               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 38794

EARL WAYNE STEELE,                               )
                                                 )     2012 Opinion No. 54
       Petitioner-Appellant,                     )
                                                 )     Filed: October 25, 2012
v.                                               )
                                                 )     Stephen W. Kenyon, Clerk
STATE OF IDAHO,                                  )
                                                 )
       Respondent.                               )
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Darla S. Williamson, District Judge.

       Order dismissing petition for post-conviction relief, affirmed.

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

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

WALTERS, Judge Pro Tem
       Earl Wayne Steele appeals from the denial of his petition for post-conviction relief
following an evidentiary hearing. He asserts that his Alford1 plea to one count of sexual abuse of
a child was not made knowingly or intelligently because he did not understand the consequences
of his plea. According to Steele, those consequences include a negative psychosexual evaluation
report, the imposition of a longer sentence, and parole “ineligibility.” He also asserts that he
received ineffective assistance of counsel because his attorney did not inform him of those
consequences. We affirm.




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


                                                1
                                                  I.
                                         BACKGROUND
       Steele was indicted on three counts of lewd conduct with a minor under sixteen, Idaho
Code § 18-1508, for alleged manual-to-genital contact with his daughter, and one count of sexual
abuse of a child under the age of sixteen years, I.C. § 18-1506, for a sexual request he allegedly
made to his daughter’s friend. Steele asserted that he was unable to remember any of the alleged
incidents as a result of heavy intoxication. Pursuant to a plea agreement, the State amended
Count I of the indictment from a charge of lewd conduct to a charge of sexual abuse, dismissed
the remaining charges, and agreed not to prosecute Steele on allegations that he abused two other
children. Steele agreed to plead guilty without admitting a factual basis for his guilt pursuant to
North Carolina v. Alford, 400 U.S. 25 (1970). The district court accepted Steele’s Alford plea
upon the State’s recitation of the facts and set the matter for sentencing.
       During the presentence investigation and Steele’s psychosexual evaluation (PSE), Steele
expressed remorse for his alcoholism, but equivocated on his acceptance of responsibility for the
alleged sexual abuse. At the sentencing hearing, Steele stated, “I would like to apologize to my
daughter. If I had touched her inappropriately, I didn’t mean to or realize that I had. I had wrote
a letter here. Your Honor, while thinking I was--it was truly possible of doing such an offense in
a black out . . . .” 2 The district court rejected Steele’s assertion that he was unable to remember
any of the abuse as a result of intoxication because the conduct spanned multiple years. The
district court then sentenced Steele to a unified term of twenty-five years including a fixed term
of seven years, but subsequently reduced the sentence to a term of fifteen years with a seven-year
determinate portion because the original sentence exceeded the statutory maximum punishment.




2
       In a handwritten letter to the district court, Steele wrote:
                I may have accidentally touch [sic] my daughter in an inappropriate way
       while in a blackout, confused of where I was, thinking I’m in my bedroom trying
       to crawl into my bed. I’m trying to grasp on how my daughter would of thought
       about her father. It’s so hard to think that this could of ever happened. I would
       owe my daughter . . . the most deepest of apologys [sic]. If so, if my daughter
       could ever would ever find it in her heart to ever forgive me, I would make a
       promise to her and my family to never, ever take another drink of alcohol as long
       as I live.


                                                  2
       Steele filed a petition for post-conviction relief and two amended petitions, each asserting
numerous claims. As relevant to this appeal, Steele asserted that he was not informed, prior to
the entry of his plea, that his Alford plea and subsequent denials of guilt would result in
consequences including a negative psychosexual evaluation, the imposition of a harsher sentence
than would have otherwise been imposed, and the eventual denial of his parole.             Steele’s
amended petition, which is less than clear, appears to frame each claim both as a due process
violation and as a violation of his right to effective assistance of counsel. The district court
denied Steele’s petition following an evidentiary hearing. Steele appeals.
                                                II.
                                   STANDARD OF REVIEW
       Steele asserts that all the allegations in his amended petition must be deemed to be true
because the State did not file an answer to his amended petition. 3 Steele relies on Hall v. State,
126 Idaho 449, 451, 885 P.2d 1165, 1167 (Ct. App. 1994), in which this Court stated,
“Allegations in an application for post-conviction relief must be deemed to be true until those
allegations are controverted by the state.” However, we have previously indicated that the
“statement, frequently made in our opinions, that the allegations in a petition for post-conviction
relief are deemed true until controverted by the State, refers only to the circumstance where the
State has moved for summary disposition or the court has given notice of intent to summarily
dismiss.” Griffin v. State, 142 Idaho 438, 442, 128 P.3d 975, 979 (Ct. App. 2006). Steele’s
petition was not decided by way of summary disposition. Thus, the standard Steele cites is
inapplicable.
       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



