Pomrenke v. State ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 48161
STEVEN ANTHONY POMRENKE, )
) Filed: August 31, 2021
Petitioner-Appellant, )
) Melanie Gagnepain, Clerk
v. )
)
STATE OF IDAHO, )
)
Respondent. )
)
Appeal from the District Court of the Fifth Judicial District, State of Idaho,
Jerome County. Hon. Rosemary Emory, District Judge.
Judgment summarily dismissing petition for post-conviction relief, affirmed.
Dennis A. Benjamin of Nevin, Benjamin & McKay, LLP, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
Attorney General, Boise, for respondent.
________________________________________________
LORELLO, Judge
Steven Anthony Pomrenke appeals from the judgment summarily dismissing a petition
for post-conviction relief. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
After patronizing a local bar, Pomrenke led officers on an early-morning, high-speed
chase that ended when he collided with a semi-truck while traveling against oncoming traffic.
Pomrenke was transported to a local hospital, but his passenger died at the scene. Two
subsequent breath tests indicated that Pomrenke’s blood alcohol content was .209 and .199,
respectively. A jury found Pomrenke guilty of vehicular manslaughter, I.C. § 18-4006(3)(b), and
driving without privileges, I.C. § 18-8001(3). This Court affirmed Pomrenke’s judgment of
1
conviction and sentences in an unpublished opinion. State v. Pomrenke, Docket No. 45561 (Ct.
App. Dec. 31, 2018).
Pomrenke then filed a petition for post-conviction relief, asserting various allegations of
ineffective assistance of counsel. The State and Pomrenke each moved for summary disposition.
The district court summarily dismissed Pomrenke’s petition for post-conviction relief. Pomrenke
appeals.
II.
STANDARD OF REVIEW
On appeal from an order of summary dismissal in a post-conviction case, we apply the
same standards utilized by the trial courts and examine whether the petitioner’s admissible
evidence asserts facts which, if true, would entitle the petitioner to relief. Ridgley v. State, 148
Idaho 671, 675, 227 P.3d 925, 929 (2010); Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920,
923 (Ct. App. 2008). Over questions of law, we exercise free review. Rhoades v. State, 148
Idaho 247, 250, 220 P.3d 1066, 1069 (2009); Downing v. State, 136 Idaho 367, 370, 33 P.3d 841,
844 (Ct. App. 2001).
III.
ANALYSIS
Pomrenke argues that the summary dismissal of his ineffective assistance of counsel
claims was error because the record “establishes a prima facie case” of a violation of his right to
effective assistance of counsel under Strickland v. Washington, 466 U.S. 688 (1984) and
“conclusively shows” that prejudice to him should be presumed under United States v. Cronic,
466 U.S. 648 (1984). The State responds that Pomrenke has waived or failed to preserve certain
aspects of the issues he raises on appeal and that summary dismissal of his petition was proper.
We hold that Pomrenke has failed to show error in the summary dismissal of his petition for
post-conviction relief.
A. Ineffective Assistance of Counsel
Pomrenke contends that the district court erred by summarily dismissing his allegations
of ineffective assistance of counsel under Strickland. Claims for post-conviction relief may be
summarily dismissed if the petitioner’s allegations are clearly disproven by the record of the
criminal proceedings, if the petitioner has not presented evidence making a prima facie case as to
2
each essential element of the claims, or if the petitioner’s allegations do not justify relief as a
matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281 (2010); DeRushé v. State,
146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary dismissal of a claim for
post-conviction relief is appropriate when the court can conclude, as a matter of law, that the
petitioner is not entitled to relief even with all disputed facts construed in the petitioner’s favor.
For this reason, summary dismissal of a post-conviction petition may be appropriate even when
the State does not controvert the petitioner’s evidence. See Roman v. State, 125 Idaho 644, 647,
873 P.2d 898, 901 (Ct. App. 1994).
Generally, to prevail on an ineffective assistance of counsel claim, a petitioner must show
that the attorney’s performance was deficient and that the petitioner was prejudiced by the
deficiency. Strickland, 466 U.S. at 687-88; Self v. State, 145 Idaho 578, 580, 181 P.3d 504, 506
(Ct. App. 2007). 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); Knutsen v. State, 144 Idaho 433, 442, 163 P.3d
222, 231 (Ct. App. 2007). To establish prejudice, the petitioner must show a reasonable
probability that, but for the attorney’s deficient performance, the outcome of the trial would have
been different. Aragon, 114 Idaho at 761, 760 P.2d at 1177; Knutsen, 144 Idaho at 442, 163 P.3d
at 231. Pomrenke asserts that he established a prima facie case that his trial counsel was
ineffective for failing to call available witnesses, to seek an unconscious-act defense jury
instruction, and to give an adequate opening statement or closing argument. We address each
allegation in turn.
