               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 39738

BRANDON GOULD,                                  )     2013 Unpublished Opinion No. 736
                                                )
       Petitioner-Appellant,                    )     Filed: October 31, 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STATE OF IDAHO,                                 )     THIS IS AN UNPUBLISHED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. Ronald J. Wilper, District Judge.

       Judgment denying petition for post-conviction relief, affirmed.

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

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent. Jessica M. Lorello argued.
                 ________________________________________________
GUTIERREZ, Chief Judge
       Brandon Gould appeals from the judgment denying his petition for post-conviction relief.
Specifically, Gould asserts the district court erred by applying incorrect legal standards to
evaluate his ineffective assistance of counsel claims and, when evaluated under the correct
standard, the district court erred by denying his post-conviction petition. For the reasons that
follow, we affirm.
                                               I.
                                 FACTS AND PROCEDURE
       Following allegations by Gould’s seven-year-old daughter that Gould had inappropriate
sexual contact with her, a grand jury indicted Gould on one count of lewd conduct with a minor
child under sixteen and one count of sexual abuse of a child under the age of sixteen years. At
trial, the State largely based its case on the testimony of the daughter, her mother, and case
workers who had interviewed the daughter. Defense counsel tried the case on the theory that the



                                               1
accusations were a fabrication by the mother and perpetuated by the daughter. Defense counsel
attempted to highlight inconsistencies in the daughter’s testimony and also presented witnesses
who testified that the mother was known to be a liar, had made prior false allegations of sexual
abuse of her two daughters against other individuals, and was hypersensitive about the possibility
of sexual abuse of her daughters, overprotecting, and controlling. Defense counsel also moved
for a mistrial on the basis that the prosecutor elicited testimony from the mother that
misrepresented the state of Gould and the mother’s marriage at the time the allegations surfaced.
The mother testified that the marriage was fairly stable in that there had been no talk of divorce
and that any problems mainly consisted of disagreements about finances. Defense counsel
argued that there was evidence of other marital discord, but to introduce such evidence and
impeach the mother would be highly prejudicial to Gould. The district court denied the motion.
The district court also ruled that it would not limit the State’s inquiry into impeachment
evidence--if defense counsel chose to introduce it--under Idaho Rule of Evidence 403.
       At the close of the trial, the jury found Gould guilty of lewd conduct with a minor under
sixteen, Idaho Code § 18-1508, and was unable to reach a unanimous verdict on the second
count. Defense counsel made a motion for a new trial pursuant to Idaho Code § 19-2406(5),
made on the same basis as the motion for a mistrial previously sought and denied. The district
court denied the motion and imposed a unified sentence of ten years, with three years
determinate. Gould directly appealed, challenging only his sentence, and this Court affirmed in
an unpublished opinion. Gould v. State, Docket No. 35797 (Ct. App. Oct. 27, 2009).
       Thereafter, Gould timely filed a pro se petition for post-conviction relief. The State filed
an answer and a motion for summary dismissal. Gould filed a motion for a stay of proceedings
and sought leave to amend his petition, which the district court granted. After Gould filed an
addendum to his petition, the State again answered and filed a motion for summary dismissal of
the addendum.      Gould raised three overarching claims in his petition and addendum:
prosecutorial misconduct, ineffective assistance of defense counsel, and ineffective assistance of
appellate counsel. In ruling on the motions for summary dismissal, the district court dismissed
the claim of prosecutorial misconduct, finding that the claim could and should have been raised
on direct appeal, but determined that Gould was entitled to an evidentiary hearing on the two
claims of ineffective assistance of counsel.




