                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 38308

DARREL WYATT MORRIS,                               )     2012 Unpublished Opinion No. 488
                                                   )
          Petitioner-Appellant,                    )     Filed: May 23, 2012
                                                   )
v.                                                 )     Stephen W. Kenyon, Clerk
                                                   )
STATE OF IDAHO,                                    )     THIS IS AN UNPUBLISHED
                                                   )     OPINION AND SHALL NOT
          Respondent.                              )     BE CITED AS AUTHORITY
                                                   )

          Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
          County. Hon. Michael E. Wetherell, District Judge.

          Judgment summarily dismissing post-conviction petition, affirmed.

          Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
          Appellate Public Defender, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Rebekah A. Cudé, Deputy
          Attorney General, Boise, for respondent.
                    ________________________________________________
GUTIERREZ, Judge
          Darrel Wyatt Morris appeals from the district court’s judgment summarily dismissing his
petition for post-conviction relief. Specifically, Morris argues the district court erred in denying
his request for appointment of counsel because Morris raised the possibility of a valid claim. We
affirm.
                                                  I.
                                    FACTS AND PROCEDURE
          In 2008, Morris pled guilty to eluding an officer. While awaiting sentencing, Morris
committed the crime of felony driving under the influence (DUI). He pled guilty to the felony
DUI charge and the district court consolidated the two cases for purposes of sentencing. At
sentencing, the district court imposed a unified sentence of ten years, with three years
determinate, for the felony DUI conviction, and a unified sentence of five years, with three years
determinate, for the felony eluding an officer conviction, to be served consecutively. Morris



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directly appealed the judgments of conviction and sentences, which this Court affirmed in an
unpublished opinion. State v. Morris, Docket Nos. 35541/35542 (Ct. App. May 29, 2009).
       Thereafter, Morris filed a pro se petition for post-conviction relief, accompanied with a
request for appointment of counsel on the ground he was indigent and unable to afford an
attorney. As to the grounds for relief, Morris asserted four claims of ineffective assistance of
trial counsel: (1) trial counsel did not effectively present mitigating evidence at sentencing;
(2) trial counsel did not object to various issues; (3) trial counsel promised the case would be
transferred to mental health court and Morris would receive probation if Morris pled guilty; and
(4) Morris was under the influence of mood stabilizing medications during criminal proceedings
and was unable to assist in his defense. Morris supported these assertions with an affidavit.
       The district court denied the request for counsel, finding Morris’s claims were so patently
frivolous they could not be developed into viable claims, even with assistance of counsel, and
issued a notice of its intent to dismiss. Morris responded by further elaborating on some of his
claims without including any additional affidavits or other admissible evidence. He contended
that trial counsel was ineffective at sentencing for failing to include evidence of his mental
health, presented through his doctor as a witness and other medical records that would have
contradicted the findings in the court-ordered mental health examination. Morris also alleged
trial counsel was ineffective for failing to object to the admission of the mental health
examination on the basis that it was administered by an Idaho Department of Health and Welfare
(DHW) counselor, and not a licensed physician, during a twenty-minute jail visit. As to the last
two claims, Morris asserted substantially the same facts as in the original petition without further
explanation.
       The district court, after considering Morris’s response, concluded the claims were still
patently frivolous in light of the numerous mental health records the court considered before
imposing sentence. Because it cited additional grounds for dismissal, the district court gave
Morris another twenty days to produce admissible evidence to support his claims. After four
months with no additional response, the district court summarily dismissed Morris’s petition for
post-conviction relief.   Morris appeals, challenging only the district court’s order denying
appointment of counsel.




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                                                  II.
                                           DISCUSSION
A.     Appointment of Counsel in Post-Conviction Proceedings
       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.      Idaho Code § 19-4904.         The decision to grant or deny a request for
court-appointed counsel lies within the discretion of the district court. Charboneau v. State, 140
Idaho 789, 792, 102 P.3d 1108, 1111 (2004). 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.; Fox v. State, 129 Idaho 881, 885, 934 P.2d 947, 951 (Ct. App. 1997). 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.
See Charboneau, 140 Idaho at 793, 102 P.3d at 1112.
       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. Charboneau, 140 Idaho at 793,
102 P.3d at 1112. In its analysis, the district court should consider that petitions filed by a pro se
petitioner may be conclusory and incomplete. See id. at 792-93, 102 P.3d at 1111-12. 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. Charboneau, 140 Idaho at 793, 102 P.3d at 1112.
B.     Whether Morris Raised the Possibility of a Viable Claim
       Though Morris argued four claims in his original petition for post-conviction relief, on
appeal, he asserts he alleged facts that raised the possibility of a valid claim only with respect to
trial counsel’s ineffective assistance at sentencing by failing to object to the admission of the
mental health examination.      Morris argues, first, that counsel should have objected to the
examination because it failed to meet statutory requirements and, second, had counsel done so,


