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McKinney v. State

Supreme Court of Idaho

June 20, 2017

RANDY L. McKINNEY, Plaintiff-Appellant,
STATE OF IDAHO, Defendant-Respondent.

         2017 Opinion No. 64

         Appeal from the District Court of the Seventh Judicial District of the State of Idaho, in and for Butte County. Hon. Alan C. Stephens, District Judge.

         The judgment of the district court is affirmed.

          Erik R. Lehtinen, Deputy State Appellate Public Defender, Boise, argued for appellant.

          LaMont L. Anderson, Deputy Attorney General, Boise, argued for respondent.

          EISMANN, Justice.

         This is an appeal out of Butte County from a judgment dismissing a petition for post-conviction relief. We affirm the judgment.


         Factual Background.

         In November 1981, a jury found Randy Lynn McKinney guilty of first degree murder (both by premeditated killing and by felony murder), conspiracy to commit murder, robbery, and conspiracy to commit robbery for the April 1981 shooting death of Robert Bishop, Jr. On March 27, 1982, the district court sentenced McKinney to death for first degree murder, an indeterminate thirty years for conspiracy to commit murder and conspiracy to commit robbery, and fixed life for robbery. Id. This Court affirmed his convictions and the death sentence, State v. McKinney, 107 Idaho 180, 687 P.2d 570 (1984); and this Court affirmed the denial of his subsequent petitions for post-conviction relief, McKinney v. State, 115 Idaho 1125, 772 P.2d 1219 (1989); McKinney v. State, 133 Idaho 695, 992 P.2d 144 (1999); McKinney v. State, 143 Idaho 590, 150 P.3d 283 (2006).

         In April 1997, McKinney filed a petition for habeas corpus in federal district court, and on September 25, 2009, the court ruled that he was not entitled to any relief related to the guilt phase of his state case but that he was entitled to resentencing because of the ineffective assistance of his attorney at the capital sentencing hearing.

         Rather than appealing the court's decision, the State and McKinney entered into a binding sentencing agreement titled "Rule 11 Sentencing Agreement" on November 18, 2009, in which they agreed that McKinney would "be sentenced to a term of fixed life without the possibility of parole for the crime of first-degree murder, concurrent with his sentences for conspiracy to commit murder, robbery and conspiracy to commit robbery."[1] In 2009, McKinney was sentenced in accordance with the plea agreement.

         In 2010, McKinney filed a motion pursuant to Idaho Criminal Rule 35 to correct an illegal sentence, contending that being sentenced for both robbery and first-degree murder was barred by the state and federal double jeopardy clauses and a multiple-punishment statute that was in effect when he committed the crimes. The district court denied his motion, and this Court affirmed that denial on appeal. State v. McKinney, 153 Idaho 837, 291 P.3d 1036 (2013).

         On April 8, 2013, McKinney filed a petition for post-conviction relief, commencing this case. In his petition, McKinney requested that counsel be appointed to represent him, and the district court appointed counsel for him.

         On July 29, 2014, the State filed a motion to dismiss the petition. The grounds stated in the motion were as follows:

This petition should be dismissed, as it is a successive petition, which has been previously denied in Butte County Case No. CV-2001-000105; Butte County Case No. CV-2002-000118; and Bonneville County Case No. CV-1990-00040093-PC, I.C. § 19-4908. The State respectfully requests the Court take judicial notice of the prior petition and pleadings in each of the three above entitled cases.
Petitioner's Petition for Post Conviction Relief is barred by the Statute of Limitations, I.C. § 19-4902(a).
Additionally, Petitioner waived his right to appeal or seek post conviction relief from the disposition of the Court in Butte County Case No. CR-81-0005, at sentencing, on November 18, 2009, the agreement of which is attached hereto as Exhibit "1." The defendant, as well as two of defendant's separate and independent legal counsel entered into the plea agreement in writing on November 18, 2009.
Petitioner has no evidentiary basis to support his claims. Small v. State, 132 Idaho 327, 331, 971 P.2d 1151, 1155 (Ct. App. 1999).

         The State did not file a memorandum or affidavit in support of the motion to dismiss. However, it did file a motion asking the district court to take judicial notice of the "Transcript of the Defendant's Re-Sentencing on November 18, 2009 at which Defendant waives his right to appeal this sentence pursuant to a plea agreement" and "of the Record, Transcripts, pleadings, Orders, Rulings or Opinions[, ] responsive pleadings, guilty plea forms, agreements and including any and all filed or lodged documents in Case No. CR 81-0005." The State's motion to dismiss was heard over one year later on November 18, 2014. At the beginning of the hearing, the district court granted the motion for judicial notice.[2] After the hearing, the court issued its findings of fact and conclusions of law in which it concluded that "the Petitioner has failed to alleged [sic] facts supporting the claims in the application for relief and that no genuine issue of material fact exists. The claims are hereby dismissed with prejudice." It then entered a judgment dismissing the petition with prejudice, and McKinney timely appealed.


