               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 42557

LAWRENCE JAMES CROW,                            ) 2016 Opinion No. 25
                                                )
       Petitioner-Appellant,                    ) Filed: March 25, 2016
                                                )
v.                                              ) Stephen W. Kenyon, Clerk
                                                )
STATE OF IDAHO,                                 )
                                                )
       Respondent.                              )
                                                )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Bingham County. Hon. Darren B. Simpson, District Judge.

       Judgment denying petition for post-conviction relief, affirmed.

       Lawrence James Crow, Boise, pro se appellant.

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

MELANSON, Chief Judge
       Lawrence James Crow appeals from the district court’s judgment denying relief on
Crow’s petition for post-conviction relief. For the reasons set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       Crow was charged with attempted first degree murder, I.C. §§ 18-4001, 18-4002,
18-4003(a), 18-4004 and 18-306; domestic battery involving traumatic injury in the presence of
children, I.C. §§ 18-918(2)(a) and (b) and 18-918(4); use of a firearm in the commission of a
felony, I.C. § 19-2520; and infliction of great bodily injury, I.C. § 19-2520B. Crow entered an
Alford1 plea to attempted first degree murder and the state agreed to dismiss the remaining


1
       See North Carolina v. Alford, 400 U.S. 25 (1970).


                                                1
charges and enhancements. The district court sentenced Crow to a unified term of fifteen years,
with a minimum period of confinement of nine years. The district court also imposed a fine of
$5000 pursuant to I.C. § 19-5307.2 Crow filed an I.C.R. 35 motion for reduction of his sentence,
which was denied by the district court. On appeal, Crow argued that the $5000 fine was not
lawful, that his sentence was excessive, and that the district court erred by denying his I.C.R. 35
motion. In an unpublished opinion, this Court reduced the fine to $2500, the maximum lawful
amount, and otherwise affirmed Crow’s sentence and the denial of his I.C.R. 35 motion. State v.
Crow, Docket No. 40073 (Ct. App. Dec. 31, 2013).
       On April 5, 2013, Crow filed a pro se petition for post-conviction relief. After appointing
counsel for Crow, the district court stayed the post-conviction case pending completion of the
direct appeal. After the remittitur was filed in the appeal, the district court held an evidentiary
hearing on Crow’s post-conviction claims and denied Crow’s petition. Crow appeals.
                                                II.
                                  STANDARD OF REVIEW
       A petition for post-conviction relief initiates a proceeding that is civil in nature. I.C.
§ 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. State, 121 Idaho 918, 921,
828 P.2d 1323, 1326 (Ct. App. 1992). 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,




2
       Idaho Code Section 19-5307 provides that, for certain crimes of violence, the sentencing
court may impose (in addition to other penalties) a fine of up to $5000 which operates as a civil
judgment on behalf of the victim against the defendant. In the event of an attempted crime, the
maximum fine is $2500. I.C. § 18-306.

                                                2
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).
       A claim of ineffective assistance of counsel may properly be brought under the
post-conviction procedure act. Murray, 121 Idaho at 924-25, 828 P.2d at 1329-30. To prevail
on an ineffective assistance of counsel claim, the petitioner must show that the attorney’s
performance was deficient and that the petitioner was prejudiced by the deficiency. Strickland v.
Washington, 466 U.S. 668, 687-88 (1984); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221,
224 (Ct. App. 1995). To establish a deficiency, the petitioner has the burden of showing that the
attorney’s representation fell below an objective standard of reasonableness. Aragon v. State,
114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). Where, as here, the petitioner was convicted
upon a guilty plea, to satisfy the prejudice element, the petitioner must show that there is a
reasonable probability that, but for counsel’s errors, he or she would not have pled guilty and
would have insisted on going to trial. Plant v. State, 143 Idaho 758, 762, 152 P.3d 629, 633 (Ct.
App. 2006). 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 shortcomings capable of objective evaluation.
Howard v. State, 126 Idaho 231, 233, 880 P.2d 261, 263 (Ct. App. 1994).
       The United States Supreme Court, addressing the issue of counsel’s advice prior to a
defendant’s decision to plead guilty, has stated:
       [T]he decision to plead guilty before the evidence is in frequently involves the
       making of difficult judgments. All the pertinent facts normally cannot be known
       unless witnesses are examined and cross-examined in court. Even then the truth
       will often be in dispute. In the face of unavoidable uncertainty, the defendant and
       his counsel must make their best judgment as to the weight of the State’s case.
       Counsel must predict how the facts, as he understands them, would be viewed by
       a court. If proved, would those facts convince a judge or jury of the defendant’s
       guilt? . . . . Questions like these cannot be answered with certitude; yet a decision
       to plead guilty must necessarily rest upon counsel’s answers, uncertain as they
       may be. Waiving trial entails the inherent risk that the good-faith evaluations of a
       reasonably competent attorney will turn out to be mistaken either as to the facts or
       as to what a court’s judgment might be on given facts.
                That a guilty plea must be intelligently made is not a requirement that all
       advice offered by the defendant’s lawyer withstand retrospective examination in a
       post-conviction hearing.