1. Failure to call witnesses
Pomrenke argues that the district court erred in summarily dismissing his allegation that
trial counsel was ineffective by failing to call witnesses to support an involuntary intoxication
defense. In support of this argument, Pomrenke points to two witnesses (himself and a woman
who saw him at the bar prior to the accident) whose testimony allegedly would have established
that defense. Pomrenke explains that his counsel’s “theory of the case was involuntary
intoxication” and that, without testimony from Pomrenke and the woman, “there was absolutely
no evidence to support that theory.”
3
The decision of what witnesses to call at trial is strategic or tactical. Bagshaw v. State,
142 Idaho 34, 38, 121 P.3d 965, 969 (Ct. App. 2005). When evaluating an ineffective assistance
of counsel claim, this Court does not second-guess strategic and tactical decisions, and such
decisions cannot serve as a basis for post-conviction relief unless the decisions are shown to have
resulted from inadequate preparation, ignorance of the relevant law or other shortcomings
capable of objective review. Pratt v. State, 134 Idaho 581, 584, 6 P.3d 831, 834 (2000). In
addition, there is a strong presumption that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment. Murray v. State, 156
Idaho 159, 164, 321 P.3d 709, 714 (2014).
Pomrenke’s petition alleges that, after the trial court rejected his request for a jury
instruction on the defense of involuntary intoxication, he gave an offer of proof to establish what
he would have testified to in support of the defense. Pomrenke’s testimony described what he
remembered drinking at the bar prior to the accident. Specifically, Pomrenke testified that, after
arriving at the bar, he ordered a “[s]chooner full of red beer[ 1]”and around 10 p.m. the victim
bought him “a shot[ 2].” Pomrenke further testified that he could not remember anything between
taking that shot and waking up at the hospital the next morning. The State responded to this
offer of proof at trial by noting Pomrenke’s history of alcohol abuse and by providing the trial
court with Pomrenke’s post-accident medical records, which indicated only the presence of
alcohol and cannabis. Ultimately, Pomrenke was not called as a witness at trial in light of the
trial court’s limitations on what he could argue from his testimony.
In support of his petition, Pomrenke also submitted an affidavit from a woman who saw
him at the bar on the night of the accident. In pertinent part, the woman averred that she
observed the “bartender place something into Mr. Pomrenke’s red beer” after speaking with
“some questionable characters, i.e., some people who are believed to be local drug dealers.” The
1
Pomrenke testified that the “red beer” was between sixteen and thirty-two ounces of beer
mixed with Clamato juice.
2
Pomrenke could not testify to the exact contents of the shot he received, but assumed that
it was some type of alcohol.
4
woman further averred that Pomrenke was at the bar when she left at 11:00 p.m. and did not
appear to be under the influence of alcohol and that she recounted her observations to a defense
investigator, but was not subpoenaed or called to testify during Pomrenke’s trial.
The district court concluded Pomrenke failed to show that trial counsel was deficient for
failing to call witnesses to support an involuntary intoxication defense. In support of this
conclusion, the district court observed that “Pomrenke was charged with having a blood alcohol
content exceeding Idaho’s legal limit and causing the death of [the victim].” The district court
then reasoned that “allegations that something was placed into a beer by a bartender [are] wholly
irrelevant to the blood alcohol content of Pomrenke almost three hours later, and whether [the
victim] died the next morning while Pomrenke was driving.” Consequently, the district court
summarily dismissed this ineffective assistance of counsel claim.
On appeal, Pomrenke concedes that his testimony alone was insufficient to warrant an
involuntary intoxication jury instruction, but faults the district court for speculating that the trial
court “would have rejected the involuntary intoxication defense” had the woman testified
because “the evidence did not negate either the driving or intoxication elements of the offense.”
Pomrenke also acknowledges that the trial court barred him from arguing to the jury that he was
involuntarily intoxicated and had excluded other testimony proffered in support of that defense
as irrelevant. 3 However, Pomrenke contends that, unlike the other excluded testimony, the
woman’s testimony was relevant and “directly supportive of the involuntary intoxication
defense” because she “could testify that she saw the bartender place something in Mr.
