Jeffrey Dane Murray v. State

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 39400
JEFFREY DANE MURRAY, )
) Boise, January 2014 Term
Petitioner-Appellant, )
) 2014 Opinion No. 31
v. )
) Filed: March 19, 2014
STATE OF IDAHO, )
) Stephen Kenyon, Clerk
Respondent. )
Appeal from the District Court of the Fourth Judicial District of the State of
Idaho, Ada County. Hon. Deborah A. Bail, District Judge.
The district court’s dismissal of Murray’s petition for post-conviction relief
is affirmed.
Sara B. Thomas, State Appellate Public Defender, Boise, for appellant. Spencer
Hahn argued.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Jessica
Lorello argued.
_______________________________________________
HORTON, Justice.
Jeffrey Dane Murray appeals from the district court’s order dismissing his petition for
post-conviction relief after he pleaded guilty to felony domestic violence and was sentenced to
three years fixed followed by seven years indeterminate. Murray’s petition for post-conviction
relief argued, among other things, that his trial counsel was constitutionally ineffective–an
argument that he reasserts now on appeal. We affirm the district court’s dismissal of Murray’s
petition for post-conviction relief.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 1, 2009, Murray was charged with felony attempted strangulation and
misdemeanor battery. Subsequently, the district court held a pretrial conference on July 13, 2009.
At the hearing, the State and Murray’s trial counsel, Jared Martens, entered into plea
negotiations. After a short discussion, Martens represented to the court that the parties had
reached an agreement. Under the parties’ agreement, Murray agreed to plead guilty to a felony
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charge of domestic violence and to submit to a domestic violence evaluation. In exchange, the
State agreed to dismiss a felony charge of attempted strangulation and a misdemeanor charge of
battery and recommend a sentence of three years fixed followed by seven years indeterminate,
suspended, and 120 days in jail. After hearing the parties’ proposed agreement, the district judge
questioned the parties:
The Court: Okay, is there an Estrada waiver?
Ms. Buttram: I believe so.
The Court: Well, I think there would have to be. I am not going to [accept the
plea agreement] without an Estrada waiver.
Mr. Martens: Just a moment, let me talk to the prosecutor.
(Brief delay.)
Mr. Martens: Yes, that’s fine. He will waive, Your Honor.
The Court: Is that what you want to do, Mr. Murray?
The Defendant: Yes, ma’am.
The district court then took a recess to allow Murray to complete the court’s Guilty Plea
Advisory Form. Murray, with the help of Martens, then executed the Guilty Plea Advisory Form.
The Guilty Plea Advisory Form signed by Murray expressly references the rights outlined
by this Court in Estrada v. State, 143 Idaho 558, 149 P.3d 833 (2006), stating:
I understand that by pleading guilty I am waiving my right to remain silent
about the charge I am pleading guilty to both before and after trial.
The waiver of your right to remain silent only applies to your plea of
guilty to the crimes(s) in this case unless you are waiving your rights under State
v. Estrada [sic]. Unless you waive your rights under Estrada, even after pleading
guilty, you will still have the right to refuse to answer any question or to provide
any information that might tend to show you committed some other crime(s). You
can also refuse to answer or provide information that might tend to increase the
punishment for the crime(s) to which you are pleading.
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I understand that by pleading guilty to the crimes(s) in this case, I still
have the right to remain silent with respect to any other crimes(s) and with respect
to answering questions or providing information that may increase my sentence.
Murray initialed each of the above paragraphs, “J.M.” on the Guilty Plea Advisory Form. The
Guilty Plea Advisory Form also stated:
I understand that my plea agreement is a non-binding plea agreement. This means
that the court is not bound by the agreement or any sentencing recommendations,
and may impose any sentence authorized by the law, up to the maximum sentence
for any offense.
After the Guilty Plea Advisory Form was executed, the court reconvened. The court
asked Martens, “You went over the guilty plea advisory form with [Murray]?” Martens
responded, “[Y]es, we just did.” The court then questioned Murray about his decision to plead
guilty:
[The Court]: Have you had any trouble understanding your lawyer?
[Murray]: No, ma’am.
….
[The Court]: Did he tell you to your satisfaction what your rights and defenses
are?
[Murray]: Yes, ma’am.
….
