pro se petition for
post-conviction relief. After appointing counsel for Crow,
the district court stayed the post-conviction case pending
completion of the direct appeal. After the remittitur was
filed in the appeal, the district court held an evidentiary
hearing on Crow's post-conviction claims and denied
Crow's petition. Crow appeals.
petition for post-conviction relief initiates a proceeding
that is civil in nature. I.C. § 19-4907; Rhoades v.
State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009);
State v. Bearshield, 104 Idaho 676, 678, 662 P.2d
548, 550 (1983); Murray v. State, 121 Idaho 918,
921, 828 P.2d 1323, 1326 (Ct.App. 1992). In order 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, 440 (Ct.App. 1988). We
exercise free review of the district court's application
of the relevant law to the facts. Nellsch v. State,
122 Idaho 426, 434, 835 P.2d 661, 669 (Ct.App. 1992).
of ineffective assistance of counsel may properly be brought
under the post-conviction procedure act. Murray, 121
Idaho at 924-25, 828 P.2d at 1329-30. To prevail on an
ineffective assistance of counsel claim, the petitioner must
show that the attorney's performance was deficient and
that the petitioner was prejudiced by the deficiency.
Strickland v. Washington, 466 U.S. 668, 687-88, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hassett v. State,
127 Idaho 313, 316, 900 P.2d 221, 224 (Ct.App. 1995). To
establish a deficiency, the petitioner has the burden of
showing that the attorney's representation fell below an
objective standard of reasonableness. Aragon v.
State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988).
Where, as here, the petitioner was convicted upon a guilty
plea, to satisfy the prejudice element, the petitioner must
show that there is a reasonable probability that, but for
counsel's errors, he or she would not have pled guilty
and would have insisted on going to trial. Plant v.
State, 143 Idaho 758, 762, 152 P.3d 629, 633 (Ct.App.
2006). This Court has long adhered to the proposition that
tactical or strategic decisions of trial counsel will not be
second-guessed on appeal unless those decisions are based on
inadequate preparation, ignorance of relevant law, or other
shortcomings capable of objective evaluation. Howard v.
State, 126 Idaho 231, 233, 880 P.2d 261, 263 (Ct.App.
United States Supreme Court, addressing the issue of
counsel's advice prior to a defendant's ...