                                                    3
McMann v. Richardson, 397 U.S. 759, 769-70 (1970). See also Dunlap v. State, 141 Idaho 50,
60-61, 106 P.3d 376, 386-87 (2004).
                                               III.
                                           ANALYSIS
       The issues identified in Crow’s pro se brief are summarized as follows: Crow argues that
his sentence was unlawfully enhanced for use of a firearm, that he was sentenced for a crime
which does not exist, that his plea was not knowing and voluntary and was coerced, that the
charging document overcharged him, and that his counsel was ineffective.
       With the exception of his claims of ineffective assistance of counsel, all of Crow’s claims
could have been raised on direct appeal but were not. The scope of post-conviction relief is
limited. Rodgers v. State, 129 Idaho 720, 725, 932 P.2d 348, 353 (1997). A petition for
post-conviction relief is not a substitute for an appeal. I.C. § 19-4901(b). A claim or issue which
was or could have been raised on appeal may not be considered in post-conviction proceedings.
Id.; Mendiola v. State, 150 Idaho 345, 348-49, 247 P.3d 210, 213-14 (Ct. App. 2010). Therefore,
we address Crow’s claims only in the context of his claims of ineffective assistance of counsel.
       A claim of ineffective assistance of counsel may properly be brought under the
post-conviction procedure act. Murray v. State, 121 Idaho 918, 924-25, 828 P.2d 1323, 1329-30
(Ct. App. 1992). To prevail on an ineffective assistance of counsel claim, the petitioner must
show that the attorney’s performance was deficient and that the petitioner was prejudiced by the
deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hassett v. State, 127 Idaho
313, 316, 900 P.2d 221, 224 (Ct. App. 1995). To establish a deficiency, the petitioner has the
burden of showing that the attorney’s representation fell below an objective standard of
reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). To establish
prejudice, the petitioner must show a reasonable probability that, but for the attorney’s deficient
performance, the outcome of the case would have been different. Id. at 761, 760 P.2d at 1177.




                                                4
A.     Sentence Enhancement for Use of a Firearm
       Crow argues that his sentence was unlawfully enhanced for the use of a firearm.3 Idaho
Code Section 19-2520 provides for an enhanced penalty when a firearm is used in the
commission or attempted commission of a murder.             However, Crow’s sentence was not
enhanced pursuant to I.C. § 19-2520 because that enhancement was dismissed as part of Crow’s
plea agreement. Therefore, to the extent Crow asserts that his counsel was ineffective for either
not objecting to the enhancement or otherwise allowing his sentence to be enhanced, this claim
has no merit and Crow has shown no error in the district court’s denial of this claim.
B.     Attempted First Degree Murder
       Crow argues that the crime to which he pled guilty, attempted first degree murder, does
not exist in Idaho. It appears that Crow may have conflated attempted felony murder with
attempted first degree murder. Crow relies on State v. Wood, 125 Idaho 911, 876 P.2d 1352
(1994) and State v. Pratt, 125 Idaho 594, 873 P.2d 848 (1994). Crow’s reliance on those cases is
misplaced. Idaho’s felony murder statute, I.C. § 18-4003(d), provides:
              Any murder committed in the perpetration of, or attempt to perpetrate,
       aggravated battery upon a child under twelve (12) years of age, arson, rape,
       robbery, burglary, kidnaping or mayhem, or an act of terrorism, as defined in
       section 18-8102, Idaho Code, or the use of a weapon of mass destruction,
       biological weapon or chemical weapon, is murder of the first degree.
       It is true that attempted felony murder is not a crime in Idaho. In order to commit felony
murder, the defendant need not have had the specific intent to kill. Rather, the defendant must
have had the specific intent to commit the predicate felony. State v. Dunlap, 155 Idaho 345, 364,
313 P.3d 1, 20 (2013). The Idaho Supreme Court has held that attempted felony murder is not a
crime in Idaho. Pratt, 125 Idaho at 601, 873 P.2d at 855. The Court, following its holding in
Pratt, set aside a conviction for attempted felony murder, but specifically left intact a conviction
based upon a guilty plea to attempted first degree murder. Wood, 125 Idaho at 917, 876 P.2d at
1358. In this instant case, the district court went to great lengths in an effort to explain felony
murder, in lay terms, to Crow. The district court correctly stated: “You can’t attempt to commit
a felony and not kill anybody and be charged with attempted felony murder.” To that, we simply


3
       This argument may also relate to Crow’s claim that the substantive charge to which he
pled guilty was not a crime and we address this below.