                                                  3
Morris would have received a greatly reduced sentence. The State argues that Morris failed to
show that the mental health examination was objectionable or that he was prejudiced by the
alleged ineffective assistance of counsel and, therefore, Morris did not raise the possibility of a
valid claim.
       In looking at whether a petitioner alleges facts that raise the possibility of a valid claim,
which would support an appointment of counsel, all inferences must run in favor of the
petitioner. Melton v. State, 148 Idaho 339, 342, 223 P.3d 281, 284 (2009). Whether an issue is
possibly a valid claim is determined by considering if the facts alleged are such that a reasonable
person with adequate means would be willing to retain counsel to conduct further investigation
into the claim. Swader v. State, 143 Idaho 651, 654-55, 152 P.3d 12, 15-16 (2007). “[A] pro se
petitioner may be unable to present sufficient facts showing that his or her counsel’s performance
was deficient or that such deficiency prejudiced the defense. That showing will often require the
assistance of someone trained in the law.” Id. Thus, a court’s consideration includes whether
the appointment of counsel would have assisted a petitioner in conducting an investigation into
facts not in the record. Melton, 148 Idaho at 342, 223 P.3d at 284. A question of whether the
petitioner meets the “possibility of a valid claim” standard for appointment of counsel is different
than a question about the potential success on the merit of the claims. Swader, 143 Idaho at 655,
152 P.3d at 16. The prior is a decidedly lower threshold. Judd v. State, 148 Idaho 22, 24, 218
P.3d 1, 3 (Ct. App. 2009).
       A claim of ineffective assistance of counsel may properly be brought under the Uniform
Post-Conviction Procedure Act. Barcella v. State, 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct.
App. 2009). To prevail on an ineffective assistance of counsel claim, the petitioner must show
that the attorney’s performance was deficient and that the defendant was prejudiced by the
deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Barcella, 148 Idaho at 477,
224 P.3d at 544. To establish a deficiency, the petitioner has the burden of showing that the
attorney’s representation fell below an objective standard of reasonableness. Gonzales v. State,
151 Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011). To establish prejudice, the petitioner must
show a reasonable probability that, but for the attorney’s deficient performance, the outcome of
the proceeding would have been different. Id. This Court has long adhered to the proposition
that tactical or strategic decisions of trial counsel will not be second-guessed on appeal unless
those decisions are based on inadequate preparation, ignorance of relevant law, or other


                                                 4
shortcomings capable of objective evaluation. Id. Even under the lower “possibility of a valid
claim” standard on review of a failure to appoint counsel, we consider whether the petitioner can
meet the two-part Stickland test where a petitioner alleges ineffective assistance of trial counsel.
See Gonzales, 151 Idaho at 172, 254 P.3d at 73 (applying the Strickland test on a challenge to a
denial of appointment of counsel where claims alleged ineffective assistance of counsel).
       1.      Whether the mental health examination met statutory requirements
       Morris asserts counsel should have objected to the mental health examination because the
examination failed to meet the requirements of Idaho Code § 19-2522 in two ways: (1) the
mental health examination was administered by a “counselor” with the DHW, not a licensed
physician; and (2) it was produced after a twenty-minute jail interview with no in-depth or
sufficient analysis. The State responds that the mental health examination was ordered pursuant
to Idaho Code § 19-2524, not section 19-2522, and by the clear language in the two statutes, the
section 19-2524 mental health examination does not need to meet the more stringent
requirements for a psychological evaluation under section 19-2522.
       This Court exercises free review over the application and construction of statutes. State
v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). Where the language of a
statute is plain and unambiguous, this Court must give effect to the statute as written, without
engaging in statutory construction. State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219
(1999); State v. Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The language of
the statute is to be given its plain, obvious, and rational meaning. Burnight, 132 Idaho at 659,
978 P.2d at 219. If the language is clear and unambiguous, there is no occasion for the court to
resort to legislative history or rules of statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d
at 67. When this Court must engage in statutory construction because an ambiguity exists, it has
the duty to ascertain the legislative intent and give effect to that intent. State v. Beard, 135 Idaho
641, 646, 22 P.3d 116, 121 (Ct. App. 2001). To ascertain such intent, not only must the literal
words of the statute be examined, but also the context of those words, the public policy behind
the statute, and its legislative history. Id. It is incumbent upon a court to give an ambiguous
statute an interpretation that will not render it a nullity. Id. Constructions of an ambiguous
statute that would lead to an absurd result are disfavored. State v. Doe, 140 Idaho 271, 275, 92
P.3d 521, 525 (2004).




