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Rome v. State

Supreme Court of Idaho

November 29, 2018

SONNY ROME, Petitioner-Appellant,
STATE OF IDAHO, Respondent.

          Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Lansing L. Haynes, District Judge.

         District court order granting involuntary dismissal of petition for post-conviction relief, affirmed.

          Eric D. Frederickson, State Appellate Public Defender, Boise, for appellant. Brian R. Dickson, Deputy Appellate Public Defender argued.

          Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Kenneth K. Jorgensen, Deputy Attorney General argued.


         Sonny Rome brings this post-conviction appeal from the Kootenai County district court. In March 2016, Rome moved for post-conviction relief from his aiding and abetting a burglary conviction, claiming counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984). In support of post-conviction relief, he challenged counsel's performance at both the trial and direct-appeal phases. The district court held a one-day trial on Rome's post-conviction petition. At the trial, after Rome presented his case in chief, the State moved for a directed verdict. The district court granted the State's motion. Rome timely appeals, arguing that the district court erred by: (1) not taking judicial notice of certain items at the post-conviction phase, and (2) concluding trial counsel was not ineffective for failing to request a certain jury instruction. We affirm.


         A jury convicted Rome of aiding and abetting a burglary. As articulated in his appellate brief, the facts underlying Rome's conviction are as follows:

On December 11, 2013, Sonny Rome drove to a Walmart store in Post Falls. Testimony established that a woman[[1] took a vacuum cleaner from the store and entered Rome's truck with it; Rome was driving and left the area with the woman and vacuum. Rome was charged with aiding and abetting a burglary (the theft of the vacuum). Rome was convicted[.]

         In addition to finding that Rome had aided and abetted the burglary, the jury found that, consistent with the State's amended information, Rome was a persistent violator under Idaho Code section 19-2514 because he had four prior felony convictions. State v. Rome, 160 Idaho 40, 42, 368 P.3d 660, 662 (Ct. App. 2016). On Rome's direct appeal taken to the Court of Appeals, the Court of Appeals rejected Rome's constitutional and persistent-violator-enhancement claims, affirming his conviction. Rome, 160 Idaho at 44-45, 368 P.3d at 664-65.

         Rome timely filed a pro se petition for post-conviction relief in March 2016. He was appointed post-conviction counsel after filing his petition, and then amended his petition with counsel's assistance in November 2016. Rome alleged that trial counsel was ineffective under Strickland for failing to: (1) file "a motion to suppress involuntary statements"; (2) object to "hearsay and inadmissible testimony"; (3) "properly object to conviction records coming into evidence"; (4) "object and properly advise client regarding testifying"; (5) "obtain a correct jury instruction for 'aiding and abetting' and arguing the same"; and (6) "present mitigation at sentencing and Rule 35 hearing[.]" And as to appellate counsel, Rome alleged appellate counsel was ineffective under Strickland for failing to (1) "raise [the] issue of testimony about defendant's identity"; (2) "raise the issue of sufficiency of proof of prior convictions"; and (3) "raise the issue of cumulative errors."[2] The State answered in November 2016, and sought summary dismissal in December 2016. The district court denied the State's motion for summary dismissal in January 2016, concluding the State's motion was untimely under the scheduling order. The district court clarified that it would consider the summary dismissal briefing as trial briefing, but instructed the parties to submit additional trial briefing if they desired.

         A bench trial occurred on February 22, 2017. In presenting his case in chief, Rome called two witnesses: Jay Logsdon (Rome's trial and direct appeal counsel) and Debra George (Rome's partner). The State moved for a directed verdict once Rome rested. The district court granted the State's motion. When doing so, the district court explained, as relevant here, that "the [c]ourt has not been asked to take judicial notice, at least a formal motion hasn't been made[.]"Also relevant here, the district court ruled that trial counsel was not ineffective for failing to request Rome's preferred "jury instruction for 'aiding and abetting' . . . ." Rome timely appeals, contending the district court erred by concluding that Rome had failed to make a request for judicial notice and that Rome's trial counsel was not ineffective under Strickland for failing to request the jury instruction.


         1. Did the district court abuse its discretion in its judicial notice ruling?

         2. Did the district court err by concluding trial counsel's failure to request a lesser-included-offense instruction did not constitute ineffective assistance of counsel under Strickland?


         Post-conviction proceedings are governed by Idaho Code sections 19-4901 to 4911. ("The Uniform Post-Conviction Procedure Act"). Post-conviction petitions are civil actions, rather than criminal, that are "governed by the Idaho Rules of Civil Procedure." Rhoades v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009); I.C. § 19-4907(a) ("All rules and statutes applicable in civil proceedings including pre-trial, discovery and appellate procedures are available to the parties."). Accordingly, an applicant for post-conviction relief "must . . . prove the allegations in the request for relief by a preponderance of the evidence." State v. Dunlap, 155 Idaho 345, 361, 313 P.3d 1, 17 (2013).

         Rome argues that this Court must review the lower court's findings that Rome failed to meet the preponderance of the evidence standard on his claims under a directed-verdict standard of review. Rome would be correct if the trial court's grant of a Rule 50(a) directed verdict was proper in this case. But, procedurally speaking, directed verdicts under Rule 50(a) are reserved for jury trials while the Uniform Post-Conviction Procedure Act provides that when a petition for post-conviction relief advances to the trial stage, the proceedings will be before a judge, not a jury. Compare I.R.C.P 50(a) ("The order of the court granting a motion for a directed verdict is effective without the agreement of the jury."), with I.C. § 19-4907(a) ("The application shall be heard in, and before any judge of, the court in which the conviction took place.").