[The Court]: And you understand that you are giving up your rights under State
versus Estrada, and that means that you cannot refuse to answer any question or
provide any information that might tend to show you committed some other
crime? You need to talk freely and openly with the presentence investigator and
with any domestic violence evaluator about any problems that you might have
that might have a bearing upon sentencing.
[Murray]: Yes, ma’am.
[The Court]: And you are aware of that?
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[Murray]: Yes, ma’am.
Thereafter, the district court accepted Murray’s guilty plea and ordered a domestic violence
evaluation.
Murray’s sentencing hearing was held on September 8, 2009. Based on Murray’s
domestic violence evaluation and his presentence report, the district court found that Murray was
not manageable on probation and that he presented a high risk of re-offense. Because the district
court did not feel that the recommended sentence adequately protected society, it chose not to
follow the State’s recommendation and instead sentenced Murray to prison for ten years, with
three years fixed. Murray did not appeal his sentence. Instead, he filed a motion to reduce his
sentence pursuant to I.C.R. 35. The district court denied this motion. Murray appealed the district
court’s denial of his I.C.R. 35 motion to the Idaho Court of Appeals, which affirmed the district
court. See State v. Murray, No. 37482, 2010 WL 9590129 (Ct. App. Nov. 1, 2010).
On October 27, 2010, Murray filed a petition for post-conviction relief. In his petition,
Murray argued that his guilty plea should be vacated because: (1) it was not knowing, voluntary,
and intelligent; (2) his counsel at the plea and sentencing hearings was constitutionally
ineffective; and, (3) his counsel during post-trial proceedings was constitutionally ineffective. An
evidentiary hearing on Murray’s petition was held on May 31, 2011. At the hearing, Murray
stated that had he known that the domestic violence evaluation could be used to increase his
sentence he would have “discussed it with an attorney at the time [and] probably would have not
taken it or received my own personal evaluation.” The district court issued its decision on
October 20, 2011, and dismissed Murray’s petition after concluding that Murray failed to meet
his burden to show that he was entitled to post-conviction relief.
On November 11, 2011, Murray filed his notice of appeal from the district court’s
dismissal of his petition for post-conviction relief pursuant to I.A.R. 11(a)(1). On December 11,
2013, this Court conditionally dismissed this appeal because the decision of the district court was
not a final, appealable judgment, as contemplated by I.R.C.P. 54(a). However, on December 17,
2013, the district court entered its Judgment Nunc Pro Tunc, effective October 20, 2011,
dismissing Murray’s petition for post-conviction relief with prejudice and this Court reinstated
Murray’s appeal.
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II. STANDARD OF REVIEW
“Post-conviction proceedings are civil in nature and therefore the applicant’s allegations
must be proven by a preponderance of the evidence.” McKeeth v. State, 140 Idaho 847, 849, 103
P.3d 460, 462 (2004) (citing McKinney v. State, 133 Idaho 695, 699–700, 992 P.2d 144, 148–49
(1999)). “When appellate review of a district court’s denial of post-conviction relief follows an
evidentiary hearing, rather than a summary dismissal, the evidence must be ‘viewed most
favorably to the trial court’s findings.’ ” Id. (quoting State v. Mathews, 133 Idaho 300, 304, 986
P.2d 323, 327 (1999)). On review, “this Court will not disturb the district court’s factual findings
unless they are clearly erroneous.” McKinney, 133 Idaho at 700, 992 P.2d at 149 (citing I.R.C.P.
52(a)). However, “[t]his Court exercises free review of the district court’s application of the
relevant law to the facts.” McKeeth, 140 Idaho at 849–50, 103 P.3d at 462–63. “If a district court
reaches the correct result by an erroneous theory, this Court will affirm the order upon the
correct theory.” McKinney, 133 Idaho at 700, 992 P.2d at 149. Additionally, “[c]onstitutional
issues are pure questions of law over which this Court exercises free review.” Estrada, 143 Idaho
at 561, 149 P.3d at 836 (citing Quinlan v. Idaho Comm’n for Pardons & Parole, 138 Idaho 726,
729, 69 P.3d 146, 149 (2003)).
III. ANALYSIS
Murray argues that the district court erred in dismissing his petition for post-conviction
relief because Martens’ representation was constitutionally ineffective for two reasons. First,
Murray argues that Martens was ineffective in failing to advise him of his rights under Estrada
and whether to waive those rights. Second, Murray argues that Martens was ineffective in failing
to advise him that he could obtain a private confidential domestic violence evaluation prior to
accepting the State’s plea offer.
