               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 44521

COREY STEVEN KUBAT,                             )    2017 Unpublished Opinion No. 504
                                                )
       Petitioner-Appellant,                    )    Filed: June 28, 2017
                                                )
v.                                              )    Karel A. Lehrman, Clerk
                                                )
STATE OF IDAHO,                                 )    THIS IS AN UNPUBLISHED
                                                )    OPINION AND SHALL NOT
       Respondent.                              )    BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Christopher S. Nye, District Judge.

       Judgment denying petition for post-conviction relief after an evidentiary
       hearing, affirmed.

       Nevin, Benjamin, McKay & Bartlett LLP; Deborah Whipple, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GRATTON, Chief Judge
       Corey Steven Kubat appeals from the district court’s judgment denying his petition for
post-conviction relief after an evidentiary hearing. We affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Kubat was on probation. Officers conducted a home check on Kubat. Kubat lived with
his girlfriend and two of her grandchildren. One of the grandchildren invited the officers into the
house. After the officers entered, Kubat’s girlfriend came out of one of the bedrooms at the back
of the house, calling out that the officers were there and shutting the door behind her. Kubat’s
girlfriend said her friend was in the bedroom. The friend later came out of the bedroom. The
officers searched the women for weapons. The officers did not find anything and allowed the
friend to leave. Kubat then came from the back of the house. One of the officers believed Kubat


                                                1
came from the back bedroom where the women had come from. Kubat appeared nervous. The
officers tried to search him for weapons. Kubat objected and tried to escape, attempting to
remove an item from his pocket. The officers caught and detained Kubat.
        The officers searched the bedroom where the women had come from. They found a
variety of items they believed belonged to Kubat. They did not find any items that might belong
to a woman. In a desk in the bedroom, the officers found drug paraphernalia, nine small bags
containing methamphetamine, and a ledger the officers believed to contain records of
methamphetamine sales.       One of the officers later testified that the ledger contained the
statement, “I, Corey S. Kubat.” The officer testified that he did not know if Kubat wrote the
statement in the ledger, “but it does state his name in it.”
        The officers arrested Kubat. One of the officers questioned Kubat. The officer later
testified:
        And then I went into if he knew what was located in the house and everything,
        and he said he did. I believe his exact words were he’s fucked. . . . He would not
        tell me where he got it from or who he got it from. He did inform me that he
        knew it was in the house. I asked him if his [girlfriend] knew anything about it.
        He said she did not know of him buying or selling any methamphetamine.
The State charged Kubat with possession of a controlled substance with intent to deliver and a
persistent violator enhancement. At trial, Kubat’s girlfriend testified she did not know he was
selling methamphetamine. A jury found Kubat guilty. Kubat appealed, and this Court affirmed
his conviction. See State v. Kubat, 158 Idaho 661, 350 P.3d 1038 (Ct. App. 2015).
        Kubat filed a pro se petition for post-conviction relief and supporting affidavit. The
district court appointed counsel. The court dismissed all the claims in Kubat’s petition except a
claim that he was denied his right to testify. The court held an evidentiary hearing on that claim.
        At the evidentiary hearing, post-conviction counsel explained that the claim was based on
Kubat’s constitutional right to testify, not on ineffective assistance of trial counsel. Kubat
testified at the hearing.   Kubat testified that he could not recall trial counsel or the court
informing him that the decision to testify was ultimately his to make, and if he had known this,
he would have testified. Trial counsel also testified at the hearing. Trial counsel testified he had
advised Kubat not to testify because of potential impeachment and perjury issues. Counsel also
testified he never told Kubat that Kubat could not testify, could not recall telling Kubat that the
decision to testify was ultimately Kubat’s to make, and would have let Kubat testify had Kubat
pressed the issue. Further, trial counsel testified that after the trial he learned from Kubat’s
                                                   2
friend that Kubat fled the officers because he had a small amount of marijuana in his pocket.
According to trial counsel, had counsel known this, he likely would have had Kubat testify to
explain why Kubat fled.
       After the hearing, the court denied relief on the claim because there was “no evidence
that [Kubat] asked to testify and had his request refused or that his desire and/or attempt to
testify were otherwise impeded.” Kubat timely appeals.
                                                II.
                                           ANALYSIS
       Kubat asserts the district court erred in denying his petition for post-conviction relief
after an evidentiary hearing. In order to prevail in a post-conviction proceeding, the petitioner
must prove the allegations by a preponderance of the evidence. I.C. § 19-4907; Stuart v. State,
118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); Baxter v. State, 149 Idaho 859, 861, 243 P.3d
675, 677 (Ct. App. 2010). When reviewing a decision denying post-conviction relief after an
evidentiary hearing, an appellate court will not disturb the lower court’s factual findings unless
they are clearly erroneous. I.R.C.P. 52(a); Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382
(2004); Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of
the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the
evidence are all matters solely within the province of the district court. Dunlap, 141 Idaho at 56,
106 P.3d at 382; Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We
exercise free review of the district court’s application of the relevant law to the facts. Baxter,
149 Idaho at 862, 243 P.3d at 678.
       Kubat asserts he was deprived of his constitutional right to testify on his behalf. 1 Every
criminal defendant has a fundamental right to testify on his or her own behalf. Rock v. Arkansas,

