               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38669

PHILIP A. TURNEY,                                   )   2012 Unpublished Opinion No. 547
                                                    )
       Petitioner-Appellant,                        )   Filed: June 29, 2012
                                                    )
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STATE OF IDAHO,                                     )   THIS IS AN UNPUBLISHED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. Cheri C. Copsey, District Judge.

       Judgment dismissing petition for post-conviction relief, affirmed.

       Philip A. Turney, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Judge
       Phillip A. Turney appeals from the judgment summarily dismissing his petition for
post-conviction relief. For the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       Turney was charged with two counts of aggravated driving under the influence (DUI) and
being a persistent violator after crashing his taxi into a stationary police patrol car, causing the
patrol car to collide with another patrol car. Two officers were severely injured. Turney’s
defense at trial was that he was not the driver of the taxi. The jury found him guilty as charged,
and this Court affirmed the judgment of conviction and his sentence. State v. Turney, 147 Idaho
690, 214 P.3d 1169 (Ct. App. 2009).
       Turney filed a timely petition for post-conviction relief, alleging, among other claims, the
prosecutor committed error by relying on perjured testimony of one of the injured officers, who
was later fired from the police force for unrelated misconduct, and ineffective assistance of his


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trial counsel because trial counsel failed to interview or call to testify Travis Anderson, an
arrestee who was in the back of one of the patrol cars at the time of the crash. After the State
moved to dismiss the petition, Turney requested appointment of counsel. The district court
denied the motion for appointment of counsel, finding Turney’s claims were frivolous. Three
weeks later, the court entered an order conditionally dismissing the petition, giving Turney
twenty days to respond. Turney filed a response, including an affidavit and exhibits. The court
summarily dismissed Turney’s petition. Turney now appeals.
                                                   II.
                                              ANALYSIS
          Turney contends the district court erred in denying his request for appointment of
post-conviction counsel because he presented sufficient evidence in regard to his claim that his
trial counsel was ineffective for failing to interview an eyewitness to the incident. He also
contends the district court erred in summarily dismissing his claim regarding the prosecution’s
use of allegedly perjured testimony of a police officer because he raised a genuine issue of
material fact. We address both claims pursuant to the standard applicable to appointment of
post-conviction counsel because, as the State points out, failure to present sufficient evidence to
meet that standard will necessarily mean the petitioner failed to meet the higher standard
necessary to survive summary dismissal. See Gonzales v. State, 151 Idaho 168, 174, 254 P.3d
69, 75 (Ct. App. 2011) (noting that failure to present evidence sufficient to warrant appointment
of counsel “compels a conclusion that the [petition] did not raise a genuine issue of material
fact”).
          If a post-conviction petitioner is unable to pay for the expenses of representation, the trial
court may appoint counsel to represent the petitioner in preparing the petition. Idaho Code
§ 19-4904. The decision to grant or deny a request for court-appointed counsel lies within the
discretion of the district court. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111
(2004). When a district court is presented with a request for appointed counsel, the court must
address this request before ruling on the substantive issues in the case. Id.; Fox v. State, 129
Idaho 881, 885, 934 P.2d 947, 951 (Ct. App. 1997). The district court abuses its discretion
where it fails to determine whether a petitioner for post-conviction relief is entitled to
court-appointed counsel before denying the petition on the merits. See Charboneau, 140 Idaho
at 793, 102 P.3d at 1112.