“The right to counsel in criminal actions brought by the state of Idaho is guaranteed by
the Sixth Amendment to the United States Constitution and Article 1, Section 13 of the Idaho
State Constitution.” Booth v. State, 151 Idaho 612, 617, 262 P.3d 255, 260 (2011) (quoting
McKay v. State, 148 Idaho 567, 570, 225 P.3d 700, 703 (2010)). “[T]he right to counsel is the
right to the effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984)
(quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). A defendant’s constitutional
right to counsel only extends to the “critical stages” of proceedings. United States v. Wade, 388
U.S. 218, 224–25 (1967). “It therefore follows that, if the stage is not critical, there can be no
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constitutional violation, no matter how deficient counsel’s performance.” United States v.
Benlian, 63 F.3d 824, 827 (9th Cir. 1995). “Before deciding whether to plead guilty, a defendant
is entitled to ‘the effective assistance of competent counsel.’ ” Padilla v. Kentucky, 559 U.S. 356,
364 (2010) (quoting McMann, 397 U.S. at 771).
This Court applies the two-prong Strickland test to determine if a defendant has received
ineffective assistance of counsel during the plea process. Booth, 151 Idaho at 617, 262 P.3d at
260. Under Strickland, “[t]o prevail on an ineffective assistance of counsel claim, the defendant
must show that the attorney’s performance was deficient and that the defendant was prejudiced
by the deficiency.” Id. “To prove deficient performance, the appellant ‘must show the attorney’s
representation fell below an objective standard of reasonableness.’ ” State v. Dunlap, 155 Idaho
345, __, 313 P.3d 1, 39 (2013) (quoting Dunlap v. State, 141 Idaho 50, 59, 106 P.3d 376, 385
(2004)). “To demonstrate prejudice, the appellant ‘must show a reasonable probability that, but
for the attorney’s deficient performance, the outcome of the trial would have been different.’ ”
Id. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Cullen v. Pinholster, 563 U.S. __, __, 131 S. Ct. 1388, 1403 (2011) (quoting
Strickland, 466 U.S. at 694). To undermine confidence in the outcome “requires a ‘substantial,’
not just ‘conceivable,’ likelihood of a different result.” Id. (quoting Harrington v. Richter, 562
U.S. __, __, 131 S. Ct. 770, 791 (2011)). Additionally, “[w]hen a defendant alleges some
deficiency in counsel’s advice regarding a guilty plea, the defendant must demonstrate that ‘there
is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.’ ” Booth, 151 Idaho at 621, 262 P.3d at 264 (quoting
Ridgley v. State, 148 Idaho 671, 676, 227 P.3d 925, 930 (2010)). Under the Strickland standard,
counsel is “strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” 466 U.S. at 690.
A. The district court did not err in dismissing Murray’s petition for post-conviction relief
because Murray failed to show, by a preponderance of the evidence, that Martens’
representation constituted ineffective assistance of counsel.
The district court addressed Murray’s argument that Martens was ineffective in failing to
advise him of his Fifth Amendment right against self-incrimination during a domestic violence
evaluation. Relying on Gonzales v. State, 151 Idaho 168, 254 P.3d 69 (Ct. App. 2011), the
district court concluded that although Martens did not advise Murray of his rights under Estrada,
he was not constitutionally ineffective because the court advised Murray of his Estrada rights
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prior to Murray pleading guilty and participating in the court-ordered evaluation. Thus, Martens
was not required to advise Murray of his Estrada rights again.
On appeal, Murray raises the same argument, and asserts that the district court erred in
dismissing his petition for post-conviction relief because Martens was ineffective. Murray argues
that Martens’ representation was deficient in failing to advise him of his Estrada rights and that
he was prejudiced by this because he then participated in a damaging court-ordered domestic
violence evaluation. Murray concedes that the district court properly applied Gonzales. However,
Murray argues that the Court of Appeals’ decision in Gonzales should be reversed by this Court
because it improperly diminished the right to the advice of counsel regarding participation in a
court-ordered evaluation established in Estrada.
Careful consideration of this Court’s opinion in Estrada and the Idaho Court of Appeals’
decision in Gonzales is required to resolve Murray’s claims. The defendant in Estrada pleaded
guilty to rape, the court advised him that he was waiving his right against self-incrimination, and
ordered him to participate in a psychosexual evaluation pursuant to Idaho Code section 18–8316.
