               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 41235

LEE EDD GREEN, JR.,                               )
                                                  )     2014 Opinion No. 55
       Petitioner-Appellant,                      )
                                                  )     Filed: July 18, 2014
v.                                                )
                                                  )     Stephen W. Kenyon, Clerk
STATE OF IDAHO,                                   )
                                                  )
       Respondent.                                )
                                                  )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Owyhee County. Hon. Molly J. Huskey, District Judge.

       Judgment summarily dismissing action for post-conviction relief, affirmed.

       Richard L. Harris, Caldwell, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Lee Edd Green, Jr. appeals from the judgment dismissing his petition for post-conviction
relief on the ground that it was barred by the statute of limitations. We affirm.
                                                 I.
                                        BACKGROUND
       In 2011, Green was represented by appointed counsel in a criminal case. Pursuant to a
negotiated plea agreement, Green pleaded guilty to two counts of lewd conduct with a minor
child under sixteen, Idaho Code § 18-1508, and one count of felony injury to a child, I.C. § 18-
1501(1). The plea agreement provided for the dismissal of additional charges and required that
the district court retain jurisdiction, but left the underlying sentence open to argument. The
agreement further provided that Green waived his right to appeal, his right to file an Idaho
Criminal Rule 35 motion for reduction of sentence, and his right to file an action for post-
conviction relief. The district court imposed concurrent unified sentences of twenty years with



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ten years fixed for the lewd conduct convictions, and a consecutive unified sentence of ten years
with five years fixed for felony injury to a child. In accord with the agreement, the district court
also retained jurisdiction for 180 days. The judgment of conviction was filed on December 20,
2011.
        On June 15, 2012, at the conclusion of Green’s rider, 1 the district court relinquished
jurisdiction and executed the sentences.      Shortly thereafter, Green filed an Idaho Criminal
Rule 35 motion for reduction of the sentences and an appeal from the order relinquishing
jurisdiction. The district court denied the Rule 35 motion on the ground that, through the plea
agreement, Green had waived his right to file the motion. Green’s appeal was also dismissed on
the State’s motion, presumably also on the basis of the waiver in the plea agreement.
        On March 6, 2013, one year and seventy days after entry of the judgment of conviction,
Green filed this post-conviction action asserting a number of claims of ineffective assistance of
defense counsel. The State filed a motion for summary dismissal on the basis of the plea
agreement’s waiver of Green’s right to file a post-conviction petition and, in the alternative, on
the basis that the action was barred by the statute of limitations. The district court declined to
dismiss the action on the ground of waiver, 2 but granted the State’s motion to dismiss the
petition as time-barred. Green filed a motion for reconsideration of the dismissal, which the
district court denied, and Green now appeals.
                                                II.
                                           ANALYSIS
        A summary dismissal of a post-conviction action will be upheld on appeal if the facts
alleged by the petitioner, even if true, would not entitle petitioner to relief. See I.C. § 19-4906;
Matthews v. State, 122 Idaho 801, 807, 839 P.2d 1215, 1221 (1992); Wilson v. State, 133 Idaho
874, 877-78, 993 P.2d 1205, 1208-09 (Ct. App. 2000). Legal conclusions of the district court are
reviewed de novo. Owen v. State, 130 Idaho 715, 716, 947 P.2d 388, 389 (1997); Wilson, 133

1
        “Rider” is a term for the retained jurisdiction program.
2
        Green’s brief on appeal includes an argument, supported by authority from other
jurisdictions, that it is impermissible for a criminal defense attorney to advise a client to waive
the right to pursue post-conviction relief for ineffective assistance of counsel due to the conflict
of interest that is inherent in such advice. Green argues that such waivers are void. Because we
conclude that Green’s post-conviction action was barred on other grounds, we do not reach this
issue.