                                                 5
add in layman’s terms that, if you attempt to commit a willful, deliberate and premeditated
murder with malice aforethought, you can be charged with attempted first degree murder. I.C.
§§ 18-4003(a) and 18-306. Crow’s claim that the crime of attempted first degree murder does
not exist in Idaho has no merit. To the extent that Crow claims that he was actually charged with
and pled guilty to attempted felony murder, the record does not support that claim. Crow
apparently believes that, because he was initially charged with both attempted first degree
murder and domestic battery involving trauma in the presence of children (a felony), the
attempted murder charge was, necessarily, a charge of felony murder.         However, although he
was, at one time, charged with another felony is of no consequence.
       Crow also argues that the charge to which he actually pled guilty, attempted first degree
murder, is not a crime. Referring to the statutory element requiring a deliberate killing, he
argues that “a person cannot attempt to deliberate.” This claim is not supported by authority. A
party waives an issue on appeal if either argument or authority is lacking. Powell v. Sellers, 130
Idaho 122, 128, 937 P.2d 434, 440 (Ct. App. 1997). In any event, the claim has no merit.
        Crow’s claim that his trial counsel was ineffective for allowing him to plead guilty to a
nonexistent crime fails. Crow has shown no error in the district court’s denial of any of his
claims which were dependent upon his argument that the crime of attempted first degree murder
does not exist in Idaho or that he actually pled guilty to felony murder. Accordingly, the district
court did not err in denying Crow relief on his petition for post-conviction relief.
C.     Coerced or Involuntary Plea
       Crow testified that, early in the proceedings, the attorney who was then representing
Crow told him that the maximum penalty for the crimes with which he was charged was death.
He testified that this erroneous information was given in connection with his attorney’s advice
that Crow waive his right to a preliminary hearing and that his decision to waive his preliminary
hearing was, therefore, not voluntary and knowing. No evidence was offered to contradict
Crow’s testimony that his prior counsel told him he faced the death penalty. The district court
ruled that Crow’s guilty plea waived all nonjurisdictional defects and denied relief on that claim.
See State v. Herren, 157 Idaho 722, 727, 339 P.3d 1126, 1131 (2014) (ordinarily a voluntary and
knowing plea of guilty waives all nonjurisdictional defects in prior proceedings). Crow does not
challenge that decision.     However, Crow asserts that his counsel’s advice early in the


                                                  6
proceedings that he faced the death penalty rendered his guilty plea involuntary. 4 Crow failed to
present any argument or evidence to show that there was a reasonable probability that, but for
counsel’s (presumed) error, he would not have pled guilty and would have insisted on going to
trial. Accordingly, the district court did not err in its implicit denial of this claim.
        Crow also argues that his guilty plea was coerced because the charges against him
(including the enhancements) were “the same charges both arising out of the same criminal
conduct.” He argues that his counsel was ineffective for not challenging the information as
duplicative and that the multiple charges were a form of coercion which caused him to plead
guilty. In his words, he pled guilty, on his attorney’s advice, to attempted murder “for the
dismissal of the two enhancements when there should not have been two enhancements.” The
domestic battery charge was voluntarily dismissed by the prosecutor more than eleven months
before Crow pled guilty and could not have formed the basis for Crow’s claim of coercion. Both
enhancement charges (I.C. §§ 19-2520 and 19-2520B) were dismissed after Crow pled guilty
pursuant to the plea agreement.5
        In its ruling, the district court made reference to I.C. § 19-2520E, which prohibits
multiple enhancements for two or more charges arising from the same indivisible course of
conduct, but noted that Crow was only faced with one substantive charge. The district court held
that I.C. § 19-2520E was inapplicable to Crow’s case. Without explanation, the district court
stated that, if Crow had been convicted of both enhancements, the district court “would have had
to make a decision on how to apply only one of them.” The district court ultimately ruled:
                As I’ve indicated the charges were properly asserted, and as long as
        they’re properly asserted they can charge all the crimes they feel are appropriate.
        And so it was simply a decision for you to make whether you were going to roll
        the dice and face the penalties that you had been informed of or to make the guilty
        plea.