                                                2
       At the evidentiary hearing, Gould presented evidence and argued that defense counsel
was ineffective in several ways, including that defense counsel failed to obtain medical records
of one of the daughters and failed to obtain records from the Idaho Department of Health and
Welfare (IDHW). Gould argued that the medical records were pertinent to bolstering a defense
witness’s testimony that two years prior to trial, the mother brought the other daughter into the
emergency room on suspicion of sexual abuse, which the emergency room physician deemed to
be unsubstantiated. The records from the IDHW, Gould argued, would have indicated that the
mother applied for state welfare benefits prior to the allegations by the daughter and would
support the defense’s theory that the accusations were part of some plan by mother to end the
marriage rather than the impetus for the divorce. Gould also presented evidence and argued that
his appellate counsel was ineffective for failing to appeal the denial of the motion for a mistrial
and the district court’s ruling that it would not limit the State’s inquiry into impeachment
evidence under Idaho Rule of Evidence 403. The district court denied the petition, and Gould
timely appeals. He asserts the district court erred by applying incorrect legal standards to
evaluate his ineffective assistance of counsel claims. Gould further asserts that, when evaluated
under the correct standard, the district court erred by denying Gould’s post-conviction petition.
                                                II.
                                  STANDARD OF REVIEW
       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); Baxter v. State, 149 Idaho 859, 861, 243 P.3d 675, 677 (Ct.
App. 2010). 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. Idaho Rule of Civil Procedure 52(a); Dunlap v. State, 141 Idaho 50, 56, 106
P.3d 376, 382 (2004); 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.
Dunlap, 141 Idaho at 56, 106 P.3d at 382; 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. Baxter, 149 Idaho at 862, 243 P.3d at 678.




                                                 3
                                               III.
                                           ANALYSIS
A.     Whether the District Court Erred by Applying Incorrect Legal Standards to
       Evaluate Gould’s Ineffective Assistance of Counsel Claims
       It is well-established that in order to succeed on a claim of ineffective assistance of
counsel in a post-conviction petition, 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); Self v. State, 145 Idaho 578, 580, 181 P.3d 504, 506 (Ct. App.
2007). 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); Knutsen v. State, 144 Idaho 433, 442, 163 P.3d 222, 231
(Ct. App. 2007). To establish prejudice, the petitioner must show a reasonable probability that,
but for the attorney’s deficient performance, the outcome of the proceeding would have been
different. Aragon, 114 Idaho at 761, 760 P.2d at 1177; Knutsen, 144 Idaho at 442, 163 P.3d at
231. This Court has long adhered to the proposition that tactical or strategic decisions of 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. Gonzales v.
State, 151 Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011).
       Gould asserts that the district court erred by applying incorrect legal standards to evaluate
his ineffective assistance of counsel claims. Gould argues that the district court did not use an
objective standard of reasonableness when determining whether his defense and appellate
counsel were deficient and instead focused on whether counsel’s performance was “negligent,”
“fell below the standard of practice and the standard of care,” or was “akin to making a mistake
that was so fundamental that it was as though Mr. Gould had no attorney at all.” Gould contends
that the district court’s focus on civil standards of negligence, professional malpractice, and
professional negligence are inapplicable here and do not reflect the objective standard of
reasonableness test contained within the Strickland standard. Gould compares the district court’s
consideration of whether counsel’s mistakes were so fundamental as to make it as though Gould
did not have counsel at all to the standard in United States v. Cronic, 466 U.S. 648, 659 (1984),
which allows for a presumption of prejudice in certain cases.




