from the District Court of the Third Judicial District, State
of Idaho, Canyon County. Hon. Renae J. Hoff, District Judge.
court grant of post-conviction relief, affirmed.
Lawrence G. Wasden, Idaho Attorney General, Boise, for
Kenneth K. Jorgensen, Deputy Idaho Attorney General argued.
G. Massoth, Payette, argued for respondent.
BURDICK, Chief Justice.
State appeals the Canyon County District Court's grant of
post-conviction relief for John David Wurdemann. Wurdemann
was convicted on seven felony counts related to the June 2000
attack of Linda LeBrane. In its order, the district court
ruled that Wurdemann's Sixth Amendment right to counsel
was violated because trial counsel failed to properly
challenge the admission of eyewitness identifications. We
FACTUAL AND PROCEDURAL BACKGROUND
2002, Wurdemann was convicted on seven felony
counts related to the June 2000 attack
of Linda LeBrane. State v.
Wurdemann, No. 30438 (Idaho Ct. App. Feb. 28, 2006)
(unpublished). In 2006, Wurdemann's direct appeal was
denied by the Court of Appeals. Id. In 2011,
Wurdemann was denied post-conviction relief, and he appealed
that denial. In July 2012, while his post-conviction appeal
was pending, Wurdemann filed an Idaho Rule of Civil Procedure
60(b) Motion, Relief from a Judgment or Order. The district
court granted the motion and in March 2015, held a new
evidentiary hearing on whether Wurdemann was denied his Sixth
Amendment right to effective assistance of counsel. Following
the evidentiary hearing, the district court ruled that
Wurdemann was denied his right to the effective assistance of
counsel and vacated his convictions. The State appeals.
STANDARD OF REVIEW
right to grant or deny relief under I.R.C.P. 60(b) is a
discretionary one. Thus, absent a showing of arbitrary
disregard for the relevant facts and principles of law by the
court below, this Court will affirm the lower court's
decision to deny or grant relief under I.R.C.P. 60(b)."
Sherwood & Roberts, Inc. v. Riplinger, 103 Idaho
535, 541, 650 P.2d 677, 683 (1982).
reviewing a district court's decision to grant or deny a
petition for post-conviction relief following an evidentiary
hearing, this Court will not disturb the district court's
factual findings unless they are clearly erroneous."
Booth v. State, 151 Idaho 612, 617, 262 P.3d 255,
State raises two primary arguments on appeal. First, the
State argues the district court erred by granting
Wurdemann's Rule 60(b) motion, which allowed Wurdemann to
pursue his post-conviction claim of ineffective assistance of
counsel. Second, the State argues the district court
incorrectly granted Wurdemann's post-conviction claim of
ineffective assistance of counsel. We address each claim in
The district court's grant of Wurdemann's Rule 60(b)
Appellate Rule 11(a)(7) states that an appeal as a matter of
right may be taken from "[a]ny order made after final
judgment including an order denying a motion to set aside a
default judgment . . . ." I.A.R. 11(a)(7). Here, final
judgment in Wurdemann's post-conviction hearing was
entered on September 15, 2011. The order granting
Wurdemann's I.R.C.P. 60(b) motion was entered on July 5,
2013. Thus, the order granting Wurdemann's I.R.C.P. 60(b)
motion was an "order made after final judgment." As
such, the district court's order granting Wurdemann's
I.R.C.P. 60(b) motion was appealable as a matter of right.
I.A.R. 11(a)(7); Wheeler v. McIntyre, 100 Idaho 286,
288-89, 596 P.2d 798, 800-01 (1979) ("Considering first
the appealability of this order, we note that I.A.R. 11(a)(5)
permits an appeal as a matter of right from 'any order
made after final judgment.' Since the order denying the
motions is one made after final judgment, it is appealable .
. . .").
Under Idaho Appellate Rule 14:
Any appeal as a matter of right from the district court may
be made only by physically filing a notice of appeal with the
clerk of the district court within 42 days from the date
evidenced by the filing stamp of the clerk of the court on
any judgment or order of the district court appealable as a
matter of right in any civil or criminal action.
filing stamp on the district court's I.R.C.P. 60(b) order
is July 5, 2013. The State filed its notice of appeal on July
16, 2015. This was well beyond the mandatory forty-two-day
filing period allowed under Idaho Appellate Rule 14(a).
Goodman Oil Co. v. Scotty's Duro-Bilt
Generator, Inc., 147 Idaho 56, 58, 205 P.3d 1192,
1194 (2009) ("Any appeal as a matter of right from the
district court must be filed within forty-two days of the
judgment." (citing I.A.R. 14(a))). Because the State did
not appeal the district court's order granting
Wurdemann's I.R.C.P. 60(b) motion within forty-two days,
we dismiss the State's arguments regarding whether
Wurdemann's I.R.C.P. 60(b) motion was properly granted
and affirm the district court's grant of the motion.
Id. at 58-59, 205 P.3d at 1194-95 ("Failure to
comply with time restrictions is jurisdictional 'and
shall cause automatic dismissal of such appeal.' "
(quoting I.A.R. 21)).
The district court's finding of ineffective assistance of
the grant of Wurdemann's I.R.C.P. 60(b) motion, the
district court held an evidentiary hearing on the issue of
whether Wurdemann was denied effective assistance of counsel
in violation of his Sixth Amendment rights. The district
court found that Wurdemann was denied his right to effective
assistance of counsel because trial counsel failed to
properly challenge LeBrane's eyewitness identification of
Wurdemann at trial. The State appeals this ruling, arguing
that Wurdemann has failed to meet his burden to show that his
counsel's performance fell below an objective standard of
When reviewing a district court's decision to grant or
deny a petition for post-conviction relief following an
evidentiary hearing, this Court will not disturb the district
court's factual findings unless they are clearly
erroneous. I.R.C.P. 52(a); Murray v. State, 121
Idaho 918, 921, 828 P.2d 1323, 1326 (Ct. App. 1992). A claim
of ineffective assistance of counsel presents a mixed
question of law and fact. Murray, 121 Idaho at 921,
828 P.2d at 1326; Strickland v. Washington, 466 U.S.
668, 698 (1984). When faced with a mixed question of fact and
law, the Court will defer to the district court's factual
findings if supported by ...