3
        Steele filed a petition and two amended petitions. The State filed an answer to Steele’s
original petition and filed an answer and motion for summary dismissal in response to Steele’s
first amended petition, but did not file an answer to Steele’s second amended petition.


                                                 3
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).
                                                III.
                                           ANALYSIS
       Because a guilty plea by a criminal defendant waives certain constitutional rights, due
process requires that a defendant’s plea be entered voluntarily, knowingly, and intelligently.
State v. Heredia, 144 Idaho 95, 97, 156 P.3d 1193, 1195 (2007); State v. Colyer, 98 Idaho 32, 34,
557 P.2d 626, 628 (1976); Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App.
2008). Accord McCarthy v. United States, 394 U.S. 459, 466 (1969). Therefore, the plea must
be entered with a full understanding of what the plea connotes and of its consequences. Ray v.
State, 133 Idaho 96, 99, 982 P.2d 931, 934 (1999); State v. Mauro, 121 Idaho 178, 180, 824 P.2d
109, 111 (1991). Accord Boykin v. Alabama, 395 U.S. 238, 244 (1969). However, Idaho
appellate courts have long held that a defendant must only be informed of the direct
consequences of a plea, as opposed to the collateral or indirect consequences. Heredia, 144
Idaho at 97, 156 P.3d at 1195; Ray, 133 Idaho at 99-101, 982 P.2d at 934-36; State v. Huffman,
137 Idaho 886, 887, 55 P.3d 879, 880 (Ct. App. 2002); Jakoski v. State, 136 Idaho 280, 285, 32
P.3d 672, 677 (Ct. App. 2001); State v. Miller, 134 Idaho 458, 460, 4 P.3d 570, 572 (Ct. App.
2000); Carter v. State, 116 Idaho 468, 468, 776 P.2d 830, 830 (Ct. App. 1989). See also State v.
Flowers, 150 Idaho 568, 573, 249 P.3d 367, 372 (2011); Hayes, 146 Idaho at 355, 195 P.3d at
714; State v. Shook, 144 Idaho 858, 859, 172 P.3d 1133, 1134 (Ct. App. 2007). Accord Torrey v.
Estelle, 842 F.2d 234, 235 (9th Cir. 1988). While it may be desirable to inform defendants of all
foreseeable, albeit indirect, consequences of a plea, principles of due process do not impose such
a burden on the courts. Miller, 134 Idaho at 461, 4 P.3d at 573; Carter, 116 Idaho at 469, 776
P.2d at 831. See also Williams v. State, 132 Idaho 437, 439, 974 P.2d 83, 85 (Ct. App. 1998).
       Idaho appellate courts have also determined that the Sixth Amendment does not contain
an implied duty for an attorney to inform his client of the collateral consequences of a guilty
plea. Ray, 133 Idaho at 102, 982 P.2d at 937; Retamoza v. State, 125 Idaho 792, 796-97, 874
P.2d 603, 607-08 (Ct. App. 1994); Jones v. State, 118 Idaho 842, 844, 801 P.2d 49, 51 (Ct. App.
1990); LaBarge v. State, 116 Idaho 936, 939, 782 P.2d 59, 62 (Ct. App. 1989); Carter, 116 Idaho