                                                4
       The State argues that the district court expressly stated the Strickland standard and that
Gould’s interpretation of the district court’s statements in applying that standard are insufficient
to show that the district court erred. Further, the State asserts the district court’s use of the terms
negligence and malpractice relates to the standards of practice among attorneys and is consistent
with Strickland and the manner in which it has been applied in other cases:                 prevailing
professional norms are used as a comparison to whether defense counsel’s performance in a
particular case fell below an objective standard of reasonableness.
       Following the presentation of evidence and argument from counsel at Gould’s hearing,
the district court orally ruled on the ineffective assistance of counsel claims:
               The standard that the court has to apply in making a decision regarding
       an allegation of ineffective assistance of counsel as a ground for relief is set forth,
       as the attorneys well know in the well known case of Strickland versus
       Washington. It’s a two-step analysis, and the first is to determine whether or not
       the trial attorney, and in this case not only the trial attorney but the appellate
       attorney, were ineffective in that they failed to provide competent legal counsel on
       behalf of their client.
               ....
               What was absent in this trial was evidence that the--evidence even in the
       form of an expert opinion, for example, that the performance of either of these
       attorneys, representing Mr. Gould, was negligent or that the services that they
       provided for Mr. Gould fell below the standard of practice and the standard of
       care for attorneys practicing their respective professions, trial attorney and
       appellate attorney, in this community during the relevant times.
               It’s clear that Mr. Gould and his family are disappointed by the decision of
       the jury. The jury found you, Mr. Gould, guilty beyond a reasonable doubt, and it
       was not caused by incompetent representation by [defense counsel]. It was the
       jury rejecting the theory of the case.
(Emphasis added.)      The district court also addressed the specific issues that Gould raised
concerning his defense and appellate counsel, respectively. With regard to defense counsel and
his alleged ineffective assistance by failing to obtain certain records, the district court stated the
following:
       [T]he question is, whether or not [defense counsel]’s failure to obtain that record
       [of an emergency room visit] in an attempt to impeach [the mother] was
       negligent, was akin to making a mistake that was so fundamental that it was as
       though Mr. Gould had no attorney at all. And I don’t find it to be the case.
               . . . I heard argument but no testimony to support such a claim, that it
       constituted professional malpractice for a trial attorney to fail to get his hands on
       that record.
               The other records that were at issue here, for example, the Health &
       Welfare record that may have supported the theory of the defendant’s case that

                                                  5
       [the mother] had applied for some benefits at the Department of Health & Welfare
       perhaps the day before she made the disclosure, or earlier in the day at least
       before she made the disclosure, similarly is a--it may have done some good for
       the defense. It may not have done some good.
               But what I didn’t hear . . . during this hearing, was evidence that failure to
       obtain that record in and of itself constituted professional negligence and
       ineffective assistance of counsel.
(Emphasis added.) Because the district court found that defense counsel’s performance was not
“negligent,” it determined that it did not need to “get to the second question of the Strickland
analysis, . . . whether or not deficient performance of an attorney was prejudicial.” The district
court summarily addressed the performance of appellate counsel: “Again, there’s no evidence in
this record that failure to [raise the issues on appeal] constituted deficient performance on the
part of appellate counsel. And, again, therefore, we don’t get to the second prong of the
Strickland v. Washington analysis which is whether or not there was any prejudice.”
       Gould relies on the emphasized language in the district court’s oral ruling to argue that
the court failed to apply the proper analysis of whether counsel’s performance was deficient.
The argument is without merit. As noted above, Strickland puts forward an objective standard of
reasonableness for judging whether errors in an attorney’s performance are serious enough to
render that performance deficient. Workman v. State, 144 Idaho 518, 525, 164 P.3d 798, 805
(2007). Within that standard, “[t]he proper measure of attorney performance remains simply
reasonableness under prevailing professional norms.” Id. (quoting Strickland, 466 U.S. at 688).
Accordingly, a court may reference professional rules of conduct and practice when determining
whether counsel’s performance was unreasonable. See, e.g., Missouri v. Frye, 566 U.S. ___,
____, 132 S. Ct. 1399, 1408 (2012) (“Though the standard for counsel’s performance is not
determined solely by reference to codified standards of professional practice, these standards can
be important guides.”); Griffith v. State, 121 Idaho 371, 373-74 nn.1-3, 825 P.2d 94, 96-97
nn.1-3 (Ct. App. 1992) (referencing the Idaho Rules of Professional Conduct in determining that
counsel’s performance was not deficient). The same considerations are at play in malpractice
and disciplinary actions against criminal defense attorneys. See, e.g., Idaho State Bar v. Clark,
153 Idaho 349, 283 P.3d 96 (2012) (determining under the rules of professional conduct whether
disciplinary action was warranted against a defense attorney for his representation of a client on
a charge of driving under the influence). Deficient performance can also be the basis for a
malpractice action. See Schwartz v. State, 145 Idaho 186, 191, 177 P.3d 400, 405 (Ct. App.