Pomrenke’s drink.” Moreover, Pomrenke further asserts that the woman’s testimony would have
rendered both his testimony and that of the other excluded witnesses relevant. Thus, Pomrenke
concludes he was entitled to an evidentiary hearing on whether his counsel was deficient for
failing to have the woman testify. We disagree.
Pomrenke’s trial counsel cannot be deficient for failing to call a witness to present
irrelevant evidence. See State v. Jones, 160 Idaho 449, 452, 375 P.3d 279, 282 (2016)
3
Pursuant to a pretrial motion in limine by the prosecution, the trial court excluded as
irrelevant and unfairly prejudicial testimony from two other individuals who were with
Pomrenke at the bar on the night of the offense, alleging that they fell ill after drinking at the bar
and that someone must have “slipped them a drug.”
5
(observing that defendants are not entitled to present irrelevant evidence). To be relevant, the
woman’s testimony had to make a fact of consequence more or less probable than it otherwise
would have been. See I.R.E. 401. Proffered evidence is irrelevant if it tends to prove or disprove
a fact of consequence only through speculative inferences. See State v. Robinett, 141 Idaho 110,
113, 106 P.3d 436, 439 (2005) (holding numeric results of blood alcohol testing irrelevant in
impairment theory driving under the influence case in the absence of evidence correlating the
results to the time of the accident and how the particular blood alcohol level affected the
defendant’s driving).
On appeal, Pomrenke asserts that his counsel could have presented sufficient evidence for
the jury to infer that a “concentrated form of alcohol, like powdered alcohol” was surreptitiously
added to his drink by the bartender and “could have raised his alcohol level above the expected
levels both at the time of driving and at the time of the breath test.” However, based upon the
evidence in the record, jurors could not have drawn this inference without resorting to
speculation. Although the woman, according to her affidavit, could testify that something was
placed into Pomrenke’s red beer, the testimony by itself cannot support an inference that the
“something” was a concentrated form of alcohol. The woman did not describe the item slipped
into Pomrenke’s red beer in her affidavit, nor did she describe any change in Pomrenke’s
behavior after he consumed the drink. Moreover, Pomrenke presented no evidence regarding
what, if anything, he consumed during the three hours that elapsed between 11 p.m. when the
woman left the bar and the collision that killed the victim. 4 Thus, without speculating as to
whether Pomrenke voluntarily drank other alcoholic beverages during that time, jurors could not
deduce that the substance slipped into Pomrenke’s red beer was a concentrated form of alcohol.
In short, Pomrenke failed to present evidence, either direct or circumstantial, of the
identity of the substance allegedly placed in his red beer. The evidence in the record (including
the woman’s affidavit) could support multiple inferences regarding the identity of the item
allegedly placed into Pomrenke’s drink, none more probable than the other. Even when viewed
in the light most favorable to Pomrenke, all the evidence in the record would not allow a jury to
draw the inference that the bartender surreptitiously combined Pomrenke’s red beer with
4
As previously stated, Pomrenke’s offer of proof indicates that he had no recollection of
the night of the offense after about 10 p.m.
6
concentrated alcohol without resorting to speculation. Consequently, Pomrenke has failed to
show that the woman’s testimony was relevant to establishing that he was involuntarily
intoxicated. See id. Accordingly, Pomrenke has failed to show error in the summary dismissal
of this claim.
2. Jury instruction
Pomrenke’s petition alleges his trial counsel was ineffective by failing to request a jury
instruction on the unconscious act defense. The district court dismissed the claim because the
“only theory in the record that might support [an unconscious act] defense is involuntary
intoxication” and the trial court had barred Pomrenke from arguing he was involuntarily
intoxicated. Stated differently, the district court summarily dismissed the claim because the only
apparent cause of Pomrenke’s alleged unconsciousness was voluntary intoxication. On appeal,
Pomrenke argues the summary dismissal was error because “the trial court would have given”
Idaho Criminal Jury Instruction 1507 5 “had defense counsel asked it to do so,” and there is a
reasonable probability the jury would have acquitted Pomrenke on this basis. We disagree.