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Idaho at 878, 993 P.2d at 1209. Whether this post-conviction action is barred by the statute of
limitations is an issue of law and is therefore subject to our free review.
       The limitations period for filing a petition for post-conviction relief in noncapital cases is
“one (1) year from the expiration of the time for appeal or from the determination of an appeal or
from the determination of a proceeding following an appeal, whichever is later.” I.C. § 19-4902.
The “appeal” referenced in that section means an appeal in the underlying criminal case.
Gonzalez v. State, 139 Idaho 384, 385, 79 P.3d 743, 744 (Ct. App. 2003); Hanks v. State, 121
Idaho 153, 154, 823 P.2d 187, 188 (Ct. App. 1992). With respect to post-conviction claims
arising from prejudgment proceedings in the criminal case, the limitations period generally
begins to run from the expiration of the time for appeal from the judgment of conviction. If the
post-conviction claims arise from matters that occurred after judgment in the criminal case and
that led to a post-judgment order from which the petitioner seeks relief, then the limitations
period commences upon the expiration of the time for appeal from the post-judgment order.
Illustrative of these principles is Lake v. State, 124 Idaho 259, 858 P.2d 798 (Ct. App. 1993),
where a petition for post-conviction relief asserted both claims relating to a 1984 judgment of
conviction and a claim of ineffective assistance of counsel during 1986 probation revocation
proceedings. We held that the petitioner’s claim which related to the probation revocation
proceeding was timely, but that the claims relating to the 1984 convictions were barred by the
statute of limitations. Id. at 260, 858 P.2d at 799. Similarly, in Fox v. State, 129 Idaho 881, 884,
934 P.2d 947, 950 (Ct. App. 1997), we held that a post-conviction petition was timely with
respect to a claim of ineffective assistance of counsel in handling a post-judgment motion for
reduction of sentence, but was untimely with respect to claims related to the judgment of
conviction itself. And, in Gonzalez, 139 Idaho at 386-87, 79 P.3d at 745-46, the post-conviction
petition would have been timely for claims related to probation revocation proceedings, but the
petition included no claim concerning the order revoking probation. Instead, all of the claims for
post-conviction relief referred to proceedings leading to the judgment of conviction and
sentence. For those claims, we held that the limitation period for a post-conviction action had
expired years before the action was filed. These cases stand for the proposition that where there
has been a motion or proceeding after judgment in a criminal action, the entry of an order on that
matter does not usually affect the running of the statute of limitations for a post-conviction relief
claim that arose from events which preceded the judgment of conviction.


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       Thus, a determination of the timeliness of a post-conviction petition must begin with the
allegations in the petition itself which identify the underlying criminal proceeding, order, or
judgment that the petitioner seeks to set aside. Here, Green’s petition asserted a number of
claims of ineffective assistance of defense counsel, including claims that his defense attorney did
an inadequate investigation; refused to offer defenses even though Green provided names of
witnesses who could support the defenses; urged Green to plead guilty rather than pursuing
defenses; improperly permitted Green to enter into a plea agreement that waived Green’s rights
to appeal, to file a Rule 35 motion, or to file an action for post-conviction relief; and falsely
assured Green that the plea agreement required that he be placed on probation if he successfully
completed the retained jurisdiction program. Because all of these claims involve allegations of
prejudgment errors and omissions of defense counsel, the one-year limitation period for Green’s
post-conviction action began to run from the expiration of the time to appeal from the judgment
of conviction.
       The time for filing appeals in criminal cases is governed by Idaho Appellate Rule 14(a)
which states:
               Any appeal as a matter of right from the district court may be made only
       by physically filing a notice of appeal with the clerk of the district court within 42
       days from the date evidenced by the filing stamp of the clerk of the court on any
       judgment or order of the district court appealable as a matter of right in any civil
       or criminal action. . . . The time for an appeal from any criminal judgment, order
       or sentence in an action is terminated by the filing of a motion within fourteen
       (14) days of the entry of the judgment which, if granted, could affect the
       judgment, order or sentence in the action, in which case the appeal period for the
       judgment and sentence commences to run upon the date of the clerk’s filing stamp
       on the order deciding such motion. If, at the time of judgment, the district court
       retains jurisdiction pursuant to Idaho Code § 19-2601(4), the length of time to file
       an appeal from the sentence contained in the criminal judgment shall be enlarged
       by the length of time between entry of the judgment of conviction and entry of the
       order relinquishing jurisdiction or placing the defendant on probation; provided,
       however, that all other appeals challenging the judgment must be brought within
       42 days of that judgment.

Here, the judgment of conviction was filed on December 20, 2011. Therefore, the time to file an
appeal challenging the judgment or any act that preceded the judgment expired forty-two days
later, on January 31, 2012. It follows that the one-year statute of limitations for Green to file a




