               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 43549

STATE OF IDAHO,                                 ) 2016 Opinion No. 42
                                                )
       Plaintiff-Respondent,                    ) Filed: June 23, 2016
                                                )
v.                                              ) Stephen W. Kenyon, Clerk
                                                )
JAMES GREER DALY,                               )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Deborah A. Bail, District Judge.

       Judgment of conviction nunc pro tunc, remanded.

       Nevin, Benjamin, McKay & Bartlett, LLP; Dennis A. Benjamin, Boise, for
       appellant. Dennis A. Benjamin argued.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
                 ________________________________________________

GUTIERREZ, Judge
       James Greer Daly appeals from the district court’s judgment of conviction entered nunc
pro tunc following post-conviction relief. Daly specifically argues the district court abused its
discretion in denying his motion for substitute counsel and his related motion for a continuance
made at his sentencing. For the reasons explained below, we remand.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Daly pled guilty to one count of lewd conduct with a minor under sixteen. At his
sentencing hearing, Daly moved for substitute counsel. The district court summarily denied
Daly’s motion to obtain new counsel, as is reflected in the record:
       THE COURT: I will take up State versus James Daly. Is the state ready to
                  proceed?
       [STATE]:   I am, Your Honor. Thank you.

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       THE COURT: Is the defense?
       [DEFENSE]: I’d like to take up a preliminary matter. I was most recently
                  informed by Mr. Daly that he prefers to retain other counsel.
       THE COURT: I’m not going to let counsel be shifted at this stage.
Daly’s counsel then moved for a continuance and requested that new counsel take over the
sentencing proceedings. The district court denied the continuance, indicating “we have already
continued the sentencing in this case for a month to get an additional mental health evaluation,
and I don’t think that that would be a sensible course of action.” The district court imposed a
twenty-year sentence with three years determinate, retained jurisdiction for up to 365 days, and
entered a judgment of conviction.
       Daly filed a timely notice of appeal, arguing his sentence was excessive. However, the
Supreme Court dismissed the appeal because Daly never paid the $100 deposit for preparation of
the clerk’s record. Daly subsequently filed a petition for post-conviction relief, alleging his trial
counsel was ineffective in several respects, including trial counsel’s failure to inform Daly of the
$100 fee for the clerk’s record. In the post-conviction action, the district court found that Daly’s
trial counsel was indeed ineffective in failing to advise Daly that he needed to pay the $100 fee
on direct appeal.1 The district court therefore determined the judgment of conviction would be
re-entered to allow him to pursue his direct appeal. The district court subsequently entered
judgment on July 23, 2015, noting:
       The petition for post-conviction relief is dismissed with prejudice as to all claims
       except that the Judgment of Conviction entered October 15, 2012 is to be re-
       entered nunc pro tunc, without reference to a retained jurisdiction program, so
       that the petitioner may appeal since judgment is entered in his behalf on that one
       claim only.[2]
Daly appeals from his judgment of conviction entered nunc pro tunc.