143 Idaho at 560, 149 P.3d at 835. Relying in part on the psychosexual evaluation, which
indicated that Estrada had an extremely violent nature and a low level of treatment motivation,
the court imposed a life sentence with twenty-five years fixed. Id. Estrada filed a petition for
post-conviction relief claiming ineffective assistance of counsel and argued that his attorney
should have advised him that, even after pleading guilty, he retained his right against self-
incrimination and was not required to participate in the psychosexual evaluation. Id. On appeal
from the denial of Estrada’s petition, this Court held that participation in a psychosexual exam
constituted a critical stage of proceedings and “that a defendant has a Sixth Amendment right to
counsel regarding only the decision of whether to submit to a psychosexual exam” but not the
actual presence of counsel at the examination. 1 Id. at 562–63, 149 P.3d 837–38. Adopting a
broad definition of “incrimination,” 2 we also held that Estrada could assert his Fifth Amendment
right against self-incrimination during his evaluation. Id. at 564, 149 P.3d at 839. Applying
Strickland, this Court then held that Estrada’s counsel was deficient in failing to inform Estrada
of his right to assert the privilege against self-incrimination during his psychosexual evaluation
1
“Estrada limits its holding to the advice of counsel prior to participating in the investigation.” State v. Draper, 151
Idaho 576, 597, 261 P.3d 853, 874 (2011).
2
“Incrimination is implicated not just when additional charges could be filed, but also when punishment could be
enhanced as a result of the defendant’s statements.” Estrada, 143 Idaho at 564, 149 P.3d at 839.
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and that the deficiency resulted in prejudice because the district court relied on the evaluation in
sentencing Estrada. Id. at 564–65, 149 P.3d 839–40. In sum, Estrada “held that a psychosexual
evaluation is a critical stage of a criminal prosecution such that the defendant has a Sixth
Amendment right to the advice of counsel about whether to undergo an evaluation and a Fifth
Amendment right to refuse to participate in the evaluation.” Meier v. Smith, No. 1:10-cv-00351-
BLW, 2011 WL 3837295, at *3 (D. Idaho Aug. 29, 2011).
The scope of a defendant’s right to the advice of counsel articulated by Estrada was
addressed by the Idaho Court of Appeals in Gonzales. Like the defendant in Estrada, the
defendant in Gonzales was ordered by the sentencing court to undergo a psychosexual
evaluation. 151 Idaho at 170, 254 P.3d at 71. However, unlike the defendant in Estrada, the
district court in Gonzales informed the defendant that he retained his right to remain silent during
the evaluation and could say nothing at all during the evaluation if he wished. Id. at 172, 254
P.3d at 73. On appeal to the Idaho Court of Appeals from a denial of his petition for post-
conviction relief, Gonzales argued that his counsel was ineffective for failing to advise him of his
Estrada rights. Id. In Gonzales, the Court of Appeals properly interpreted this Court’s holding in
Estrada stating, “[t]he right to counsel prior to a psychosexual evaluation extends only to advice
regarding the defendant’s decision whether to submit to the evaluation. Such advice requires
counsel to inform the defendant of his or her Fifth Amendment right to remain silent as to the
psychosexual evaluation.” Id. at 173, 254 P.3d at 74 (internal citation omitted).
The Gonzales court held that the requirements of Estrada could be fulfilled by the
sentencing court. In so holding, the Court of Appeals stated that “[w]hile it is preferable for
counsel to advise a defendant of his right to remain silent … counsel may not be deficient for
failing to readvise the defendant once the sentencing court has done so.” Id. It is this portion of
Gonzales that Murray asks the Court to overrule in this case because Murray asserts that a
court’s statements concerning a defendant’s Estrada rights are not the functional equivalent of an
attorney’s advice. We agree in part with Murray, as discussed below.
1. Martens’ failure to advise Murray of his Estrada rights does not constitute
ineffective assistance of counsel.
a. The district court erred in holding that Martens’ representation of
Murray was not deficient.
