Wagstaff v. State

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 48582
NATHAN DEAN WAGSTAFF, )
) Filed: July 5, 2022
Petitioner-Appellant, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
STATE OF IDAHO, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Respondent. )
)
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
Falls County. Hon. Benjamin J. Cluff, District Judge.
Judgment summarily dismissing petition for post-conviction relief, vacated; order
denying motion for appointment of counsel, reversed; and case remanded.
Nevin, Benjamin & McKay LLP; Dennis Benjamin, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.
________________________________________________
HUSKEY, Chief Judge
Nathan Dean Wagstaff appeals from the district court’s judgment summarily dismissing
his petition for post-conviction relief. Wagstaff asserts the petition alleged facts that raised the
possibility of a valid claim for post-conviction relief; therefore, the district court erred in
dismissing the petition for post-conviction relief and denying Wagstaff’s motion for the
appointment of counsel. For the reasons set forth below, we vacate the judgment dismissing the
petition for post-conviction relief, reverse the order denying the motion for appointment of
counsel, and remand the case for further proceedings.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Wagstaff pled guilty to felony driving under the influence, and the district court imposed a
unified sentence of ten years, with three years determinate. State v. Wagstaff, Docket No. 47880
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(Ct. App. Nov. 4, 2020) (unpublished). Subsequently, Wagstaff filed a motion for the appointment
of counsel and a petition for post-conviction relief. Wagstaff alleged various claims for relief,
including a claim that his trial counsel was ineffective for failing to file an appeal. Wagstaff also
alleged that he filed his own appeal and it was dismissed as untimely.
The district court entered a notice of intent to dismiss the petition, wherein it concluded
Wagstaff’s allegation that trial counsel was ineffective for not filing an appeal was conclusory and
contained no verified facts demonstrating that trial counsel’s representation fell below a reasonable
standard of competency. The district court denied Wagstaff’s motion for the appointment of
counsel, finding the claims in the petition to be frivolous.
Wagstaff responded to the notice of intent to dismiss with an affidavit containing various
exhibits. Included was a letter written by Wagstaff addressed to his trial counsel which stated,
“have you filed an Appeal yet?”; “I need to talk with you Imediately [sic] and file an Appeal”; “42
days are running for the Appeal”; and “So please file Appeal and Habeas Corpus.”
The district court dismissed Wagstaff’s petition for post-conviction relief and denied
Wagstaff’s renewed request for appointed counsel. Wagstaff timely appealed.
II.
STANDARD OF REVIEW
If a post-conviction petitioner is unable to pay for the expenses of representation, the trial
court may appoint counsel to represent the petitioner in preparing the petition in the trial court and
on appeal. I.C. § 19-4904. The decision to grant or deny a request for court-appointed counsel
lies within the discretion of the district court. Grant v. State, 156 Idaho 598, 603, 329 P.3d 380,
385 (Ct. App. 2014). When a district court is presented with a request for appointed counsel, the
court must address this request before ruling on the substantive issues in the case. Id. The district
court abuses its discretion where it fails to determine whether a petitioner for post-conviction relief
is entitled to court-appointed counsel before denying the petition on the merits. Id.III.
ANALYSIS
Wagstaff asserts the district court erred by denying his motion to appoint counsel and
dismissing his claim of ineffective assistance of counsel, which was based on an allegation that
trial counsel failed to file a notice of appeal. The State concedes the district court erred in denying
Wagstaff’s motion for the appointment of counsel because Wagstaff’s petition, coupled with the
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letter included in his affidavit, alleged facts that may have developed into a viable claim with the
assistance of counsel. The State requests this Court reverse the district court’s order denying
counsel and appoint counsel for further proceedings on the claim of ineffective assistance of
counsel only.
In determining whether to appoint counsel pursuant to Idaho Code § 19-4904, the district
court should determine if the petitioner is able to afford counsel and whether the situation is one
in which counsel should be appointed to assist the petitioner. Grant, 156 Idaho at 603, 329 P.3d
at 385. In its analysis, the district court should consider that petitions filed by a pro se petitioner
may be conclusory and incomplete. Id. Facts sufficient to state a claim may not be alleged because
they do not exist or because the pro se petitioner does not know the essential elements of a claim.
Id. Some claims are so patently frivolous that they could not be developed into viable claims even
with the assistance of counsel. Newman v. State, 140 Idaho 491, 493, 95 P.3d 642, 644 (Ct. App.
2004). However, if a petitioner alleges facts that raise the possibility of a valid claim, the district
court should appoint counsel in order to give the petitioner an opportunity to work with counsel
and properly allege the necessary supporting facts. Grant, 156 Idaho at 603, 329 P.3d at 385.
When a defendant has expressly requested an appeal, counsel performs deficiently by
disregarding the defendant’s instruction. Garza v. Idaho, 139 S. Ct. 738, 746 (2019). In the letter
attached to Wagstaff’s affidavit, Wagstaff expressly requested his trial counsel file an appeal, and
Wagstaff alleged counsel did not do so. Wagstaff demonstrated the possibility of a valid claim of
ineffective assistance of counsel under Garza, and the district court should have appointed counsel
in order to give Wagstaff an opportunity to have counsel assist him in properly presenting the
claim. Charboneau v. State, 140 Idaho 789, 793, 102 P.3d 1108, 1112 (2004). Accordingly, the
district court erred in denying the motion for appointment of counsel and summarily dismissing
the petition for post-conviction relief.
The State argues that on remand, counsel should be appointed to pursue only the ineffective
assistance of counsel claim. Wagstaff asserts this Court should vacate the order dismissing the
petition and appoint counsel without limitation.
The Idaho Supreme Court recently addressed the issue of limiting the scope of appointed
post-conviction counsel in Jimenez v. State, ___Idaho ___, ___ P.3d___ (May 26, 2022).1 There,
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We recognize the Jimenez opinion was issued after the State filed its brief in this case.
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Jimenez filed a pro se petition for post-conviction relief and requested that counsel be appointed
to represent him. Id. at ___, ___ P.3d at ___. The district court appointed an attorney to represent
Jimenez, but limited the scope of representation to a single claim. Id. at ___, ___ P.3d at ___. On
appeal, the Court ruled that limiting the scope of appointed counsel’s representation to only a
single claim, rather than to representation in the entire proceeding, is contrary to the applicable
standard for the appointment of counsel in post-conviction cases articulated in I.C. § 19-4904;
contrary to the Court’s admonition in Charboneau, 140 Idaho at 792, 102 P.3d at 1111, that trial
courts remain mindful of the difficulties faced by pro se petitioners; and contrary to the Court’s
decision in Ward v. State, 166 Idaho 330, 458 P.3d 199 (2020). Jiminez, ___Idaho at ___, ___
P.3d at ___. Jimenez makes clear that once the district court determines that the appointment of
counsel is appropriate, it is error for a court to limit the scope of the appointment of post-conviction
counsel to anything less than representation in the entire post-conviction proceeding. Thus, on
remand, the district court must appoint counsel to represent Wagstaff on his post-conviction
petition without limitation.
IV.
CONCLUSION
The district court erred by denying Wagstaff’s motion for the appointment of counsel and
summarily dismissing the petition for post-conviction relief. Accordingly, we reverse the district
court’s order denying the motion for appointment of counsel, vacate the judgment dismissing the
petition for post-conviction relief, and remand the case for further proceedings consistent with this
opinion.
Chief Judge LORELLO and Judge BRAILSFORD CONCUR.
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