                                                 6
2008) (concluding that a petition for post-conviction relief was untimely and although counsel’s
failure to take any action on the defendant’s behalf may constitute deficient performance, the
defendant was left with no remedy other than perhaps an action for malpractice); Mellinger v.
State, 113 Idaho 31, 35, 740 P.2d 73, 77 (Ct. App. 1987) (J. Burnett, specially concurring)
(noting dismissal of a timely-filed petition for post-conviction relief due to ineffective assistance
of counsel without a relation-back doctrine would leave a defendant no alternative but to sue the
attorney for malpractice). We have also equated the test of whether counsel’s performance was
outside the wide range of professional norms with the question of whether the defendant received
“reasonably competent assistance of counsel.” Laughlin v. State, 139 Idaho 726, 728, 85 P.3d
1125, 1127 (Ct. App. 2003); see also Aragon, 114 Idaho at 761, 760 P.2d at 1177 (noting the
right to counsel is the right to “reasonably competent assistance of counsel”). Thus, the district
court’s considerations of whether Gould’s defense counsel failed to provide competent legal
counsel, whether his performance fell below the standard of practice, or whether errors
constituted professional malpractice or negligence were not improper; nor were those
considerations outside the scope of the Strickland standard. 1        Moreover, the district court
expressly noted the Strickland standard encompassing both deficient representation and
prejudice, and in the written order following the evidentiary hearing, the district court stated,
“The Court finds neither . . . Mr. Gould’s trial attorney, nor . . . Mr. Gould’s appellate attorney,
were deficient in their representation of Mr. Gould.”
       Gould’s argument that the district court applied the standard from Cronic is also
unavailing. In Workman, the Idaho Supreme Court reviewed both the requirements of Strickland
and Cronic. The Workman Court noted that Cronic allows for a presumption of prejudice on an
ineffective assistance of counsel claim when certain circumstances exist, two of which are where
there is a complete denial of counsel at a critical stage of trial or where counsel entirely fails to
subject the prosecution’s case to meaningful adversarial testing. Workman, 144 Idaho at 525,
164 P.3d at 805. When evidence falls short of establishing such a circumstance, the actions of



1
        Although the district court also referenced standards of professional conduct, the court
properly applied, referenced, and made its decision based on the Strickland standard. To avoid
possible confusion in matters where ineffective assistance of counsel is raised, district courts
should make clear that they are relying on the standard set forth in Strickland and the elements
articulated in Strickland.

                                                 7
counsel are subject to evaluation under Strickland, not Cronic. Workman, 144 Idaho at 527, 164
P.3d at 807.
       Here, the district court’s comparison of whether errors by defense counsel were “akin to
making a mistake that was so fundamental that it was as though Mr. Gould had no attorney at
all,” is similar to Strickland’s requirement that to prove counsel’s performance was deficient, the
defendant must show “that counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.
The line between complete failure of defense counsel addressed in Cronic and deficient
performance resulting in a lack of counsel addressed in Strickland is not a clear one, but in light
of the context of the district court’s oral ruling and subsequent written order, the district court did
not err in applying the proper legal standard. 2
B.     Whether the District Court Erred by Finding Counsel’s Assistance Was Not
Deficient
       1.      Defense counsel
       Gould asserts that his defense counsel’s performance was deficient because counsel
failed to obtain and examine certain records. In particular, to support the defense’s theory that
the allegations were false, Gould contends that defense counsel should have obtained medical
records showing a past history of sexual abuse allegations of the daughter that the mother made
against various individuals, one of which was based on an injury nearly identical to the injury
alleged in this case. Additionally, Gould argues that the IDHW records showing that the mother
had applied for welfare benefits prior to the accusations against Gould were highly relevant in
showing that the mother fabricated the story of abuse.
       The State counters that Gould has failed to show why obtaining the medical records was
unreasonable in light of the fact that Gould’s sister testified in regards to the prior allegations of
sexual abuse by the mother. As to the counsel’s alleged deficient performance for failing to
obtain the IDHW records, the State points to defense counsel’s testimony that even had he
obtained such records, he may not have introduced them for fear that the mother’s need of
benefits would elicit sympathy from a jury. In short, the State argues that Gould has not shown