A trial court presiding over a criminal case must instruct the jury on all matters of law
necessary for the jury’s information. I.C. § 19-2132. In other words, a trial court must deliver
instructions on the rules of law that are “material to the determination of the defendant’s guilt or
innocence.” State v. Mack, 132 Idaho 480, 483, 974 P.2d 1109, 1112 (Ct. App. 1999). This
necessarily includes instructions on the “nature and elements of the crime charged and the
essential legal principles applicable to the evidence that has been admitted.” State v. Gain, 140
Idaho 170, 172, 90 P.3d 920, 922 (Ct. App. 2004). A requested instruction on governing law
must be given where: (1) it properly states the governing law; (2) a reasonable view of the
5
Idaho Criminal Jury Instruction 1507 describes the unconscious act defense and reads:
A person who commits what would otherwise be a criminal act without
being conscious of committing the act is not guilty of a crime.
Evidence has been received which may tend to show that the defendant
was not conscious of committing the act for which the defendant is here on trial.
If after a consideration of all the evidence you have a reasonable doubt that the
defendant was conscious of committing the act at the time the alleged crime was
committed, the defendant must be found not guilty.
7
evidence would support the defendant’s legal theory; (3) the subject is not adequately covered by
other instructions given to the jury; (4) and the instruction does not constitute an impermissible
comment on the evidence. State v. Fetterly, 126 Idaho 475, 476-77, 886 P.2d 780, 781-82 (Ct.
App. 1994).
Even accepting Pomrenke’s assertion that “there is no dispute” the first, third and fourth
elements of this test are satisfied, there is still insufficient evidence in the record to satisfy the
second element. Pomrenke contends that two portions of his testimony during his offer of proof
provide “some evidence” that he “was not conscious [when] he was driving” and this would
satisfy the second element. Specifically, Pomrenke testified that the last thing he remembers
from the night of the accident is seeing that a clock in the bar read 10:04 p.m. while drinking a
shot and that he did not remember driving, crashing through power poles, or hitting a truck
afterward. A reasonable view of this evidence, however, cannot support an unconscious act
defense for two reasons. First, memory loss, by itself, is insufficient to compel issuance of an
unconscious act instruction. See State v. Caddell, 215 S.E.2d 348, 360-61 (N.C. 1975)
(observing that amnesia, by itself, is not a defense to a crime); Polston v. State, 685 P.2d 1, 11
(Wyo. 1984) (holding that concussion and lack of memory are insufficient, by themselves, to
establish that the defendant was acting in an automatic state). Defendants may be fully aware
while engaging in criminal conduct, but subsequently fail to recall any of the events. This failure
to recall may arise from various sources, such as injuries sustained during or after the criminal
conduct. Second, even if we consider the possibility that Pomrenke’s elevated blood alcohol
content at the time of the offense may have caused his alleged memory loss, he still would not be
entitled to an unconscious act defense instruction. Unconscious acts arising from voluntary
intoxication are not a defense. See I.C. § 18-116 (intoxication no excuse for crime);
I.C. § 18-201(2) (unconscious of criminal act); State v. Gish, 87 Idaho 341, 357, 393 P.2d 342,
351 (1964) (observing that statutes exempting from criminal liability individuals who committed
a crime while unconscious, when construed in conjunction with statutes related to criminal
capacity of those voluntarily intoxicated, do not include those who are voluntary intoxicated)
overruled in part on other grounds by State v. White, 93 Idaho 153, 159, 456 P.2d 797, 803
(1969). As discussed above, Pomrenke did not carry his burden of presenting sufficient evidence
to support a finding that he was entitled to an involuntary intoxication instruction. Consequently,
8
Pomrenke has failed to show that the district court erred in summarily dismissing his allegation
that trial counsel was ineffective by failing to request an unconscious act defense instruction.
3. Opening statement
Pomrenke’s petition alleges his trial counsel was ineffective by foregoing an opening
statement. The district court summarily dismissed this claim, concluding the claim failed under
both prongs of the Strickland test. According to Pomrenke, the summary dismissal was error
because his trial counsel’s “failure to present a defense theory in opening statements so that the
jury could put the [S]tate’s evidence in proper context was unreasonable.” We disagree.