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       In determining whether to appoint counsel pursuant to section 19-4904, the district court
should determine if the petitioner is able to afford counsel and whether the situation is one in
which counsel should be appointed to assist the petitioner. Charboneau, 140 Idaho at 793, 102
P.3d at 1112. In its analysis, the district court should consider that petitions filed by a pro se
petitioner may be conclusory and incomplete. See id. at 792-93, 102 P.3d at 1111-12. Facts
sufficient to state a claim may not be alleged because they do not exist or because the pro se
petitioner does not know the essential elements of a claim. Id. Some claims are so patently
frivolous that they could not be developed into viable claims even with the assistance of counsel.
Newman v. State, 140 Idaho 491, 493, 95 P.3d 642, 644 (Ct. App. 2004). However, if a
petitioner alleges facts raising the possibility of a valid claim, the district court should appoint
counsel in order to give the petitioner an opportunity to work with counsel and properly allege
the necessary supporting facts. Charboneau, 140 Idaho at 793, 102 P.3d at 1112.
       Turney’s prosecutorial misconduct claim is based on his assertion that the State presented
perjured testimony at trial--specifically, the testimony of one of the injured officers who
identified Turney as the driver of the taxi. Turney argues there is “newly-discovered” evidence
in that the officer was later terminated from the Boise Police Department for “conduct
unbecoming an officer, violations of law and making inconsistent statements during an internal
investigation” in an unrelated incident, which Turney argues raises doubts about the veracity of
the officer’s testimony at Turney’s trial.
       While Turney couches this as a prosecutorial misconduct claim, the substance of his
assertion is that he is entitled to a new trial based on newly discovered evidence as to the
officer’s veracity. The request for a new trial in a post-conviction proceeding based on newly
discovered evidence is the same as a motion for new trial subsequent to a jury verdict. Whiteley
v. State, 131 Idaho 323, 326, 955 P.2d 1102, 1105 (1998). Before a new trial can be granted, and
irrespective of the form of the request, new evidence must satisfy the four-part test set forth in
State v. Drapeau, 97 Idaho 685, 551 P.2d 972 (1976):
       A motion based on newly discovered evidence must disclose (1) that the evidence
       is newly discovered and was unknown to the defendant at the time of trial; (2) that
       the evidence is material, not merely cumulative or impeaching; (3) that it will
       probably produce an acquittal; and (4) that failure to learn of the evidence was
       due to no lack of diligence on the part of the defendant.




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Id. at 691, 551 P.2d at 978. Applying the Drapeau test, the district court concluded in its order
denying appointment of counsel that Turney’s claim could not meet the second prong that
requires the new evidence to be material, not merely impeaching. We agree--evidence as to the
officer’s veracity in a later, completely unrelated proceedings could only be used, if at all, for
impeachment purposes. Thus, even if Turney’s assertions as to the officer’s veracity are taken as
true, these assertions would be insufficient to satisfy Drapeau and result in a new trial.
Accordingly, the district court did not err in concluding Turney presented no possibility of a
claim in this regard.
       Turney’s claim that his trial counsel rendered ineffective assistance pertains to counsel’s
alleged failure to interview Anderson or call him to testify at trial. To prevail on an ineffective
assistance of counsel claim, the defendant must show the attorney’s performance was deficient
and the defendant 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 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 trial would have been
different. Id. at 761, 760 P.2d at 1177. The failure of an attorney to properly investigate a case
may constitute a deficiency in representation. Plant v. State, 143 Idaho 758, 762, 152 P.3d 629,
633 (Ct. App. 2006). However, 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 (1994).
       In its order denying appointment of counsel, the district court found Turney did not
support his claim with admissible evidence as to what Anderson would have testified to and,
since the court was not required to accept mere conclusory allegations, unsupported by
admissible evidence, concluded Turney failed to meet his burden to entitle him to appointment of
counsel. However, when considering a motion for appointment of counsel, the district court
must do more than determine whether the petition alleges a valid claim; the court must also
consider whether circumstances prevent the petitioner from making a more thorough
investigation into the facts. Swader v. State, 143 Idaho 651, 654, 152 P.3d 12, 15 (2007). An