         This distinction is important in this case because Rome appeals the findings of such a bench trial. A "directed verdict at the close of the plaintiff's evidence in a bench trial is inappropriate" because a "judge does not render a verdict in a bench trial." Spirit Ridge Mineral Springs, LLC v. Franklin Cnty., 157 Idaho 424, 426, 337 P.3d 583, 585 (2014). Rather, a directed verdict is "[a] ruling by a trial judge taking a case from the jury because the evidence will permit only one reasonable verdict." Id. (quoting Black's Law Dictionary, at 1791 (10th ed. 2014)).

         Therefore, for purposes of this appeal, this Court will apply the involuntary dismissal standard under Rule 41(b) of the Idaho Rules of Civil Procedure. Rule 41(b) "empowers a district court to dismiss a case after the plaintiff's presentation of the evidence at a trial without a jury." Id. Because the State petitioned the district court to dismiss the case after Rome presented his evidence, Rule 41(b) is the procedurally proper mechanism for the trial court's action.

         The distinction between a directed verdict and involuntary dismissal is important for appellate review purposes:

When a defendant moves for an involuntary dismissal at the close of the plaintiff's presentation in a non-jury case, the court sits as a trier of fact and is not required to construe all evidence and inferences to be drawn therefrom in the light most favorable to the plaintiff; instead the district court may weigh the evidence.

Id. (quoting Keenan v. Brooks, 100 Idaho 823, 825, 606 P.2d 473, 475 (1980)). Given that the trial court is the finder of fact under the Rule 41(b) standard, the appellate court will uphold those findings on review "so long as those findings are not clearly erroneous." Id. (citing Staggie v. Idaho Falls Consol. Hosps., 110 Idaho 349, 715 P.2d 1019 (Ct. App. 1986)). "A factual finding is clearly erroneous only if it is not supported by 'substantial and competent evidence in the record.'" Stuart v. State, 127 Idaho 806, 813, 907 P.2d 783, 790 (1995) (quoting Pace v. Hymas, 111 Idaho 581, 589, 726 P.2d 693, 701 (1986)). Therefore, this Court will uphold the district court's findings so long as they are supported by substantial and competent evidence.

         IV. ANALYSIS

         A. The district court did not abuse its discretion in its ruling that Rome's requests for judicial notice lacked the necessary information required by Former Rule 201(d) of the Idaho Rules of Evidence.

         Rome's first argument is that the district court erred by not taking judicial notice of certain items he requested. Rome's argument triggers the former Idaho Rule of Evidence 201(d) ("Former Rule 201(d)")[3]. Former Rule 201(d) provided:

When a party makes an oral or written request that a court take judicial notice of records, exhibits or transcripts from the court file in the same or a separate case, the party shall identify the specific documents or items for which the judicial notice is requested or shall proffer to the court and serve on all parties copies of such documents or items. A court shall take judicial notice if requested by a party and supplied with the necessary information.

         I.R.E 201(d) (1985) (amended 2018). "[W]hile the interpretation of a court rule must always begin with the plain, ordinary meaning of the rule's language it may be tempered by the rule's purpose. We will not interpret a rule in a way that would produce an absurd result." State v. Montgomery, 163 Idaho 40, 44, 408 P.3d 38, 42 (2017). In interpreting Former Rule 201(d), this Court has explained that,

[w]here an attorney is requesting that a court take judicial notice of a document or items, that attorney must state with particularity what he is asking the Court to take notice of. Where an attorney does not meet this requirement it is improper for a court to take judicial notice under I.R.E. 201(d).

Taylor v. McNichols, 149 Idaho 826, 835, 243 P.3d 642, 651 (2010).

         This Court has not previously addressed whether a district court's judicial notice ruling under Former Rule 201(d) is reviewed for an abuse of discretion. Because the ruling is an evidentiary one, an abuse of discretion standard is appropriate. See, e.g., Mulford v. Union Pac. R.R., 156 Idaho 134, 140, 321 P.3d 684, 690 (2014); see also Bolognese v. Forte, 153 Idaho 857, 863-64, 292 P.3d 248, 254-55 (2012) (asking whether the district court abused its discretion by failing to take judicial notice of ordinances and administrative rules but not specifying the particular judicial notice rule at issue); Fortin v. State, 160 Idaho 437, 442, 374 P.3d 600, 605 (Ct. App. 2016) (reviewing ruling under Former Rule 201(d) for an abuse of discretion). This remains so even though Former Rule 201(d) sets forth a mandatory directive. As other jurisdictions have explained, "[a]lthough the rule is phrased in mandatory language, courts of appeals review a district court's refusal to take judicial notice for abuse of discretion." See Toth v. Grand Trunk R.R., 306 F.3d 335, 349 (6th Cir. 2002) (citing Waid v. Merrill Area Pub. Schs., 130 F.3d 1268, 1272 (7th Cir. 1997)); York v. AT & T Co., 95 F.3d 948, 958 (10th Cir. 1996)).

         This Court will therefore review the district court's ruling under Former Rule 201(d) for an abuse of discretion. To determine whether the district court abused its discretion, this Court employs a four-part analysis to evaluate whether the district court: "(1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with relevant legal standards; and (4) reached ...

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