                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 39419

JEFFERY E. MARTIN,                                 )   2013 Unpublished Opinion No. 796
                                                   )
       Petitioner-Appellant,                       )   Filed: December 20, 2013
                                                   )
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STATE OF IDAHO,                                    )   THIS IS AN UNPUBLISHED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. Timothy Hansen, District Judge.

       Judgment denying post-conviction relief, affirmed.

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

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Jeffrey E. Martin appeals from the district court’s judgment denying his petition for post-
conviction relief after an evidentiary hearing.
                                                  I.
                                         BACKGROUND
       In a previous appeal, we described the background of Martin’s criminal case:
               Following a traffic stop of a vehicle driven by Martin, a Boise police
       officer frisked Martin for weapons. A number of unused syringes were found in
       his pocket. Thereafter, Martin’s vehicle was searched with his consent, and the
       officer found a small amount of a substance suspected to be methamphetamine,
       another syringe, and other paraphernalia. Martin was arrested and charged with
       possession of methamphetamine, Idaho Code § 37-2732(c)(1), and possession of
       drug paraphernalia, I.C. § 37-2734A(1).
               Prior to trial, Martin discharged his public defender and was allowed to
       represent himself. He then filed a motion to suppress the physical evidence found
       in his pocket and vehicle and the statements he made during the detention,


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       contending that his Fourth Amendment rights had been violated when the officer
       frisked him. Martin also filed motions to have the syringe from the vehicle tested
       for DNA at state expense and to have the methamphetamine re-tested at public
       expense. The district court denied the motions. The matter proceeded to trial and
       Martin was convicted on both charges.

State v. Martin, 146 Idaho 357, 359, 195 P.3d 716, 718 (Ct. App. 2008). In that appeal, this
Court found no error in the denial of Martin’s motions and affirmed the judgment of conviction.
       Thereafter, Martin filed a petition for post-conviction relief asserting various claims for
relief. The district court granted the State’s motion for summary dismissal of all claims save for
Martin’s contention that his waiver of counsel prior to trial was not knowing, voluntary, and
intelligent. The district court determined that there existed genuine issues of material fact
concerning Martin’s asserted mental health deficiencies and whether the district court’s warnings
to Martin about the consequences and pitfalls of self-representation were constitutionally
adequate. The claim proceeded to a trial on the merits.
       Evidence presented to the court included a transcript of the hearing in the criminal case at
which Martin waived his right to counsel. It showed that the following exchange occurred:
               THE DEFENDANT: Your Honor, I believe the best defense I am going
       to be able to get in this case is if you will name me pro se counsel with assistance
       from another public defender. I better than anyone know that I am innocent, and I
       am committed more than anyone else is going to be to put up a vigorous defense.
               I am not trained as extensively as a good attorney would be. I don’t have
       the experience, but I do have some education in the law. And I honestly believe
       that that’s my best hope for getting a proper defense in this case.
               THE COURT: Well, Mr. Martin, you absolutely have a constitutional
       right to represent yourself in these proceedings. You have listed a number of
       reasons why self-representation is frequently not a desirable thing, but ultimately
       the decision as to who represents you in this litigation as to whether it is yourself
       or appointed counsel is your decision.
               Is it your decision to represent yourself in this litigation?
               THE DEFENDANT: Yes, sir, it is. However, I would request that I be
       appointed a public defender who will assist me because I have never been through
       the jury selection process, and I may be at a severe disadvantage in that area.
               THE COURT: Well, the role of what is frequently referred to as standby
       counsel is to answer questions that the self-represented litigant may have and that
       sort of thing. It isn’t a co-counsel role where appointed counsel handles, for
       example, jury selection and opening statements. And the other individual, the
       defendant himself, represents or handles another portion of the trial.
               Do you understand that if standby counsel, if any attorney is placed as a
       standby counsel, they would simply be in a position to answer questions you may
       have rather than to conduct portions of the trial?

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               THE DEFENDANT: Yes, sir, but would he be present during the trial?
               THE COURT: Absolutely.
               THE DEFENDANT: Then I feel that is what I would rather do.
               THE COURT: Why is it that [current counsel] could not be put in a
       standby position? He is an extraordinarily experienced trial attorney and he
       certainly has a great understanding of the rules of evidence and procedure.
               THE DEFENDANT: Sir, I would have no problem with that.
               ....
               THE COURT: Well, it is ultimately your decision as to whether he plays
       the role of sitting there answering questions you may have or alternatively
       representing you in this litigation. I don’t want to try to steer you towards a
       decision toward self-representation because, frankly, I think it is an ill-advised
       course. But it is the constitutional right that people have to make decisions that
       are not always in their best interest.