2
        As we noted in our footnote above, district courts hearing an ineffective assistance of
counsel claim should be mindful of the language used in Strickland and should use the standard
established by Strickland, unless the circumstances of Cronic are involved.

                                                   8
that the failure to obtain the records to support the defense’s theory of the case or to impeach the
mother constituted deficient performance.
       Generally, defense counsel is bound to conduct a prompt and thorough investigation of
his or her case. Murphy v. State, 143 Idaho 139, 146, 139 P.3d 741, 748 (Ct. App. 2006).
Counsel has a duty to make a reasonable investigation or to make a reasonable decision that
makes particular investigations unnecessary. Estes v. State, 111 Idaho 430, 434, 725 P.2d 135,
139 (1986). Whether a decision regarding investigation is reasonable is dependent on the
circumstances, applying significant deference to the judgment of counsel. Id. Moreover, a fair
assessment of attorney performance requires a court to evaluate the conduct from counsel’s
perspective at the time the decision was made in order to avoid the distorting effects of hindsight.
Id. “It is generally agreed that the decision of what evidence should be introduced at trial is
considered strategic or tactical.” Bagshaw v. State, 142 Idaho 34, 38, 121 P.3d 965, 969 (Ct.
App. 2005). Thus, a decision of whether or not to introduce evidence or call a witness is one that
this Court will not second guess absent evidence of counsel’s inadequate preparation, ignorance
of the law, or other shortcomings in preparation for trial that are capable of objective evaluation.
See State v. Payne, 146 Idaho 548, 563, 199 P.3d 123, 138 (2008).
       Gould testified at the evidentiary hearing that both he and his sister spoke with defense
counsel about the fact that, a few years before the charges arose against Gould, the mother had
taken one of the daughters to the emergency room for examination due to suspicion of sexual
abuse by a daycare worker. The daughter’s injury at that visit was nearly identical to the injury
the daughter, who was the subject of this case, had at the time she made allegations of abuse by
Gould. Gould testified that medical records showing the mother’s prior concern of sexual abuse,
which the emergency room physician deemed to be unsubstantiated, would have been useful
impeachment evidence at trial. Gould further testified, however, that he did not ask defense
counsel to obtain the medical records. As to the IDHW records, Gould testified that the records
would show that the mother applied for benefits the same day accusations were made against
Gould. He argued it would have lent credibility to the defense’s theory that the mother was
planning the accusations against him and made arrangements beforehand to be financially taken
care of. Gould did not testify to the precise time when he learned the date that the mother had
applied for benefits, but he did know that she was receiving benefits within a week of the
accusations and prior to trial.