                                                 4
at 469, 776 P.2d at 831. The overwhelming majority of courts from other jurisdictions have
similarly concluded that defense counsel’s failure to advise a client of the collateral consequence
of a guilty plea does not constitute ineffective assistance of counsel. Carter, 116 Idaho at 469,
776 P.2d at 831. See also D’Ambrosio v. State, 146 P.3d 606, 621 (Haw. Ct. App. 2006);
5 WAYNE R. LAFAVE       ET AL.,   CRIMINAL PROCEDURE § 21.4(d) at 816 (3d ed. 2007). We also
emphasize that it is generally desirable for counsel to advise their clients of significant collateral
consequences of pleading guilty, but what is desirable or optimal does not define that which is
constitutionally mandated. Retamoza, 125 Idaho at 797, 874 P.2d at 608.
       Steele suggests that the distinction between direct and collateral consequences was
abrogated by Padilla v. Kentucky, ___ U.S. ___, 130 S. Ct. 1473, 1481-82 (2010), for both due
process and ineffective assistance of counsel claims. We disagree. In Padilla, the Supreme
Court considered whether an attorney’s incorrect advice that a guilty plea to a drug charge would
not result in statutorily required deportation constituted ineffective assistance of counsel. The
Supreme Court stated:
                We . . . have never applied a distinction between direct and collateral
       consequences to define the scope of constitutionally “reasonable professional
       assistance” required under [Strickland v. Washington, 466 U.S. 668 (1984)].
       Whether that distinction is appropriate is a question we need not consider in this
       case because of the unique nature of deportation.
                ....
                Deportation as a consequence of a criminal conviction is, because of its
       close connection to the criminal process, uniquely difficult to classify as either a
       direct or a collateral consequence. The collateral versus direct distinction is thus
       ill-suited to evaluating a Strickland claim concerning the specific risk of
       deportation.

Id. at ___, 130 S. Ct at 1482. Because the Court explicitly stated that it was not deciding
whether the distinction between direct and collateral consequences defines the scope of effective
assistance of counsel, the holding of numerous Idaho cases that an attorney is not required to
inform a client of collateral consequences of a plea was not abrogated by Padilla except in the
deportation context. Furthermore, the Supreme Court did not address whether the distinction
between direct and collateral consequences is appropriate under a due process analysis. See id.
Therefore, Padilla similarly did not abrogate the distinction between direct and collateral
consequences in the due process context. See United States v. Delgado-Ramos, 635 F.3d 1237,
1240 (9th Cir. 2011). For purposes of determining whether due process requires that a defendant


                                                  5
be informed of particular consequences of a plea in order to make an informed decision on
whether to plead guilty, and for purposes of determining whether counsel’s failure to advise a
client on the particular consequences of a plea other than deportation constitutes ineffective
assistance of counsel, the appropriate inquiry continues to be whether the particular
consequences are direct or collateral.
       “A consequence is direct if it presents ‘a definite, immediate and largely automatic effect
on the defendant’s range of punishment.’” Huffman, 137 Idaho at 887, 55 P.3d at 880 (quoting
Miller, 134 Idaho at 460, 4 P.3d at 572). Accord United States v. Adams, 432 F.3d 1092, 1095
(9th Cir. 2006); Torrey, 842 F.2d at 236. In determining whether a consequence is direct or
collateral, Idaho courts have also considered factors including the defendant’s power to prevent
the consequence, the punitive or remedial nature of the consequence, and the amount of control
the sentencing judge has over imposing the consequence. Heredia, 144 Idaho at 98, 156 P.3d at
1196; Ray, 133 Idaho at 99-101, 982 P.2d at 934-36.
       Steele asserts that his plea was not entered voluntarily, knowingly, and intelligently and
that he received ineffective assistance of counsel because he was not informed of the direct
consequences of his Alford plea which, according to Steele, include a negative psychosexual
evaluation, the imposition of a longer sentence, and parole ineligibility.        We address each
consequence in turn, and apply the above standards to determine whether each consequence is a
direct or collateral consequence of Steele’s Alford plea.
A.     Negative PSE
       Steele asserts that a negative PSE--specifically, the conclusions that Steele presents a
high risk to reoffend and is likely not amenable for sexual offender treatment--was a direct
consequence of his Alford plea. It is unclear whether Steele is asserting that the PSE itself is an
independent consequence of his plea, or whether he is asserting that the PSE resulted in an
increased sentence, and that the increased sentence is a consequence of his plea. To the extent
that Steele is asserting that the PSE itself is an independent consequence of his plea, we first note
that the PSE is not punishment. Unlike other consequences that Idaho courts have characterized
as punitive, see, e.g., Heredia, 144 Idaho at 98, 156 P.3d at 1196, a PSE is informational. Any
conclusions or recommendations made therein are not binding on the court.
       Additionally, the district court had no control over the PSE results and neither the district
court nor counsel could have predicted the results of the PSE with any degree of certainty. The