       Following the trial in the post-conviction action, the district court denied post-conviction
relief, finding that Martin was aware of the dangers of representing himself, that there was no
indication that his waiver of his right to counsel was involuntary, and that he had not met his
burden to prove that his waiver of counsel was not knowingly, voluntarily, and intelligently
made. Martin appeals from the subsequent judgment.
                                                II.
                                           ANALYSIS
       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). 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); 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. 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.
Nellsch v. State, 122 Idaho 426, 434, 835 P.2d 661, 669 (Ct. App. 1992).
       The Sixth Amendment guarantees indigent criminal defendants the right to appointed
counsel. Gideon v. Wainwright, 372 U.S. 335, 339-40 (1963); Pharris v. State, 91 Idaho 456,
458, 424 P.2d 390, 392 (1967). A defendant may reject a court-appointed attorney, however,
and conduct his own defense. Faretta v. California, 422 U.S. 806, 835 (1975). If the defendant


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seeks to proceed without counsel, the waiver of counsel must be knowing, voluntary, and
intelligent. Id.; State v. Anderson, 144 Idaho 743, 746, 170 P.3d 886, 889 (2007); State v.
Lovelace, 140 Idaho 53, 64, 90 P.3d 278, 289 (2003). Where a defendant waived counsel and
represented himself at trial, appellate review of the validity of the waiver includes consideration
of the adequacy of warnings by the trial court to the defendant concerning “the dangers and
disadvantages of self-representation” so that the defendant “knows what he is doing and his
choice is made with eyes open.” Faretta, 422 U.S. at 835.
       In this appeal, Martin contends that the trial court’s Faretta warnings at the hearing at
which he waived counsel and elected to defend himself at trial were inadequate and that his
waiver of counsel was therefore constitutionally infirm. Before we reach the merits of this
claim, we consider the State’s contention that Martin’s claim of error should not be addressed
because he did not plead a claim of inadequate Faretta warnings in his petition for post-
conviction relief.
       A petition for post-conviction relief must specifically set forth the grounds upon which
the petition is based and clearly state the relief desired. I.C. § 19-4903. All grounds for relief
must be raised in the original, supplemental, or amended petition. I.C. § 19-4908. The State is
correct in its current assertion that Martin pleaded only a claim that his waiver of counsel was
not knowing, voluntary, and intelligent because of his untreated psychological disorders and that
Martin’s amended petition makes no reference to the adequacy of the district court’s warnings at
the time of his waiver of counsel. We conclude, however, that Martin’s Faretta warnings claim
must be considered by this Court because it was tried by consent.
       Post-conviction petitions are governed by the Idaho Rules of Civil Procedure. Dunlap v.
State, 141 Idaho 50, 57, 106 P.3d 376, 383 (2004); Cole v. State, 135 Idaho 107, 110, 15 P.3d
820, 823 (2000). Idaho Rule of Civil Procedure 15(b) addresses the circumstance when a cause
of action or issue, though not pleaded, is nevertheless presented at trial. It says:
               When issues not raised by the pleading are tried by express or implied
       consent of the parties, they shall be treated in all respects as if they had been
       raised in the pleadings. Such amendment of the pleadings as may be necessary to
       cause them to conform to the evidence and to raise these issues may be made
       upon motion of any party at any time, even after judgment; but failure so to
       amend does not affect the result of the trial of these issues.




                                                  4
The purpose of Rule 15(b) is to allow, in appropriate circumstances, cases to be decided on the
merits rather than upon technical pleading requirements. Noble v. Ada Cnty. Elections Bd., 135
Idaho 495, 500, 20 P.3d 679, 684 (2000). Implied consent to the trial of an unpleaded issue is
not established merely because evidence relevant to that issue was introduced without objection.
M.K. Transport, Inc. v. Grover, 101 Idaho 345, 349, 612 P.2d 1192, 1196 (1980). It must at least
appear that the parties understood evidence presented at trial to be aimed at the unpleaded issue.
Id.
       Here, the record shows that the State clearly understood that a Faretta warnings claim
was being tried. In its order denying summary dismissal of Martin’s waiver of counsel claim, the
district court stated, in clear terms, its belief that Martin was asserting not only that his waiver
was constitutionally infirm because of his untreated psychological disorders but also because of
alleged inadequacy of the trial court’s Faretta warnings. At the subsequent trial, substantial
evidence relevant to the Faretta issue was introduced. At the close of the evidence, both parties
made arguments to the court concerning whether the trial court’s warnings had been
constitutionally adequate. And in its final order denying post-conviction relief, the district court
specifically addressed the issue in some detail, ultimately deciding the issue against Martin.
Because the State knew prior to trial that a Faretta warnings claim would likely be pursued and
because the State participated without objection in a trial at which evidence and argument was
directed to that claim, the Faretta warnings claim currently advanced by Martin in this appeal
was tried by the State’s implied consent. The State’s current position that the issue should not be
addressed in this appeal is therefore erroneous, and we will consider whether this claim was
correctly denied by the district court.
       In Iowa v. Tovar, 541 U.S. 77 (2004), the United States Supreme Court outlined some of
the applicable factors to be considered when a criminal defendant seeks to waive counsel and
proceed pro se:
               We have described a waiver of counsel as intelligent when the defendant
       “knows what he is doing and his choice is made with eyes open.” Adams, 317
       U.S., at 279, 63 S. Ct. 236. We have not, however, prescribed any formula or
       script to be read to a defendant who states that he elects to proceed without
       counsel. The information a defendant must possess in order to make an intelligent
       election, our decisions indicate, will depend on a range of case-specific factors,
       including the defendant’s education or sophistication, the complex or easily
       grasped nature of the charge, and the stage of the proceeding. See Johnson, 304
       U.S., at 464, 58 S. Ct. 1019.