                                                  5
               a.      Requirements for a mental health examiner under Idaho Code
                       § 19-2524
       We first address whether Morris’s mental health examination required a psychiatrist or
licensed psychologist. Section 19-2524, governing orders for mental health examinations and
substance abuse assessments, states in relevant part: “When a defendant has pled guilty to or
been found guilty of a felony, . . . the court, prior to the sentencing hearing . . . , may order the
defendant to undergo a substance abuse assessment and/or a mental health examination.” I.C.
§ 19-2524(1). Subsection (3)(b) of section 19-2524 provides the court authority to order a
second examination if, after receiving an initial examination under this section, the court needs
additional information to evaluate a defendant’s mental health or to determine an appropriate
plan of treatment. A second examination, ordered under this authority, must “be furnished by a
psychiatrist, licensed physician or licensed psychologist.”        I.C. § 19-2524(3)(b).      Section
19-2522, which governs assessments of a defendant’s mental condition, states in relevant part:
       If there is reason to believe the mental condition of the defendant will be a
       significant factor at sentencing and for good cause shown, the court shall appoint
       at least one (1) psychiatrist or licensed psychologist to examine and report upon
       the mental condition of the defendant. . . . The order appointing or requesting the
       designation of a psychiatrist or licensed psychologist shall specify the issues to be
       resolved for which the examiner is appointed or designated.
I.C. § 19-2522(1).
       Applying the statutes to the facts of this case, the plain language of the statutes dispels
Morris’s notion that his mental health examination failed to meet statutory requirements because
it was not administered by a psychiatrist or licensed physician. The record shows that the district
court ordered the mental health examination pursuant to section 19-2524. 1,      2
                                                                                     Accordingly, the


1
        The district court, at one point, did mention section 19-2522, but then corrected itself,
stating it was not ordering a psychological evaluation under section 19-2522, but rather a mental
health examination under section 19-2524.
2
        To the extent Morris argues we cannot rely on the record of the underlying criminal
proceedings related to sentencing in determining whether he raises the possibility of a valid
claim, we disagree. Morris is correct that the district court, in its decision not to appoint counsel,
did not take judicial notice of the criminal proceedings in the underlying case. Any reliance by
the district court on those proceedings, without judicial notice and based on its own recollections,
was error. Matthews v. State, 122 Idaho 801, 807-08, 839 P.2d 1215, 1221-22 (1992).
Nonetheless, the underlying criminal proceedings were judicially noticed for this appeal without
objection from Morris. Even without the judicially noticed records, we can still conclude

                                                  6
mental health examination was only subject to the provisions of section 19-2524, and the
language of that section contains no explicit requirements for the qualifications of the person
conducting an initial substance abuse assessment or mental health examination. It is only if a
second examination is ordered under section 19-2524 that a psychiatrist, licensed physician, or
licensed psychologist must furnish the examination.       I.C. § 19-2524(3)(b).   In contrast, a
psychological evaluation ordered under the authority in section 19-2522 must be conducted by a
psychiatrist or licensed psychologist in the first instance. By their very language, the statutes
provide authorization for examination/evaluation of a defendant under two different, although
related, circumstances. See State v. Hanson, 150 Idaho 729, 732-33, 249 P.3d 1184, 1187-88
(Ct. App. 2011) (noting section 19-2524 broadened a court’s sentencing options related to
treatment of mental health issues, and declining to apply a section 19-2522 standard for
psychological evaluation to a failure to order a section 19-2524 mental health examination).
Accordingly, Morris has not established that the evaluator’s credentials were inadequate under
statutory requirements, and we conclude Morris does not, therefore, show any deficiency of trial
counsel by failing to object to the examination on this ground.
               b.     Sufficiency of the mental health examination
       Next, we address whether a twenty-minute interview and resulting report was sufficient
to satisfy the statutory requirements for a section 19-2524 mental health examination. Sections
19-2522(3) and 19-2524(3)(a) each list requirements of what must be contained in a report under
those authorities. With the exception of one additional requirement under section 19-1524, 3 the