         Did the District Court Err in Dismissing McKinney's Petition for Post-Conviction Relief?

         "An application for post-conviction relief is in the nature of a civil proceeding, entirely distinct from the underlying criminal action. The Idaho Rules of Civil Procedure generally apply." Ferrier v. State, 135 Idaho 797, 798-99, 25 P.3d 110, 111-12 (2001). "Unlike the complaint in an ordinary civil action, however, an application for post-conviction relief must contain more than 'a short and plain statement of the claim' that would suffice for a complaint under I.R.C.P. 8(a)(1)." Charboneau v. State, 144 Idaho 900, 903, 174 P.3d 870, 873 (2007). Rather, Idaho Code section 19-4903 requires that the petition shall set forth, separately from other factual allegations, "[f]acts within the personal knowledge of the applicant, " which shall be verified, and that "[a]ffidavits, records, or other evidence supporting its allegations shall be attached to the application or the application shall recite why they are not attached."

         Idaho Code section 19-4906(c) permits either party in a post-conviction relief proceeding to file a motion for summary disposition of the application. The trial court can grant the motion when "it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Id.

         Because a post-conviction relief proceeding is governed by the Idaho Rules of Civil Procedure, Stuart v. State, 127 Idaho 806, 813, 907 P.2d 783, 790 (1995); I.C. § 19-4907(a), a motion for summary disposition must "state with particularity the grounds therefor." Saykhamchone v. State, 127 Idaho 319, 322, 900 P.2d 795, 798 (1995); I.R.C.P. 7(b)(1)(B). "If the notice is sufficient that the other party cannot assert surprise or prejudice, the requirement is met." DeRushé v. State, 146 Idaho 599, 601, 200 P.3d 1148, 1150 (2009).

         In this case, McKinney was represented by counsel. If he contended that the grounds of the State's motion to dismiss were not stated with particularity, he was required to raise that issue in the trial court, and he cannot raise it for the first time on appeal. Id. at 602, 200 P.3d at 1151. In Kelly v. State, 149 Idaho 517, 236 P.3d 1277 (2010), we explained what a petitioner for post-conviction relief must do in order to preserve any issue of lack of particularity.

To properly preserve this issue for appeal, an applicant would merely have to raise the issue below so that the district court had an opportunity to rule on it. For example, where the petitioner for post-conviction relief receives a motion for summary dismissal and does not feel that the motion for summary dismissal and accompanying memoranda provides him with sufficient notice of the grounds for summary dismissal-under the standard established in DeRushé-he may file a motion with the district court under I.R.C.P. 7, objecting to the motion for summary dismissal on the basis that it fails to provide him with sufficient notice. Likewise, the petitioner could object to the sufficiency of the notice at the summary dismissal hearing before the district court. Finally, if the district court grants the State's motion for summary dismissal, the petitioner may file an I.R.C.P. 11 motion for reconsideration, citing to DeRushé and arguing that the State's motion and accompanying memoranda did not provide sufficient notice.

Id. at 522 n.1, 236 P.3d at 1282. McKinney did not contend in the trial court that the State's motion to dismiss failed to state the grounds of the motion with sufficient particularity.

         Idaho Code section 19-4906(b) provides that the court "may indicate to the parties its intention to dismiss the application and its reasons for so doing, " but if it does so "[t]he applicant shall be given an opportunity to reply within 20 days to the proposed dismissal." Therefore, "if the State moves to dismiss a petition under Idaho Code § 19-4906(c), the court cannot dismiss a claim on a ground not asserted by the State in its motion unless the court gives the twenty-day notice required by Section 19-4906(b)." DeRushé, 146 Idaho at 602, 200 P.3d at 1151.

         On appeal, McKinney contends that the district court erred in dismissing five of his post-conviction claims on grounds that were not asserted by the State and that the court did not give him a twenty-day opportunity to reply to its reasons for dismissing them. Those claims are labeled by McKinney on appeal as "Claims 2, 3, 4, 6 & 7."

Claim No. 2.

McKinnney asserted as Claim No. 2:

Whether or not upon re-sentencing, and pursuant to the binding plea agreement, the Petitioner was sentenced for "premeditated Murder", or was the Petitioner sentenced for "First Degree Murder" (Felony Murder), and to continue to refer to the sentence and conviction as Premeditated Murder is not correct and violates Due Process?

         In denying that claim, the district court wrote:

The Petitioner's claim that he was sentenced for "premeditated murder" as opposed to "first degree murder" is a frivolous claim for which relief cannot be granted, nor does the Petitioner allege any specific violation of law, error by the Court or cause of action for which relief can be granted, as noted by the Court, "it defies belief that the State would gratuitously absolve McKinney of serving any sentence whatsoever for premeditated murder." State v. McKinney, 153 Idaho 837[, 841 n.7, 291 P.3d 1036, 1040 n.7 (2013)].

         Neither the State nor the district court gave McKinney notice of this reason for dismissal. However, that does not require that we automatically vacate the dismissal of this claim. Ridgley ...

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