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                As to waiver of trial counsel, we have said that before a defendant may be
       allowed to proceed pro se, he must be warned specifically of the hazards ahead.
       Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), is
       instructive. The defendant in Faretta resisted counsel’s aid, preferring to
       represent himself. The Court held that he had a constitutional right to self-
       representation. In recognizing that right, however, we cautioned: “Although a
       defendant need not himself have the skill and experience of a lawyer in order
       competently and intelligently to choose self-representation, he should be made
       aware of the dangers and disadvantages of self-representation, so that the record
       will establish that he knows what he is doing . . . .” Id., at 835, 95 S. Ct. 2525
       (internal quotation marks omitted).
                Later, in Patterson v. Illinois, 487 U.S. 285, 108 S. Ct. 2389, 101
       L. Ed. 2d 261 (1988), we elaborated on “the dangers and disadvantages of self-
       representation” to which Faretta referred. “[A]t trial,” we observed, “counsel is
       required to help even the most gifted layman adhere to the rules of procedure and
       evidence, comprehend the subtleties of voir dire, examine and cross-examine
       witnesses effectively . . . , object to improper prosecution questions, and much
       more.” 487 U.S., at 299, n.13, 108 S. Ct. 2389. Warnings of the pitfalls of
       proceeding to trial without counsel, we therefore said, must be “rigorous[ly]”
       conveyed. Id., at 298, 108 S. Ct. 2389. We clarified, however, that at earlier
       stages of the criminal process, a less searching or formal colloquy may suffice.
       Id., at 299, 108 S. Ct. 2389.

Tovar, 541 U.S. at 88-89.
       The Idaho Supreme Court has directed that in determining the validity of a defendant’s
waiver of trial counsel the inquiry is whether, as ascertained from the record as a whole, the
defendant was aware of the dangers and disadvantages of trial self-representation, not whether
that awareness was gained solely from the warnings expressed by the trial court at the time of
waiver. In State v. Dalrymple, 144 Idaho 628, 167 P.3d 765 (2007), our Supreme Court stated:
               To determine if Dalrymple’s waiver was constitutionally valid, we view
       the record as a whole, not just at the particular moment of waiver. The Faretta
       Court stated the defendant must “be made aware of the dangers and disadvantages
       of self-representation.” 422 U.S. at 835, 95 S. Ct. at 2541, 45 L. Ed. 2d at 582.
       Faretta warnings, however, do not need to be given contemporaneously to the
       defendant’s waiver. Instead, such warnings must be given “so that the record will
       establish that ‘he knows what he is doing and his choice is made with eyes open.’
       “Id. (quoting Adams v. United States ex. rel. McCann, 317 U.S. 269, 279, 63
       S. Ct. 236, 242, 87 L. Ed. 268, 275 (1942)). Therefore, the district court at a
       minimum must be satisfied that Dalrymple understood the inherent risks involved
       in waiving the right to counsel. [State v. Hunnel, 125 Idaho 623, 626, 873 P.2d
       877, 880 1994.] While contemporaneous Faretta warnings are perhaps the most
       prudent means to ensure the defendant’s grasp of the disadvantages of self-
       representation, we look to the record as a whole to determine if Dalrymple


                                               6
        knowingly, intelligently, and voluntarily waived his constitutional right. [State v.
        Lovelace, 140 Idaho 53, 64, 90 P.3d 278, 289 (2003).]