4
       The record discloses that the presumed erroneous advice was allegedly given many
months before the guilty plea and Crow was advised of the correct maximum penalty for
attempted first degree murder prior to his guilty plea.
5
        The enhancement under I.C. § 19-2025B was charged in connection with the domestic
battery charge which was dismissed months earlier. As the district court noted, if the state had
intended to proceed with the I.C. § 19-2520B enhancement, an amendment would have been
necessary to reflect that the enhancement related to the attempted first degree murder charge.

                                                   7
This was an implicit finding that counsel’s advice (that Crow’s sentence was subject to both
enhancements) was correct.
       Where a defendant is represented by counsel during the plea process and enters a plea
upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice
was within the range of competence demanded of attorneys in criminal cases. Dunlap, 141
Idaho at 60, 106 P.3d at 386. Specifically, a guilty plea is only valid where the plea represents a
voluntary and intelligent choice among the alternative courses of action open to the defendant.
Id. The Idaho Supreme Court decided, as a matter of first impression, that when a statute
unambiguously sets forth a particular penalty, an attorney has a duty to provide correct advice
regarding such penalty. Booth v. State, 151 Idaho 612, 618, 262 P.3d 255, 261 (2011).          The
facts in Booth are instructive. Booth was charged with first degree murder and the state elected
not to seek the death penalty. Prior to trial, the prosecutor informed defense counsel that he
intended to submit a motion requesting a verdict form instructing the jury that (if it found Booth
guilty of first degree murder) it must find whether there was a statutory aggravating
circumstance. It was defense counsel’s belief (a belief shared by the prosecutor and, perhaps, the
trial court) that a finding of aggravated circumstances, even when the state did not seek the death
penalty, would subject Booth to a mandatory life sentence. Defense counsel then advised Booth
to consider pleading guilty to first degree murder in exchange for the prosecutor agreeing not to
assert aggravated circumstances. Booth pled guilty following counsel’s advice. As the Supreme
Court noted, I.C. § 18-4004 provides that, in cases where the state chooses not to seek the death
penalty, the trial court is required to impose an indeterminate life sentence, with a minimum
period of confinement of at least ten years. The Court held that an attorney engages in deficient
performance by rendering advice about potential penalties during the plea process that is
inconsistent with the plain and unambiguous language of the statute. Booth, 151 Idaho at 619,
262 P.3d at 262.
        Here, defense counsel’s advice regarding I.C. § 19-2520 was correct. Section 19-2520
unambiguously provides for an extended sentence for any person convicted of murder who
“displayed, used, threatened, or attempted to use a firearm or other deadly weapon while
committing or attempting to commit the crime.” By the terms of the statute, the enhancement
applies even where the use of a firearm is an element of the offense. Thus, had Crow decided to


                                                8
go to trial and been found guilty of attempted first degree murder with the use of a firearm, his
sentence could have been extended by fifteen years.
        Idaho Code Section 19-2520B provides for an extended sentence for any person who
inflicts great bodily injury where the injury was intended or the act causing the injury was done
with reckless disregard for the safety of another person in the commission or attempted
commission of a felony. However, unlike I.C. § 19-2520, the statute provides that if great bodily
injury is an element of the offense for which the defendant is found guilty, the enhanced penalty
may not be imposed. Furthermore, the term “great bodily injury” need not actually be set forth
in the statute as an element of the crime nor is it necessary for it to appear in the indictment or
jury instructions. State v. Elison, 135 Idaho 546, 552-53, 21 P.3d 483, 489-90 (2001). In Elison,
in the context of an involuntary manslaughter case, our Supreme Court held that, because the
death of the victim in that case could not have been produced without inflicting great bodily
injury, it “would be incongruous to hold that serious bodily injury is not an element of
involuntary manslaughter.” Id. at 553, 21 P.3d at 490. The same reasoning applies to first
degree murder because death is an element of that crime.          It does not necessarily follow,
however, that attempted first degree murder is not subject to the I.C. § 19-2520B enhancement.
This is so because, by the plain terms of the statute, the sentence for an attempted first degree
murder which results in great bodily injury is subject to the enhancement unless great bodily
injury (or death) is an element of the crime for which the person was convicted. An attempt to
commit a crime occurs when a defendant attempts to commit the crime but fails or is prevented
from committing the crime. I.C § 18-306. Neither death nor serious bodily injury are elements
of attempted first degree murder.     According to the plain language of the statute, Crow’s
sentence for attempted first degree murder could have been subject to the I.C. § 19-2520B
enhancement.
       Because the crime of attempted first degree murder could have been subject to both
sentencing enhancements,6 counsel did not engage in deficient performance by advising Crow