                                                4
indigent defendant who is incarcerated in the penitentiary would almost certainly be unable to
conduct an investigation into facts not already contained in the court record. Id. Likewise, a
pro se petitioner may be unable to present sufficient facts showing his or her counsel’s
performance was deficient or that such deficiency prejudiced the defense. Id. at 654-55, 152
P.3d at 15-16. Such a showing will often require the assistance of someone trained in the law.
Id. at 655, 152 P.3d at 16. Therefore, the trial court should appoint counsel if the petition alleges
facts showing the possibility of a valid claim such that a reasonable person with adequate means
would be willing to retain counsel to conduct a further investigation into the claim. Id. The
investigation by counsel may not produce evidence sufficient to survive a motion to dismiss, but
the decision to appoint counsel and the decision on the merits of the petition if counsel is
appointed are controlled by two different standards. Id.
       Here, in response to the district court’s order denying appointment of counsel, Turney
averred that his efforts to obtain any affidavits, presumably including one from Anderson, or the
cooperation of his trial counsel had been unsuccessful and, therefore, he could not provide the
court with evidence the court had indicated was missing in its previous order. Certainly, as we
have recognized in previous cases, Turney’s ability to obtain admissible evidence as to what
Anderson would have testified to would be severely hampered by the fact he was an indigent
prisoner acting pro se. See Swader, 143 Idaho at 654, 152 P.3d at 15. There is no indication in
the record that the district court took this into account when determining appointment of counsel
was not required.
       However, we affirm the district court’s denial of Turney’s motion for appointment of
counsel because the record disproves his claim of ineffective assistance. During the trial, shortly
after the State rested, the prosecutor and defense counsel engaged in a discussion with the district
court regarding Anderson. The prosecutor stated as follows:
       I had anticipated Travis Anderson was going to be here this morning. He did not
       make our appointment. He had been called earlier during the trial and was very
       frustrated because he didn’t get put on that day. I made the decision to go ahead
       without him and conclude the State’s case, but after I made that decision my
       secretary handed me a subpoena that [defense counsel] had apparently at some
       point given our office to serve Mr. Anderson. I had never served him. He was
       very cooperative with the State, but the only contact means I had was his phone
       number. He has already complained vigorously to me that shortly after the
       accident someone was calling representing themselves to be related to the
       defendant and begging for assistance because the defendant has a child and


                                                 5
       needed his help and he was very upset that someone had given them the
       number. . . . [H]e’s been adamant that I’m not allowed to give that out. Other
       than the phone number, I don’t know how to reach him. He has not responded to
       my investigator’s calls at all today. I don’t know an address for him. I just had
       the contact number and he did not appear as he said he would. I think frankly it is
       frustration because he was around the courthouse and had not been able to testify
       earlier. It cost him time from work. . . . He has simply not appeared. I have no
       means other than leaving messages to reach him . . . .

It was established that the State had received the subpoena from defense counsel approximately
six days earlier, but the prosecutor was only made aware of it that day. The district court ordered
the prosecutor to attempt to locate Anderson and serve the subpoena, to which the prosecutor
agreed. Upon being asked if the course of action was satisfactory to him, defense counsel
replied, “Well, Judge, as you may know from my previous representations to you, we have tried
to reach him before.” (Emphasis added). No further reference to Anderson was made on the
record and he was not called to testify.
       Thus, it is evident on the record that defense counsel had attempted to contact Anderson
and went so far as to subpoena him during trial. To the extent Anderson could not be located, as
represented by the prosecutor, this does not amount to deficient performance of counsel which,
to merit relief, must have “so undermined the proper functioning of the adversarial process that
the trial cannot be relied upon as having produced a just result.” State v. Beorchia, 135 Idaho
875, 880, 26 P.3d 603, 608 (Ct. App. 2001). 1 Accordingly, the district court did not err in
refusing to appoint counsel as to this claim.
                                                III.
                                           CONCLUSION
       The district court did not err in refusing to appoint counsel as to Turney’s claim regarding
the injured officer’s testimony because even if Turney’s assertions as to the officer’s veracity are
taken as true, these assertions would be insufficient to entitle him to a new trial because they go
solely to issues of credibility. We also affirm the district court’s denial of counsel as to Turney’s
ineffective assistance of counsel claim because the record belies his assertion that counsel


1
       We also note, as discussed above, strategic decisions of counsel will not be
second-guessed. Given that the prosecutor intended to present the testimony of Anderson at trial,
but was thwarted only when Anderson did not show up, it is highly doubtful Anderson’s
testimony would have been helpful to Turney.

                                                 6
performed deficiently by failing to interview Anderson or call him to testify. Accordingly, the
district court’s judgment summarily dismissing Turney’s post-conviction petition is affirmed.
       Judge LANSING and Judge MELANSON CONCUR.




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