Whether and when to present an opening statement is a tactical decision that will not be
second-guessed on appeal without evidence of inadequate preparation, ignorance of relevant law,
or other shortcomings susceptible to objective evaluation. State v. Abdullah, 158 Idaho 386, 503,
348 P.3d 1, 118 (2015). When evaluating an attorney’s decision to reserve opening argument,
the critical inquiry is whether the decision was reasonable when made. Id.Pomrenke’s counsel initially reserved the right to make an opening statement after the
prosecution rested its case. When the prosecution rested, it renewed a prior motion for a ruling
that Pomrenke could not raise involuntary intoxication as a defense and that evidence supporting
that defense was inadmissible. After the district court determined there was insufficient evidence
“to allow the defense to assert some type of involuntary intoxication defense” and Pomrenke
gave his offer of proof in relation to that issue, he rested his case without presenting an opening
statement or any evidence.
These facts do not generate a genuine issue of fact regarding whether trial counsel’s
decision to forego an opening statement was unreasonable. Trial counsel did not initially waive
opening statement but, rather, chose to reserve it and wait to hear the prosecution’s evidence.
After the trial court ruled that Pomrenke could not argue that he was involuntarily intoxicated,
trial counsel chose not to call any witnesses. The purpose of an opening statement is to outline
the evidence that will be presented during trial. United States v. Dinitz, 424 U.S. 600, 612
(1976) (Burger, C.J., concurring); see also State v. Griffith, 97 Idaho 52, 56, 539 P.2d 604, 608
(1975). “[I]t is not an occasion for argument.” Dinitz, 424 U.S. at 612 (Burger, C.J.,
concurring). The decision to forego an opening statement is not unreasonable where the
defendant has no evidence to adduce. See State v. Kraft, 96 Idaho 901, 905, 539 P.2d 254, 258
9
(1975). Pomrenke has failed to show that there was evidence available to support an involuntary
intoxication defense that trial counsel failed to present. 6 Accordingly, the district court did not
err in summarily dismissing this claim.
4. Closing argument
Pomrenke’s petition also alleges that trial counsel was ineffective by failing to give an
adequate closing argument. At the conclusion of trial in the underlying criminal action,
Pomrenke’s counsel gave the following, one-paragraph closing argument:
Well, all of us in the country are guaranteed the right to a full and fair trial.
That is all Mr. Pomrenke has asked for, and that is all that he has received. He
has faith in this process, and he has faith in this jury. He will honor this jury by
honoring whatever verdict you come to.
The district court summarily dismissed Pomrenke’s claim that this closing argument constituted
ineffective assistance because Pomrenke failed to “point to what arguments should have been
made at trial” or “show that a different closing argument would have likely resulted in a different
outcome at trial.” On appeal, Pomrenke concedes that, as actually presented below, his case left
trial counsel with “absolutely nothing meaningful to say” during closing argument. However,
Pomrenke faults the closing argument for “failing to explain how [he] could be found not guilty.”
He argues that, had trial counsel “presented the available and admissible evidence in support of
the involuntary intoxication or unconscious act defenses (or both), his closing would have been
in support of an actual defense to the charge.”
Closing argument is counsel’s opportunity to “sharpen and clarify issues for resolution by
the trier of fact” as only then, with all the evidence submitted, is it possible to “argue the
inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries’
positions.” Herring v. New York, 422 U.S. 853, 862 (1975). A trial counsel’s decision to waive
6
Pomrenke also argues that the State “admitted the truth” of the allegations that his
counsel had evidence to support an involuntary intoxication and unconscious act defense in its
answer. However, the State gave Pomrenke notice of the alleged deficiencies in his petition in
moving for summary dismissal. Summary dismissal is proper when the petitioner has not
presented evidence making a prima facie case as to each essential element of the claims. Kelly,
149 Idaho at 521, 236 P.3d at 1281. Moreover, Pomrenke has not cited legal authority to support
the proposition that it was error to summarily dismiss this allegation despite alleged admissions
in the State’s answer. Thus, we will not address this argument further because Pomrenke has
waived it. See Powell v. Sellers, 130 Idaho 122, 128, 937 P.2d 434, 440 (Ct. App. 1997).
10
closing argument on a client’s behalf does not, by itself, constitute ineffective assistance of
counsel. See Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir. 2000) (observing that the waiver of
opening or closing is a “commonly adopted strategy”). If waiving closing argument entirely
does not, by itself, constitute ineffective assistance, neither does the brevity of closing argument.
Pomrenke does not proffer an alternative closing argument that trial counsel should have given
based on the evidence presented. Rather, Pomrenke’s assertions regarding the deficiencies in
trial counsel’s closing argument are premised on evidence that was not presented at trial.