6
        We recognize that it may seem inconsistent to allow an enhancement for an attempt to
commit murder when it could not have been allowed had the crime been completed. On the
other hand, one can commit the crime of attempted first degree murder without causing bodily
injury and it is entirely consistent to provide for an increased penalty when the crime does, in

                                                9
prior to his guilty plea that his sentence could have been enhanced by up to thirty-five years.
Thus, the district court did not err in denying Crow’s petition for post-conviction relief.
D.     Duplicative Charges
       Crow argues that the two substantive charges, attempted first degree murder and
domestic battery involving traumatic injury in the presence of children, were duplicative because
they both arose from the same conduct and “would have been a lesser included offense of each
other.” This claim appears to be asserted as an additional claim of coercion in connection with
Crow’s guilty plea. Crow presented no evidence or testimony that the two substantive charges
(as opposed to the two sentencing enhancements) resulted in a coerced plea. Accordingly, Crow
failed to meet his burden of proof on the issue of counsel’s deficient performance or resulting
prejudice on this issue. Thus, the district court did not err in denying Crow’s petition for
post-conviction relief.
E.     Other Ineffective Assistance of Counsel Claims
       Crow argues that his attorney did not file an appeal from the civil judgment entered
against him.   Presumably, Crow refers to the fine originally imposed in the amount of $5000
pursuant to I.C. § 19-5307 which operates as a civil judgment on behalf of the victim against the
defendant. An appeal was filed and the fine was reduced by this Court to $2500. This claim is
not supported by the record. To the extent that the district court implicitly denied this claim,
Crow has shown no error.
       Crow also claims that his counsel was ineffective because Crow was not permitted to
testify at a hearing held on his I.C.R. 35 motion, but Crow did not support this claim with any
evidence. In any event, such motions are ordinarily decided without testimony unless otherwise
ordered by the court. The district court commented on this claim, noting that “this court does not
take testimony, evidence set for a Rule 35. If there’s any new evidence, it’s presented through
affidavit form.” Thus, the district court implicitly ruled that Crow’s motion to testify at the



fact, result in bodily injury. We recognize, too, that I.C. § 19-2520E evinces a legislative policy
against the imposition of multiple enhanced sentences “where the crimes arose out of the same
indivisible course of conduct” but that statute, by its plain terms, only applies where there is a
conviction for two or more crimes. These are matters best addressed by the legislature, not this
Court.

                                                 10
I.C.R. 35 hearing would not have been successful. In a post-conviction proceeding challenging
an attorney’s failure to pursue a motion in the underlying criminal action, the district court may
consider the probability of success of the motion in question in determining whether the
attorney’s inactivity constituted incompetent performance. Boman v. State, 129 Idaho 520, 526,
927 P.2d 910, 916 (Ct. App. 1996). Where the alleged deficiency is counsel’s failure to file a
motion, a conclusion that the motion, if pursued, would not have been granted by the trial court
is generally determinative of both prongs of the Strickland test. Boman, 129 Idaho at 526, 927
P.2d at 916.
       Crow argues that his attorney was ineffective for failing to inform him of a lesser
included offense, but he has neither alleged nor proven that, but for counsel’s error, he would not
have pled guilty. Therefore, he has not met his burden as to the prejudice alleged deficiency, and
the district court did not err in denying post-conviction relief.
                                                 IV.
                                          CONCLUSION
       Crow has not shown that his sentence was unlawfully enhanced for the use of a firearm
because the enhancement was dismissed. Crow also failed to show that his trial counsel was
ineffective for allowing him to plead guilty to a nonexistent crime--first degree murder is a crime
in Idaho. Crow has not shown that his trial counsel’s performance was deficient when counsel
advised Crow, prior to his guilty plea, that his sentence could have been enhanced by up to
thirty-five years. Crow has not met his burden of showing that his charges were duplicative.
Thus, Crow has not shown that the district court erred in denying his petition for post-conviction
relief. Accordingly, we affirm the judgment. No costs or attorney fees are awarded on appeal.
       Judge GRATTON and Judge HUSKEY, CONCUR.




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