Dalrymple, 144 Idaho at 634, 167 P.3d at 771.
        On the record here, Martin has not shown that the district court erred in denying Martin’s
claim that his waiver of counsel was not knowing, intelligent, and voluntary. Although the trial
court’s cautionary words in this case are perhaps not exemplary warnings of the hazards faced by
a pro se defendant at trial, the record as a whole shows that Martin made his election to waive
counsel voluntarily, with awareness of the perils of self-representation. In his colloquy with the
court, Martin expressed that he was already aware that his choice to represent himself was risky
because he lacked the training or experience of an attorney. Martin expressly acknowledged that
he was unaware of how to conduct the jury selection process, and he was then informed that he
would have to handle the jury selection and all other parts of the trial, with standby counsel
available only to answer questions.      The court mentioned that an attorney would have an
understanding of the rules of evidence and procedure, implicitly pointing out areas of knowledge
that Martin would not possess. The court also told Martin that self-representation is “not a
desirable thing” and that the court viewed it as “an ill-advised course.”          Given the Idaho
Supreme Court’s directive in Dalrymple that we look to the entire record to determine whether
the defendant understood the risk involved in waiving the right to counsel, we conclude that the
record here sufficiently demonstrates that Martin’s waiver of counsel was knowing, voluntary,
and intelligent.
        Martin argues, however, that the trial court’s warnings were inadequate because the court
“never told [him] that he would be held to the same standard as an attorney.” We disagree. At
the hearing, the district court told Martin that he alone would be responsible for conducting his
own trial; that he must file, give notice of, and argue pretrial motions in the ordinary course; that
Martin must file a list of any witnesses he wished to call at trial, and that an attorney would be
knowledgeable about the rules of evidence and procedure. Thus, the trial court did communicate
that Martin would be held to the standards of an attorney, albeit not in those specific words.
        Martin also complains that the trial court did not warn him of specific self-representation
challenges he ultimately faced because of his pretrial incarceration, including difficulties in
finding and subpoenaing witnesses, limited access to a law library, and lack of money for
postage and copying.


                                                 7
       All of these complaints are specific consequences that Martin experienced due to his
personal circumstances, including his pretrial incarceration. As far as we have found, neither the
United States Supreme Court nor Idaho courts have required such anticipatory, particularized
warnings tailored to the defendant’s individual circumstances. In addressing a defendant’s
argument that although Miranda 1 warnings he received were adequate to protect his Fifth
Amendment right during post-indictment questioning, they did not adequately inform him of his
Sixth Amendment right to counsel, the United States Supreme Court observed, “If [the
defendant] . . . lacked a full and complete appreciation of all of the consequences flowing from
his waiver, it does not defeat the State’s showing that the information it provided to him satisfied
the constitutional minimum.” Patterson v. Illinois, 487 U.S. 285, 294 (1988) (internal quotation
marks omitted).     In most cases, it likely would be impossible for any court to specifically
anticipate every obstacle, impediment, or disadvantage that might be encountered by a pro se
defendant. Therefore, we reject Martin’s assertion that the warnings here were insufficient
because they did not identify certain specific challenges that he ultimately encountered in the
course of his self-representation.
       Martin also contends that his situation is “remarkably similar” to that of the defendant in
State v. Jackson, 140 Idaho 636, 97 P.3d 1025 (Ct. App. 2004), where this Court reversed the
defendant’s conviction because of inadequacy of the trial court’s waiver warnings. Although the
underlying facts of the two cases are similar in that both Martin and Jackson were charged with
possession of methamphetamine, with respect to the facts relevant to the validity of their waivers
of counsel, the cases are dissimilar. In Jackson, 140 Idaho at 638, 97 P.3d at 1027, the trial court
gave no warnings whatsoever of the hazards of self-representation, and the record as a whole did
not otherwise disclose that the defendant appreciated the risks of proceeding pro se. See id. at
641, 97 P.3d at 1030. Here, in contrast, the trial court gave several warnings, and Martin himself
made statements showing that he understood many of the dangers and disadvantages of self-
representation.
       Lastly, Martin complains that the trial court did not tell him that by electing self-
representation he would forfeit claims of ineffective assistance of counsel (claims that he
unsuccessfully attempted to pursue in the instant action). This contention is based upon an


1
       See Miranda v. Arizona, 384 U.S. 436 (1966).


                                                 8
incorrect premise, that Martin was somehow deprived of his ability to make claims of ineffective
assistance of counsel for the work that his defense attorney did before Martin elected to defend
himself. Martin did in fact assert in this post-conviction action claims of ineffective assistance of
counsel and those claims were addressed on the merits. They were not rejected because he had
elected to later waive counsel, but because he had not met his burden to prove either deficient
performance by his prior defense attorney or prejudice from the alleged deficiencies.
       We conclude that the Faretta warnings given by the trial court in this case were
constitutionally adequate and that Martin has not shown that his waiver of counsel was not
knowing, voluntary, and intelligent.
       The district court’s judgment denying post-conviction relief is affirmed.
       Chief Judge GUTIERREZ and Judge GRATTON CONCUR.




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