In this case, the district court found that “[t]here is no question that [Murray’s] counsel
did not advise him of his right to remain silent at the domestic violence evaluation as required by
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Estrada v. State … nor did he discuss the consequences of waiving that right. However, there is
also no question that the Court did advise him of these rights in page one of the Guilty Plea
Advisory Form.” Page one of the Guilty Plea Form provided:
I understand that by pleading guilty I am waiving my right to remain silent
about the charge I am pleading guilty to both before and after trial. The waiver of
your right to remain silent only applies to your plea of guilty to the crimes(s) in
this case unless you are waiving your rights under State v. Estrada [sic]. Unless
you waive your rights under Estrada, even after pleading guilty, you will still have
the right to refuse to answer any question or to provide any information that might
tend to show you committed some other crime(s). You can also refuse to answer
or provide information that might tend to increase the punishment for the crime(s)
to which you are pleading.
The above paragraph was initialed by Murray, indicating that he read and understood its content.
Based on the text of the Guilty Plea Advisory Form and the Court of Appeals’ decision in
Gonzales, the district court concluded that Murray’s counsel was not ineffective in this case.
Specifically, the district court stated that because the court had informed Murray of his Estrada
rights his counsel was not required to do so again. This was an error because the district court’s
actions in informing Murray of his Estrada rights do not affect the Court’s analysis under the
deficiency prong of Strickland. This is because the district court’s conduct in informing Murray
of his Estrada rights did not eliminate Martens’ obligation to inform Murray of his rights. In
Estrada, we clearly held that “Estrada’s attorney was deficient in failing to inform his client of
[his Fifth Amendment right against self-incrimination].” 143 Idaho at 564, 149 P.3d at 839. Like
Estrada’s counsel, Murray’s counsel also failed to inform him that he retained his Fifth
Amendment right against self-incrimination during his court-ordered domestic violence
evaluation. Accordingly, this Court finds that Martens, in failing to apprise Murray of his
Estrada rights, was objectively deficient, despite the district court’s efforts to inform Murray of
his Estrada rights and the consequences of waiving his rights. Therefore, the district court’s
reliance on Gonzales for the proposition that “counsel may not be deficient for failing to readvise
the defendant once the sentencing court has done so” was erroneous.
b. Murray was not prejudiced by Martens’ deficiency because Murray was
properly apprised of his Estrada rights by the district court.
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Unlike the deficiency prong of Strickland, which focuses purely on counsel’s conduct, the
district court’s efforts to inform Murray of his Estrada rights bear on the prejudice prong of
Strickland. In this case, the district court ensured that Murray was properly apprised of, and
understood, his Estrada rights, as well as the consequences of waiving his Estrada rights. At
Murray’s guilty plea hearing, the parties, on the record, indicated to the court that they had
reached a plea agreement. After presenting the terms of the agreement to the court, the district
judge asked “is there an Estrada waiver …. I think there would have to be. I’m not going to take
[the plea agreement] without an Estrada waiver.” After a brief delay for discussion among the
parties, Murray’s counsel indicated, on the record, that Murray agreed to waive his Estrada
rights. When asked by the court, Murray reiterated that he wished to waive his Estrada rights.
This discourse gave Murray notice that his Estrada rights were at issue and would be waived if
he chose to proceed with the plea agreement.
Because the parties had not completed the district court’s Guilty Plea Advisory Form, the
court took a recess so that Murray could read and complete the court’s form before formally
pleading guilty. The Guilty Plea Advisory Form, as referenced above, specifically addressed
Estrada, and properly conveyed that:
Unless you waive your rights under Estrada, even after pleading guilty, you will
still have the right to refuse to answer any question or to provide any information
that might tend to show you committed … other crime(s) …. [O]r … that might
tend to increase the punishment for the crime(s) to which you are pleading.
Murray affirmatively indicated, by initialing the Guilty Plea Advisory Form, that he understood
his rights under Estrada, with respect to answering questions that could potentially increase his
sentence. After Murray completed the Guilty Plea Advisory Form, the court returned from its
recess and the district judge asked Murray if he went over the Guilty Plea Advisory Form with
his attorney, to which he responded, “[y]es, ma’am.” The court then asked Murray if he
understood that in pleading guilty in this specific case he was also waiving his rights under
Estrada by the terms of the plea agreement. 3 Murray indicated that he was aware and that he
understood that he was waiving his Estrada rights under the terms of the plea agreement. 4
3
The Guilty Plea Advisory Form specifically stated that one of the terms of the plea agreement was “DV Eval +
comply.”
4
A defendant may waive constitutional rights “if the entire record shows the waiver was made voluntarily,
knowingly, and intelligently.” State v. Cope, 142 Idaho 492, 496, 129 P.3d 1241, 1245 (2006).