1
      The post-conviction action was voluntarily dismissed by Daly on appeal. Daly v. State,
Docket No. 43542.
2
      The final judgment indicated the original judgment of conviction was entered on
October 15, 2012. However, it was not filed until October 18, 2012.
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                                                 II.
                                            ANALYSIS
A.     Jurisdiction
       As a threshold matter, the State maintains that Daly’s notice of appeal is timely only from
the judgment entered nunc pro tunc, rather than from the original judgment, and is therefore
insufficient to challenge an error that occurred in relation to the original judgment.
       Idaho Appellate Rule 14 provides that an appeal from a judgment of conviction in a
criminal case be filed within forty-two days of the entry of judgment. A timely appeal is
necessary to vest jurisdiction in this Court to review issues raised with respect to the district
court’s actions. State v. Wolfe, 158 Idaho 55, 60, 343 P.3d 497, 502 (2015).
       In support of its argument, the State cites to State v. Payan, 128 Idaho 866, 867, 920 P.2d
82, 83 (Ct. App. 1996), which held that if a judgment is amended, an appeal from that amended
judgment is timely only as to matters that are actually altered by the amended judgment. Since
the judgment nunc pro tunc allowed Daly to pursue his appeal because his attorney failed to
notify Daly of the $100 fee on appeal, the State argues that Daly can only pursue the excessive
sentence issue, which was the sole issue that was timely appealed from the original judgment.
The State opines that the issues regarding the motions to substitute counsel and to continue
sentencing were untimely from the original judgment and only timely as to the judgment nunc
pro tunc.
       Payan is distinguishable from the present case, however. In Payan, the judgment was
amended to grant credit on the defendant’s sentence. Payan, 128 Idaho at 866-67, 920 P.2d at
82-83. Here, the judgment was not amended, but rather was entered nunc pro tunc to allow Daly
to pursue his appeal. “Nunc pro tunc” means “now for then.” BLACK’S LAW DICTIONARY 1100
(8th ed. 2004). Idaho lacks precedent that explains the effect of nunc pro tunc judgments in
criminal and post-conviction cases. On the civil side, we have explained that “when used in a
judgment, the phrase [nunc pro tunc] signifies a relation back to a designated date, indicating
that the judgment will be given anterior effect.” Ward v. Lupinacci, 111 Idaho 40, 41-42, 720
P.2d 223, 224-25 (Ct. App. 1986). A petition for post-conviction relief initiates a proceeding
that is civil in nature. Idaho Code § 19-4907; Rhoades v. State, 148 Idaho 247, 249, 220 P.3d
1066, 1068 (2009); State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Murray v.



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State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct. App. 1992). It therefore follows that nunc
pro tunc, as understood on the civil side, has the same effect in post-conviction cases.
       Neighboring states have recognized this same effect of judgments entered nunc pro tunc
in both the criminal and civil contexts. See, e.g., State v. Lane, 957 P.2d 9, 17 (Mont. 1998)
(holding a nunc pro tunc order is a district court order made now of something which was
actually done previously to have effect as of the former date); Evans v. Brentmar, 62 P.3d 847,
853 (Or. Ct. App. 2003) (holding a judgment nunc pro tunc has the effect of relating back a later
judgment to an earlier date); State v. Hendrickson, 198 P.3d 1029, 1031 (Wash. 2009) (holding a
nunc pro tunc order allows a court to date a record reflecting its action back to the time the action
in fact occurred). Moreover, the Ninth Circuit has ruled that nunc pro tunc signifies now for
then, or in other words, a thing is done now, which shall have same legal force and effect as if
done at time when it ought to have been done. United States v. Allen, 153 F.3d 1037, 1044 (9th
Cir. 1998); BLACK’S LAW DICTIONARY 964 (5th ed. 1979).                  This Court agrees with these
principles of judgments entered nunc pro tunc, and we see no reason why such judgments would
have different effects in civil, post-conviction, and criminal cases.
       Turning back to the instant case, the judgment entered nunc pro tunc granting post-
conviction relief relates back to the original judgment. It therefore effectively put Daly in the
position he was in when the original judgment was entered. Because Daly can appeal any issues
from the original judgment, so too can he appeal any issues from the judgment entered nunc pro
tunc--he is not limited to appealing the excessive sentence issue.             Thus, this Court has
jurisdiction to address the district court’s denial of Daly’s motion to substitute counsel and his
related motion to continue sentencing.
B.     Right to Counsel of Choice
       Daly argues the district court abused its discretion when it denied his motion to substitute
counsel and his related motion to continue sentencing. At the October 15, 2012, rescheduled
sentencing hearing, Daly’s defense attorney informed the district court that Daly wished to retain
new counsel. Without conducting any inquiry, the district court summarily denied the request,
indicating that it would not “let counsel be shifted at this stage.” In response, Daly’s counsel
moved to continue, allowing for new counsel to take over the sentencing proceedings. The
district court also denied Daly’s motion for a continuance. It reasoned that sentencing had



