Opinion No. 7
from the District Court of the Fourth Judicial District,
State of Idaho, Ada County. Hon. Jason D. Scott, District
summarily dismissing petitions for post-conviction relief,
D. Fredericksen, State Appellate Public Defender; Maya P.
Waldron, Deputy Appellate Public Defender, Boise, for
Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy
Attorney General, Boise, for respondent.
Garza Jr. appeals from the district court's summary
dismissal of Garza's petitions for post-conviction
relief. Specifically, Garza argues the district court erred
because Garza's counsel rendered ineffective assistance
by failing to file notices of appeal. For the reasons
explained below, we affirm the district court.
AND PROCEDURAL BACKGROUND
consolidated appeals involve two underlying convictions and
two post-conviction relief petitions. In Case No.
CR-2014-09960, Garza entered an Alford plea to aggravated assault, pursuant to
Idaho Code §§ 18-901(a) and 18-905(a). In Case No.
CR-2014-18183, Garza pled guilty to possession of a
controlled substance with intent to distribute, pursuant to
Idaho Code § 37-2732(a)(1)(A). Garza waived his right to
appeal in both cases under binding Idaho Criminal Rule
11(f)(1)(C) plea agreements. At a joint sentencing hearing,
the district court accepted the plea agreements.
having waived his right to appeal, Garza instructed his
attorney to file notices of appeal. His attorney declined,
and no appeals were filed. Garza filed two petitions for
post-conviction relief, which included allegations that his
trial counsel was ineffective in failing to file notices of
appeal within the forty-two-day limit. Garza's trial
counsel noted in an affidavit that he "did not file the
appeal(s) and informed Mr. Garza that an appeal was
problematic because he waived his right to appeal in his Rule
filed motions for summary judgment and argued his right to
appeal should be reinstated. The State cross-filed motions
for summary dismissal. In addressing the motions, the
district court focused on whether Garza's counsel was
ineffective in failing to file appeals despite Garza's
waiver of his appellate rights. The district court recognized
that the issue is currently undecided in Idaho and that eight
federal circuit courts adhere to the majority rule--prejudice
is presumed when an attorney disregards the client's
instruction to file an appeal, even if the client waived the
right to appeal. The district court also considered the
minority rule followed by two federal circuit courts--if a
defendant waives his or her appellate rights, prejudice is
not presumed when the attorney fails to file notices of
appeal. The district court ultimately followed the minority
rule and did not presume that counsel's failure to file
notices of appeal was prejudicial. Instead, the district
court required Garza to show prejudice and, specifically, to
show nonfrivolous grounds for appeal (either that the appeal
waiver is invalid or unenforceable or that the issues Garza
wants to pursue on appeal are outside the scope of the
waiver). Because Garza did not make any such showing, the
district court summarily dismissed Garza's petitions.
Garza timely appeals.