10
After being fully informed of his Estrada rights, and despite the court’s requirement that
he waive his Estrada rights and fully comply with the court ordered domestic violence
evaluation, Murray still pleaded guilty. The record conclusively establishes that Murray
understood his rights under Estrada and was aware that in order for the court to accept the
parties’ plea agreement he would have to waive his Estrada rights. Because the record
establishes that Murray fully understood his Estrada rights and voluntarily waived them, Murray
has failed to meet the Pinholster standard by demonstrating a substantial likelihood of different
result in this case had Martens’ representation not been deficient. Furthermore, under this
Court’s decision in Booth, Murray has also failed to demonstrate that “there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.” 151 Idaho 612, 621, 262 P.3d 255, 264 (2011) (quoting Ridgley v.
State, 148 Idaho 671, 676, 227 P.3d 925, 930 (2010)). Accordingly, Murray has failed to show
the requisite prejudice necessary to establish an ineffective assistance of counsel claim under
Strickland.
2. Murray has waived his argument that Martens was ineffective in failing to
inform him of his right to a confidential evaluation because Murray has not
offered any law or authority to establish that Martens’ representation was
constitutionally deficient.
The district court addressed Murray’s argument that Martens was ineffective because he
failed to advise Murray that he could obtain a confidential domestic violence evaluation before
he pleaded guilty and participated in the domestic violence evaluation. Again, the district court
relied on Gonzales, stating “the Court of Appeals held that there was no obligation to obtain a
confidential defense evaluation to inform the defense decision to participate in a court-ordered
evaluation and that the failure to do so was not ineffective assistance of counsel.” Accordingly,
the district court held that Murray failed to show that Martens was ineffective in failing to inform
Murray of his ability to participate in a confidential domestic violence evaluation prior to
pleading guilty.
On appeal, Murray argues that the district court erred in dismissing his petition for post-
conviction relief because Martens was ineffective in failing to inform him of his right to obtain a
confidential domestic violence evaluation prior to pleading guilty. Further, Murray argues that
Martens’ failure constituted deficient performance and prejudiced him by causing him to plead
guilty and submit to an evaluation that ultimately proved detrimental.
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In response, the State argues that Martens was not deficient in failing to advise Murray
that he could obtain a confidential evaluation prior to pleading guilty pursuant to the State’s
offer. Additionally, the State contends that Murray has failed to provide any authority for the
proposition that trial counsel is deficient for failing to advise a client of their ability to seek a
confidential evaluation prior to pleading guilty; the State is correct.
Like any issue raised on appeal, an appellant asserting that his trial counsel was
ineffective must support his argument with propositions of law, authority, and argument,
otherwise it will not be considered. State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970
(1996). “A party waives an issue cited on appeal if either authority or argument is lacking, not
just if both are lacking.” State v. Wood, 132 Idaho 88, 94, 967 P.2d 702, 708 (1998) (quoting
Zichko, 129 Idaho at 263, 923 P.2d at 970).
In this case, although Murray has provided argument that his counsel was deficient in
failing to inform him of his ability to obtain a confidential domestic violence evaluation prior to
pleading guilty, he has not provided a single authority or legal proposition to support his
argument. Murray merely states, without support, that his counsel’s failure to advise him of his
ability to undergo a confidential evaluation “represented deficient performance.”
As noted above, in order “[t]o prove deficient performance, the appellant ‘must show the
attorney’s representation fell below an objective standard of reasonableness.’ ” State v. Dunlap,
155 Idaho 345, __, 313 P.3d 1, 39 (2013) (quoting Dunlap v. State, 141 Idaho 50, 59, 106 P.3d
376, 385 (2004)). Murray has not offered any authority whatsoever, nor has this Court
discovered any authority, suggesting that failing to inform a client of their ability to seek a
confidential evaluation prior to pleading guilty falls below an objective standard of
reasonableness. Accordingly, Murray has waived his ineffective assistance of counsel claim
predicated on Martens’ failure to inform Murray of his right to seek a confidential evaluation
prior to pleading guilty.
IV. CONCLUSION
We affirm the district court’s dismissal of Murray’s petition for post-conviction relief and
award costs on appeal to the State.
Chief Justice BURDICK and Justices EISMANN, J. JONES and W. JONES CONCUR.
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