Pomrenke’s counsel cannot be deficient for failing to argue evidence not presented or a defense
foreclosed by the trial court’s ruling. Cf. State v. Fee, 124 Idaho 170, 177, 857 P.2d 649, 656
(Ct. App. 1993) (observing that counsel need not make futile or needless objections).
Accordingly, Pomrenke has failed to show error in the summary dismissal of his claim that
counsel was ineffective based upon the brevity of his closing argument.
B. Presumption of Prejudice
As previously stated, to prevail on a claim of ineffective assistance of counsel, a
petitioner must generally show that his or her attorney’s performance was deficient and that he or
she was prejudiced by the deficiency. See Strickland, 466 U.S. at 687-88; Self, 145 Idaho at 580,
181 P.3d at 506. In limited circumstances, however, prejudice from deficient performance may
be presumed. See Florida v. Nixon, 543 U.S. 175, 190 (2004); Cronic, 466 U.S. at 658-62. The
United States Supreme Court has explained that prejudice might be presumed in “circumstances
that are so likely to prejudice the accused that the cost of litigating their effect in a particular case
is unjustified.” Cronic, 466 U.S. at 658. The Court articulated three such circumstances:
(1) where there is a “complete denial” of counsel at a critical stage of trial; (2) where “counsel
entirely fails to subject the prosecution’s case to meaningful adversarial testing”; and (3) where,
“although counsel is available to assist the accused during trial, the likelihood that any lawyer,
even a fully competent one, could provide effective assistance is so small that a presumption of
prejudice is appropriate.” Id. at 658-60; see also Bell v. Cone, 535 U.S. 685, 686 (2002);
Workman v. State, 144 Idaho 518, 525-26, 164 P.3d 798, 805-06 (2007). To fall within the
second Cronic exception, as advocated by Pomrenke, trial counsel’s failure to test the
prosecution’s case must be complete. See Bell, 535 U.S. at 696-97. In other words, counsel
11
must have failed to oppose the prosecution throughout the proceeding--not merely at specific
points. See id.Pomrenke contends that summary dismissal of his petition was error because this “is one
of those rare cases where Cronic applies” and that he was entitled to judgment in his favor.
According to Pomrenke, the record establishes that trial counsel failed to subject the
prosecution’s case to meaningful adversarial testing. Pomrenke supports this argument by
pointing to many of the particularized deficiencies addressed above. Specifically, Pomrenke
alleges his trial counsel failed to subject the prosecution’s case to meaningful adversarial testing
when he:
1) reserved opening statement; 2) failed to attempt to establish a defense during
cross-examination of state witnesses; 3) did not call any witnesses, including
those on his witness lists to testify, in order to establish his involuntary
intoxication defense; 4) did not have Mr. Pomrenke testify; 5) did not seek an
unconscious act defense instruction; 6) failed to preserve his jury instruction
objection for appeal[ 7]; and 7) gave a one paragraph closing argument, consisting
of four sentences, none of which explained how Mr. Pomrenke could be found not
guilty.
In summarily dismissing Pomrenke’s petition for post-conviction relief, the district court noted
that the “State’s motion for summary dismissal addressed each of Pomrenke’s ineffective
assistance claims, essentially rebutting the Cronic argument.” Additionally, the district court
reasoned:
Here, Pomrenke’s trial counsel attempted to present an involuntary
intoxication defense. He made arguments and an offer of proof to support his
position. However, [the trial court] excluded the testimony of witnesses who
7
Pomrenke did not allege this particular deficiency in his petition. On appeal, the State
argues that Pomrenke failed to preserve this allegation and that there is no adverse ruling on it
from the district court. Pomrenke responds that the State misapprehends this allegation.
According to Pomrenke, the substance of this allegation is not that his trial counsel “did not
object to the trial court’s refusal to give [an involuntary intoxication] instruction” but, rather, that
his trial counsel “failed to present available evidence which would have provided a factual basis
for the trial court to give the instruction and appellate counsel to be able to raise a viable claim if
needed.” Interpreted this way, the allegation is, in essence, indistinguishable from Pomrenke’s
allegation that his trial counsel failed to call available witnesses to support the involuntary
intoxication defense. Because the State does not contend that Pomrenke failed to preserve or
obtain an adverse ruling regarding his counsel’s alleged failure to call available witnesses, we
will not address the State’s preservation arguments further.