1
        At the evidentiary hearing, post-conviction counsel argued Kubat was asserting a
constitutional claim. The district court accepted this argument and analyzed whether Kubat was
deprived of his constitutional right to testify. However, as pled, Kubat’s claim was based on the
conduct of trial counsel. In his petition, Kubat asserted “[Trial counsel] told me I was not
alloweed [sic] to take the stand in my own defense, because he feared I would purger [sic]
myself.” Moreover, Kubat’s claim relied on information (trial counsel’s conduct) not included in
the record of the underlying case. We note that a claim based on trial counsel’s conduct and on
information not included in the record of the underlying case should be addressed as an
ineffective assistance of counsel claim, not a direct constitutional claim. In Grove v. State, 161
Idaho 840, 851, 392 P.3d 18, 29 (Ct. App. 2017), we held that the potential remedy for post-
conviction claims grounded upon the alleged failings of counsel falls within ineffective
                                                3
483 U.S. 44, 50-51 (1987); State v. Hoffman, 116 Idaho 689, 690, 778 P.2d 811, 812 (Ct. App.
1989). Although not expressly stated in the federal or state constitutions, the right to testify on
one’s own behalf is necessarily implied from the Due Process Clauses of the Fifth and
Fourteenth Amendments and from the Compulsory Process Clause of the Sixth Amendment.
Rock, 483 U.S. at 51-52; see also State v. Darbin, 109 Idaho 516, 521, 708 P.2d 921, 926 (Ct.
App. 1985). Although counsel may advise the defendant regarding the wisdom and propriety of
testifying, the defendant personally is vested with the ultimate authority to decide whether or not
to testify. Hoffman, 116 Idaho at 690, 778 P.2d at 812. Because the right to testify on one’s own
behalf in a criminal case can be waived, the first inquiry is whether the defendant knew that the
ultimate decision of whether to testify was his or hers to make. See Cootz v. State, 129 Idaho
360, 369, 924 P.2d 622, 631 (Ct. App. 1996). If it cannot be ascertained that the defendant knew
of his or her right to testify and waived that right, then the second step is to apply the harmless
error analysis. Id. To determine whether a deprivation of a defendant’s right to testify may be
treated as harmless, the appellate court must be satisfied beyond a reasonable doubt that the error
did not affect the jury’s verdict. Id.
        Kubat was not affirmatively prevented from testifying. Trial counsel advised Kubat not
to testify because of potential impeachment and perjury issues, and Kubat agreed with or
acquiesced in trial counsel’s advice. However, it is not clear whether Kubat knew the decision to
testify was ultimately his to make. Both Kubat and trial counsel testified that they could not
recall trial counsel informing Kubat that Kubat had the ultimate authority to decide whether to
testify. Further, Kubat testified he could not recall the district court informing him that the
decision to testify was ultimately his to make, and the record does not suggest the court so
advised him. A defendant may not be found to have waived the right to testify where there is no
evidence in the record that the defendant was aware he had the ultimate authority to decide this
critical issue. Hoffman, 116 Idaho at 692, 778 P.2d at 814. Thus, the record is inadequate to find
that Kubat waived his right to testify.




assistance of counsel, not direct constitutional violation. We will, however, address the claim
presented. Because we hold that any error was harmless, we need not address the State’s claim
that no constitution deprivation could have occurred because defense counsel was not a State
actor.
                                                4
       However, this does not end our analysis. An infringement upon a defendant’s right to
testify may be treated as harmless error if the appellate court is satisfied, beyond a reasonable
doubt, that the error did not affect the jury’s verdict. 2 Id. Even assuming Kubat was deprived of
his right to testify, the deprivation was harmless. The evidence against Kubat was compelling,
and Kubat’s attempt to flee officers; the ledger containing the statement, “I, Corey S. Kubat;”
Kubat’s statement showing consciousness of guilt; and Kubat’s admission that his girlfriend did
not know he was trafficking in methamphetamine would not have been affected by any marginal
benefit his testimony may have had. 3 Thus, we are convinced, beyond a reasonable doubt, that
even if Kubat had testified, the jury would have still found him guilty. Accordingly, even
assuming Kubat was deprived of his right to testify at trial, such error was harmless.
                                                III.
                                         CONCLUSION
       Even assuming Kubat was deprived of his right to testify, the error was harmless. We
affirm the district court’s judgment denying Kubat’s petition for post-conviction relief after an
evidentiary hearing.
       Judge GUTIERREZ and Judge MELANSON CONCUR.


2
         This Court has analyzed harmless error even when the district court did not. See Kuehl
v. State, 145 Idaho 607, 611, 181 P.3d 533, 537 (Ct. App. 2008) (analyzing harmless error when
district court summarily dismissed petition for post-conviction relief); Cootz v. State, 129 Idaho
360, 369, 924 P.2d 622, 631 (Ct. App. 1996) (analyzing harmless error when district court
summarily dismissed petition for post-conviction relief); State v. Hoffman, 116 Idaho 689, 692,
778 P.2d 811, 814 (Ct. App. 1989) (analyzing harmless error when district court concluded
defendant waived right to testify and did not go on to analyze harmless error).
3
        Trial counsel testified that after the trial, counsel learned from Kubat’s friend that Kubat
fled the officers because he had a small amount of marijuana in his pocket. On appeal, Kubat
asserts “he could have explained to the jury why he attempted to run” and his testimony “would
have precluded the state’s argument that his attempt to run was proof that he knew about the
methamphetamine, [paraphernalia], and ledger in the house.” First, Kubat never testified at the
evidentiary hearing as to what he would have said at trial. Second, given his admissions and the
other evidence, his attempted flight was much more likely due to the drug evidence in the house,
even if it also related to the marijuana in his pants. Kubat also asserts “he could have told the
jury about his blindness” and this testimony “would have rebutted the state’s theory that the
ledger was his, as he could not see well enough to use it.” This is pure argument without basis in
fact. Nothing suggested his eyesight would have prevented him from seeing well enough to use
the ledger. In light of the compelling evidence suggesting Kubat was trafficking in
methamphetamine, this supposed testimony would not have affected the jury’s verdict.
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