Morris’s argument is without merit. In its order denying appointment of counsel, the district
court simply stated Morris had not alleged or shown that the mental health examination failed to
meet statutory requirements. This conclusion is correct because Morris nowhere alleges that the
mental health examination was ordered pursuant to Idaho Code § 19-2522, yet his arguments all
regard that section’s requirements.
3
       Idaho Code § 19-2524(3)(vii) requires an examination report to also include:
       A plan of treatment if the mental health examination indicates that:
              1. The defendant suffers from a severe and reliably diagnosable mental
              illness or defect;
              2. Without treatment, the immediate prognosis is for major distress
              resulting in serious mental or physical deterioration of the defendant;
              3. Treatment is available for such illness or defect; and

                                                7
requirements in the two sections are identical. None of those requirements specifies a minimum
length for an examination/evaluation.
       On appeal, Morris relies on State v. Pearson, 108 Idaho 889, 891, 702 P.2d 927, 929 (Ct.
App. 1985), where this Court considered the six criteria for a report listed in section 19-2522 and
concluded an evaluation, ordered under that section, was insufficient where it provided only
conclusory statements without explanation of the bases for the conclusions. We characterized
the requirements under section 19-2522(3) as an “in-depth analysis,” used to ensure the
evaluation is sufficient and contains the necessary information for a sentencing court. Pearson,
108 Idaho at 891, 702 P.2d at 929; see also State v. McFarland, 125 Idaho 876, 881, 876 P.2d
158, 163 (Ct. App. 1994). Even assuming that section 19-2524 likewise requires an in-depth
analysis, Morris never alleged in his petition or affidavit that the report in his case lacked the
requisite detail. He complained only that it was not performed by a licensed physician and that
the counselor spent only twenty minutes with him. His current argument was not raised below.
Moreover, the report, which is in the record on this appeal, is an eight-page document containing
much detail about the evaluator’s observations and conclusions. Even on appeal, Morris does
not specify how this report fails to comply with the Pearson standard such that an objection from
his defense counsel could have kept it from being considered by the court at sentencing.
       2.      Reduced sentence
       Morris asserts that had counsel objected to the mental health examination, Morris’s
resulting sentence would have been greatly reduced. The State argues Morris cannot show that
counsel’s failure to object to the mental health examination caused him prejudice because the
court considered numerous other mental health records for sentencing.
       Even if we were to assume Morris could establish trial counsel was deficient, Morris fails
to show the outcome of sentencing would have been different.               Morris claimed he is
“schizophrenic, bipolar, ADD, and manic depressant.”          To establish those claims, Morris
authorized the release of numerous medical records. The trial court, for sentencing, reviewed the
records from no less than six institutions. Trial counsel was of the opinion that mental health




               4. The relative risks and benefits of treatment or nontreatment are such
               that a reasonable person would consent to treatment.


                                                8
would be a factor at sentencing and argued the mental health records provided support that
Morris has mental health problems, beginning as an early teenager, and that “they’re not
insignificant.” Trial counsel also argued that the mental health examination, which essentially
claimed Morris made up all of his mental health issues, did not counteract the numerous medical
records establishing that Morris was mentally ill. Nonetheless, the district court found that
Morris’s criminal behavior was more a result of substance abuse rather than mental illness and
Morris had been given previous opportunities to complete substance abuse treatment without
success. Our review of the medical records considered at sentencing show the district court’s
decision was supported by substantial evidence contained within those documents.
Consequently, Morris cannot show counsel’s failure to object to the mental health examination
caused prejudice.
                                                 III.
                                          CONCLUSION
       Morris did not allege facts sufficient to show even the possibility that his mental health
examination did not meet statutory requirements or that, absent the mental health examination,
he would have received a greatly reduced sentence.            Morris, therefore, did not raise the
possibility of a valid claim of ineffective assistance of counsel and the district court did not abuse
it’s discretion in denying Morris’s request for appointment of counsel. We affirm the district
court’s judgment summarily dismissing Morris’s petition for post-conviction relief.
       Judge LANSING and Judge MELANSON CONCUR.




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