12
supported this defense in a well-reasoned memorandum and order. So,
Pomrenke’s trial counsel did subject the case to adversarial testing, albeit
unsuccessfully. [Pomrenke’s counsel] also objected to certain graphic evidence
being presented in trial. There is insufficient evidence in this case to support a
finding that [Pomrenke’s counsel] was inadequately prepared, ignorant of the
relevant law, or had other shortcomings capable of objective evaluation. As noted
in headnote three of the Cronic decision, the “Sixth Amendment does not require
that counsel do what is impossible or unethical; if there is no bona fide defense to
a charge, counsel cannot create one and may disserve the interests of his client by
attempting a useless charade.” Cronic, 466 U.S. at 656-57.
Pomrenke asserts that the district court’s analysis is erroneous in two ways. First, he
argues, “there was a viable theory of defense which could have been presented.” Second, he
argues that, even if there was not a viable defense theory, his trial counsel’s performance still
falls within the second Cronic exception. Both arguments are unavailing.
Regarding Pomrenke’s first argument, he does not expressly state what “viable theory of
defense” his trial counsel could have presented. However, Pomrenke’s entire discussion of this
argument relates to alleged inadequacies in his trial counsel’s attempts to assert an involuntary
intoxication defense, reiterating the same arguments and evidence presented in support of his
Strickland claim. We have already concluded that these arguments and evidence were
insufficient to support an involuntary intoxication defense. In light of this, we cannot say that
the circumstances leading to this particular allegation of deficient performance were so egregious
as to effectively deny Pomrenke any meaningful assistance at all or create a situation so likely to
prejudice him that the cost of litigating the existence of prejudice is unjustified. Thus, the
allegation that Pomrenke’s trial counsel failed to present a viable defense cannot support a
presumption of prejudice under the second Cronic exception.
Pomrenke begins his second argument by pointing out that a footnote in Cronic observes
that counsel must “hold the prosecution to its heavy burden of proof beyond a reasonable doubt”
once a client decides to stand trial. Id. at 656 n.19. Pomrenke contends that, regardless of the
existence of another viable theory of defense, his trial counsel “did not even attempt to hold the
prosecution to its heavy burden of proof under Cronic.” Other than adding the allegation that his
trial counsel was deficient by failing to “attempt to establish a defense during cross-examination
of state witnesses,” however, Pomrenke only supports this contention by restating the arguments
13
he asserted to challenge the summary dismissal of his allegations of particularized deficient
performance by trial counsel.
We have already held that the district court correctly determined that Pomrenke did not
sufficiently support his allegations that trial counsel was deficient in his opening statement and
closing argument, in calling witnesses, or in requesting jury instructions on affirmative defenses.
The remaining unaddressed allegation of deficiency (i.e., inadequate cross-examination)
similarly lacks sufficient support. In addressing this allegation, the district court observed that
Pomrenke failed to “point to any alleged false testimony or to any specific questions or line of
questions that likely would have provided favorable responses.” Accordingly, the district court
summarily dismissed the allegation because Pomrenke failed “to demonstrate that trial counsel
was inadequately prepared, ignorant of relevant law, or had other shortcomings capable of
objective review” or “that cross-examination of a particular witness would have resulted in a
reasonable probability of a different result at trial.” Pomrenke does not argue that this
determination was error.
In light of the above, Pomrenke’s second argument is also unavailing. Pomrenke failed
to sufficiently support any of his allegations of deficient representation. Thus, we cannot say
that the district court erred in concluding that the State had “essentially rebut[ted]” Pomrenke’s
claim that his trial counsel failed to subject the prosecution’s case to meaningful adversarial
testing. Additionally, without a viable allegation of deficient representation, there is no basis to
conclude that Pomrenke was effectively denied any meaningful representation. Nor can we say
there were circumstances so likely to prejudice Pomrenke that the cost of litigating their effect in
a particular case is unjustified. See Cronic, 466 U.S. at 658. Pomrenke has failed to show that
the district court erred in summarily dismissing his petition for post-conviction relief.
IV.
CONCLUSION
Pomrenke has failed to show error in the summary dismissal of any of his ineffective
assistance of counsel claims. Accordingly, the district court’s judgment summarily dismissing
Pomrenke’s petition for post-conviction relief is affirmed.
Judge GRATTON and Judge BRAILSFORD, CONCUR.
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