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already been continued for a month to get an additional mental health evaluation, and thus
another continuance would not be a sensible course of action.
       We note that the central issue here is whether Daly’s right to counsel of choice was
denied. This involves a constitutional issue; thus, we exercise free review. State v. Abdullah,
158 Idaho 386, 417, 348 P.3d 1, 32 (2015) (“Constitutional issues are pure questions of law over
which this Court exercises free review.”); State v. Kilby, 130 Idaho 747, 749, 947 P.2d 420, 422
(Ct. App. 1997) (holding we freely review the application of constitutional principles to the facts
as found).
       The Sixth Amendment to the United States Constitution provides that “in all criminal
prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his
defence.” U.S. CONST. amend. VI (emphasis added). An essential aspect of this right is the right
of a defendant who can afford private counsel to choose who will represent him. United States v.
Gonzalez-Lopez, 548 U.S. 140, 144 (2006). A “[d]eprivation of the right is ‘complete’ when the
defendant is erroneously prevented from being represented by the lawyer he wants, regardless of
the quality of the representation he received.” Id. at 148. Thus, the erroneous denial of the right
to counsel of choice is a structural error, and a court need not assess whether counsel was
ineffective or whether the defendant was prejudiced by the error.” Id. The right to counsel of
choice is qualified, however. Indeed, the United States Supreme Court has recognized a trial
court’s wide latitude in balancing the right to counsel of choice against the needs of fairness and
against the demands of its calendar. Id. at 152; Wheat v. United States, 486 U.S. 153, 163-64
(1988); Morris v. Slappy, 461 U.S. 1, 11-12 (1983); see also State v. Carman, 114 Idaho 791,
793, 760 P.2d 1207, 1209 (Ct. App. 1988).
       Here, the summary denial of the motion for substitute counsel does not allow for our
review of the district court’s rulings. Both this Court and the Idaho Supreme Court have held
that when a motion for substitute counsel is involved, the trial court has an obligation to afford
the defendant “a full and fair opportunity to present the facts and reasons in support of [his]
motion.” State v. Nath, 137 Idaho 712, 715, 52 P.3d 857, 860 (2002); State v. Clayton, 100
Idaho 896, 898, 606 P.2d 1000, 1002 (1980); State v. Peck, 130 Idaho 711, 713, 946 P.2d 1351,
1353 (Ct. App. 1997). For instance in Peck, the defendant requested the district court discharge
the public defender’s office. Peck, 130 Idaho at 712, 946 P.2d at 1352. We found no indication
in the record that the district court provided the defendant a full and fair opportunity to explain

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his reasons for wanting to discharge the public defender’s office. Id. at 713, 946 P.2d at 1353.
Rather, the district court merely stated that the defendant’s request appeared to be an attempt to
manipulate the system, and the record did not provide a basis for that conclusion. Id. at 714, 946
P.2d at 1354. We remanded with instructions for the district court to conduct a hearing to
determine whether the defendant possessed good cause for his request to substitute counsel. Id.
       Here, too, the record does not reflect whether the district court inquired into Daly’s
reasons for wanting to substitute counsel or what the district court considered in making its
decision to deny Daly’s motions. Although Peck, Clayton, and Nath involve court-appointed
counsel, we see no reason to differentiate between court-appointed counsel and privately retained
counsel when both implicate the Sixth Amendment right to counsel. Thus, we remand for
further proceedings, specifically for a hearing on the motion for substitute counsel and motion
for a continuance. If the court finds that at the time of his sentencing hearing Daly was entitled
to a new attorney, Daly’s sentence must be vacated, and he must be afforded a new sentencing
hearing with representation of substitute counsel. If, however, the court finds that Daly was not
entitled to a new attorney, the judgment of conviction and sentence are upheld.
                                               III.
                                        CONCLUSION
       We hold that Daly’s appeal is timely, and this Court has jurisdiction to address the merits
of Daly’s appeal. However, the record before us is insufficient to make a determination on the
district court’s denial of Daly’s motion to substitute counsel and his related motion to continue
sentencing. We therefore remand for a hearing on the matter.
       Chief Judge MELANSON and Judge HUSKEY CONCUR.




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