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post-conviction petition under I.C. § 19-4902 expired on January 31, 2013, 3 and Green’s petition
filed on March 6, 2013, was untimely.
       Green asserts that the final sentence of the above-quoted portion of Rule 14(a) operated
to make his petition timely, but he misreads the rule. The sentence provides that if the district
court retains jurisdiction, the time for an appeal from the sentence only is enlarged by the time
between entry of the judgment of conviction and entry of an order relinquishing jurisdiction or
placing the defendant on probation. The rule expressly states that all other appeals challenging
the judgment must be brought within forty-two days of that judgment. 4 Therefore, except for
appeals challenging the defendant’s sentence, a period of retained jurisdiction does not extend
the forty-two-day time limit for an appeal from the judgment of conviction. Because none of
Green’s post-conviction claims assert ineffective assistance of counsel or other flaws in the
sentencing proceedings, the statute of limitations for his post-conviction claims was not extended
by the period of retained jurisdiction.
       It must be acknowledged that one of Green’s post-conviction claims relates indirectly to
the sentences, but the claimed deficiency of his defense attorney occurred at or before the guilty
plea hearing. Green alleges that his defense attorney was deficient for failing to require language
in the plea agreement obligating the court to place Green on probation if probation was
recommended by the Idaho Department of Correction’s jurisdictional review committee. He also
alleges that defense counsel falsely assured Green that under terms of the plea agreement he
would receive probation in such event. While these allegations are related to Green’s sentences,

3
       The State argues that because Green’s plea agreement included a waiver of his right to
appeal, the limitations period for his post-conviction action commenced on December 20, 2011,
the date of the judgment of conviction, rather than forty-two days later. This contention is
without merit. Idaho Code § 19-4902 specifies that where no appeal from the judgment of
conviction has been taken, the limitations period for a post-conviction action begins upon
“expiration of the time for appeal.” It is not conditioned upon there being a meritorious basis for
an appeal.
4
        This provision of I.A.R. 14(a) formerly stated: “In a criminal case, the time to file an
appeal is enlarged by the length of time the district court actually retains jurisdiction pursuant to
Idaho Code. When the court releases its retained jurisdiction or places the defendant on
probation, the time within which to appeal shall commence to run.” By amendment effective
July 1, 2011, the rule was changed to its current form. Cases that Green relies upon for the
proposition that the time for appeal from a judgment is enlarged by the period of retained
jurisdiction are based upon the former version of I.A.R. 14(a).


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they allege deficiencies by counsel in the course of the plea negotiations. They are in substance
a challenge to the validity of Green’s guilty plea, and hence to the judgment of conviction. If
Green were entitled to relief on these claims, the relief would be vacating the guilty plea and the
judgment that was predicated upon that plea. None of Green’s claims of ineffective assistance
relate to counsel’s conduct at the sentencing hearing or in any proceedings concerning
relinquishment of jurisdiction at the conclusion of his rider. For these reasons, the statute of
limitations for these claims was not extended by the final sentence of Rule 14(a).
         Green also asserts that his Idaho Criminal Rule 35 motion for reduction of sentence filed
on June 26, 2012, extended the period for appeal from his judgment of conviction by terms of the
second sentence of the above-quoted portion of Rule 14(a), and that the limitations period for his
post-conviction action was thereby extended. Again, he is incorrect. Although the Rule 35
motion was filed within fourteen days of the June 15, 2012, order relinquishing jurisdiction, it
was not filed within fourteen days of the judgment, as required by the rule. Consequently, the
motion had no effect on the time for an appeal from the judgment of conviction and no effect on
the commencement of the statute of limitations for a post-conviction petition. Fox, 129 Idaho at
884, 934 P.2d at 950.
         Finally, Green appears to argue that his June 27, 2012, appeal from the June 15, 2012,
order relinquishing jurisdiction operated to delay commencement of the one-year limitations
period until that appeal was dismissed because I.C. § 19-4902 provides, in part, that the
limitations period does not begin until “the determination of an appeal.” We disagree. If Green
was at that point attempting to appeal from the judgment of conviction, the appeal would have
been untimely under I.A.R. 14(a). An untimely notice of appeal in a criminal case does not
produce a valid appeal for an appellate court to “determine” and therefore cannot postpone or
restart the post-conviction statute of limitations under I.C. § 49-4902(a). Schultz v. State, 151
Idaho 383, 385, 256 P.3d 791, 793 (Ct. App. 2011); Amboh v. State, 149 Idaho 650, 652-53, 239
P.3d 448, 450-51 (Ct. App. 2010); Loman v. State, 138 Idaho 1, 2, 56 P.3d 158, 159 (Ct. App.
2002).
         Even without the extension of the limitations period for which Green has argued in this
appeal, more than half a year remained for Green to file this post-conviction action after the
court relinquished jurisdiction in his criminal case. He did not file this action, however, until




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twenty-eight days after the limitations period expired. Therefore, his post-conviction action was
properly dismissed by the district court.
       The district court’s judgment dismissing Green’s untimely post-conviction petition is
affirmed.
       Chief Judge GUTIERREZ and Judge MELANSON CONCUR.




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