                                                 9
       Defense counsel also testified. He was aware of the prior emergency room visit at the
time of trial and elicited testimony from Gould’s sister that it was in regards to the mother’s
suspicions of child abuse. Defense counsel also testified that he was able to call a number of
witnesses who introduced evidence of both the mother’s hypersensitivity to the possibility of
sexual abuse of her daughters (including prior accusations against other individuals) and the
mother’s reputation for being untruthful. In other words, defense counsel was able to impeach
some of the mother’s testimony through the defense’s witnesses. He testified that had he been
asked to obtain a medical record, he would have. Defense counsel also testified that in hindsight,
the document may have been useful to impeach the mother when, while testifying at trial, she
denied that the emergency room visit had anything to do with suspected sexual abuse of her
daughter. In regards to the IDHW records, defense counsel testified that they may have been
relevant and useful in showing that the mother was planning something in advance, but he also
testified that it is common for individuals in the mother’s position to seek benefits when
accusations arise and he would have hesitated to introduce such evidence in order to avoid
making the mother more sympathetic to the jury.
       The district court did not err in finding that Gould failed to show that defense counsel’s
performance was deficient. Defense counsel called both Gould and Gould’s sister to testify
about the emergency room visit, as well as the mother’s propensity for lying. As defense counsel
testified, the medical record may have served to bolster the credibility of Gould’s sister as a
witness, but would not have added anything new to the case. Though in hindsight defense
counsel admitted it may have been a helpful document to have, at the time, he did not feel it was
necessary for the defense. A fair assessment of attorney performance from counsel’s perspective
at the time shows he was not unprepared or ignorant of relevant information, and we will not
second-guess tactical or strategic decisions. Similarly, defense counsel was not deficient in
failing to obtain the IDHW records. First, it was unclear at the time of trial when exactly mother
applied for the benefits, although defense counsel was aware that she was receiving benefits.
Second, it was common for an individual in the mother’s circumstance to apply for benefits, and
third, defense counsel would not have been likely to introduce such evidence, even if relevant, in
order to avoid jury sympathy for the mother. Finally, there is nothing in the evidence that
unequivocally shows that the mother applied for benefits prior to the accusations by Gould’s
daughter. The evidence from the IDHW only showed that the application was signed on the date


                                               10
the accusations arose, but the individual from the IDHW who noted that date also stated that he
had no personal knowledge of when the mother was at the benefits office. 3 In other words,
Gould could only speculate that the application was made prior to the accusations. We decline to
find that defense counsel was deficient for failing to obtain speculative evidence that again
would have gone to the mother’s credibility in maintaining the allegations of abuse and
reputation for honesty or lack thereof--issues that defense counsel did, in fact, address through
the presentation of witnesses and other evidence. Accordingly, the district court did not error in
finding that Gould failed to show that defense counsel rendered ineffective assistance.
       2.      Appellate counsel
       Gould asserts his appellate counsel’s performance was deficient for failing to raise certain
issues on appeal. Appellate counsel only raised the issue of whether Gould’s sentence was
excessive. Gould argues that appellate counsel’s assistance was ineffective because counsel did
not raise the denial of the motion for a mistrial, made on the basis of prosecutorial misconduct,
or challenge an evidentiary ruling by the district court. He asserts that an appellate counsel is
deficient when he or she fails to raise issues that are stronger than those actually appealed.
       The State asserts that Gould not only argues the wrong standard in proving deficient
performance of appellate counsel, but also failed to present any evidence that appellate counsel
erred. 4 Appellate counsel testified that he read the entire record and found no viable issues other
than the sentence to raise on appeal. Consequently, the State contends that Gould cannot show
that appellate counsel ignored or was aware of relevant issues or erred in failing to raise
additional issues on appeal.
       We have set forth a clear standard by which to evaluate claims of ineffective assistance of
appellate counsel:
       [C]laims that [a defendant] was denied the effective assistance of counsel because
       appointed counsel should have raised certain additional issues on appeal are
       subject to the standards set forth in Strickland, and [the defendant] therefore must
       show that appellate counsel’s performance was deficient and caused prejudice in


3
       Neither party has introduced a copy of the IDHW application for benefits into the record.
4
        At oral argument, the State raised the issue of whether the trial transcript was properly
before the district court in the evidentiary hearing and properly before this Court. Having
reviewed the record, we are satisfied that the trial transcript was properly before the district court
and is properly before this Court.

                                                 11
       the outcome of the appeal. An indigent defendant does not have a constitutional
       right to compel appointed appellate counsel to press all nonfrivolous arguments
       that the defendant wishes to pursue. Rather, the process of winnowing out weaker
       arguments on appeal and focusing on those more likely to prevail, far from being
       the evidence of incompetence, is the hallmark of effective appellate advocacy.
       “ . . . [I]t is still possible to bring a Strickland claim based on counsel’s failure to
       raise a particular claim, but it is difficult to demonstrate that counsel was
       incompetent.” “[O]nly when ignored issues are clearly stronger than those
       presented, will the presumption of effective assistance of counsel be overcome.”
Mintun v. State, 144 Idaho 656, 661, 168 P.3d 40, 45 (Ct. App. 2007) (citations omitted). In
Mintun, this Court also recognized that certain issues should not be addressed in a direct appeal
when the record on appeal is not complete enough to appropriately and adequately address the
merits of the claim. Id. at 662, 168 P.3d at 46. Additionally, a claim of ineffective assistance of
appellate counsel for failing to appeal decisions of the defense counsel regarding evidence or
other potential errors is difficult to sustain because the record on direct appeal rarely discloses
trial strategy and tactical decision-making. See id.
       Gould testified at the evidentiary hearing that appellate counsel only raised the issue of an
excessive sentence, did not speak with Gould until after the opening brief was filed, and failed to
file an addendum to raise further issues. Gould testified that appellate counsel should have
appealed the denial of the motion for a mistrial on the basis that the prosecutor elicited false
testimony from the mother, an error that could only be corrected by the introduction of evidence
that would have been highly prejudicial to Gould. The mother testified at Gould’s trial that the
marriage between her and Gould was relatively stable, she had no thoughts of divorce, and most
marital arguments centered on finances. Gould asserts there was other evidence of marital
discord, but the evidence would have prejudiced Gould by making the jury believe Gould had
sexually deviant tendencies. In particular, Gould had received a sexually-charged text message
from a fourteen-year-old girl and had an account with an internet site where individuals could set
up casual homosexual connections, both of which his wife knew about. Defense counsel asked
the district court to limit the State’s inquiry into the highly prejudicial impeachment evidence
under Idaho Rule of Evidence 403 if Gould brought in the evidence to the impeach the mother.
The district court denied the motion. At the close of trial, defense counsel made a motion for a
new trial, on the same basis as the motion for a mistrial and the district court’s evidentiary ruling,
which was also denied.



                                                 12
       Appellate counsel, in his testimony, stated that he read the entire trial record and
transcripts and found no error in the district court’s rulings on either the motion for mistrial or in
ruling on the impeachment evidence under Rule 403. Appellate counsel believed that the district
court crafted the appropriate remedy in that the defense was free to cross-examine the mother
about her testimony on the status of the marriage, but in doing so would open the door to
evidence that may have been prejudicial to Gould. He further testified that in deciding which
issues to appeal, he first looks for possible error by the district court and then argues that error on
appeal, but having found no error in how the district court ruled, in his professional judgment,
the motion for mistrial was not an issue to raise on appeal.
       Gould has failed to show that appellate counsel was deficient for failing to raise the
denial of the motion for a mistrial or the evidentiary ruling on appeal. While these may have
been nonfrivolous arguments to make, appellate counsel is not required to raise all nonfrivolous
arguments that the defendant wishes to pursue. Gould’s appellate counsel had been representing
clients on appeal for several years, and in his judgment, there was no error by the district court in
the court’s decisions regarding those issues. Appellate counsel raised the issue of an excessive
sentence because, as he testified, a defendant can always argue that the district court abused its
sentencing discretion. There is no evidence that appellate counsel’s performance fell below an
objective standard of reasonableness, and therefore, the district court did not err in determining
that Gould failed to show that appellate counsel was deficient.
                                                 IV.
                                          CONCLUSION
       We conclude the district court did not err in applying the legal standard for ineffective
assistance of counsel claims. We further conclude that the district court did not err in finding
that Gould failed to show deficient performance by either defense or appellate counsel.
Therefore, we affirm the judgment denying Gould’s petition for post-conviction relief.
       Judge GRATTON and Judge MELANSON CONCUR.




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