                                                 6
very nature of a PSE is to provide the sentencing court with an independent professional opinion
from a certified evaluator based on information extending well beyond the information that may
have been provided to the court during a trial or plea hearing. See I.C. § 18-8316. During an
evidentiary hearing on Steele’s post-conviction claims, Steele’s trial attorney testified that he had
previously read other PSEs conducted in Alford situations and that he did not think that the
defendants were always determined to be a high risk to reoffend. He also testified that he did not
anticipate any “tension” between Steele’s Alford plea and the PSE, and that he was surprised by
the results of the evaluation because he found Steele to be remorseful. Steele did not present any
evidence that when a defendant enters an Alford plea based on an alleged lack of memory, the
psychosexual evaluator will definitely or automatically conclude that the defendant is not
amendable to treatment or that the defendant presents a high risk to reoffend. We conclude that
the particular results of a PSE are not definite or largely automatic consequences of an Alford
plea.
        The negative results of Steele’s PSE were not a direct consequence of his plea both
because a PSE is not punitive and because the negative results were not a definite, immediate,
and largely automatic consequence over which the judge exercised control. 4
B.      Imposition of Longer Sentence
        At Steele’s sentencing hearing, the district court stated, “The most problematic of all of
this is the fact that you simply are not accepting responsibility for your conduct.” Thus, Steele
asserts that he received a longer sentence, as a direct consequence of his Alford plea, than he
would have received if he had been willing or able to admit his guilt.
        It is well established that due process and Idaho Criminal Rule 11 require that a
defendant be informed, prior to the entry of a guilty plea, of the minimum and maximum
potential sentence, not of the actual sentence that the court will impose within that range. E.g.,
I.C.R. 11(c); Heredia, 144 Idaho at 97, 156 P.3d at 1195; Ray, 133 Idaho at 99, 982 P.2d at 934.

4
        Furthermore, we question whether the results of the PSE were a consequence of Steele’s
Alford plea at all, and not the consequences of subsequent denials of guilt made during the
evaluation. Steele asserts that the consequences of an Alford plea should include the
consequences of all subsequent assertions of innocence insofar as those subsequent assertions
merely maintain the same position. However, Steele’s Alford plea was based on an assertion that
he could not remember the alleged incident, but his subsequent statements later evolved into
affirmative assertions of innocence. Thus, Steele was not merely maintaining the position he
asserted at the entry of his plea.

                                                 7
Regardless of whether a defendant is convicted at trial, enters an Alford guilty plea, or pleads
guilty and admits the factual basis for his guilt, the potential sentence for any particular crime is
the same. In this case, the district court satisfied its obligation to inform Steele of the maximum
potential sentence when it correctly informed Steele, prior to the entry of his plea, that by
pleading guilty to sexual abuse of a child he could be sentenced to a term of incarceration of up
to fifteen years. I.C. § 18-1506 (2005). 5 Steele appears to suggest that the entry of an Alford
plea necessarily results in the imposition of a minimum sentence at or near the top of the
statutorily prescribed sentencing range. However, Steele has not provided any authority in
support of this argument, and thus we do not consider it. State v. Zichko, 129 Idaho 259, 263,
923 P.2d 966, 970 (1996).
       We also reject the proposition that the entry of an Alford plea necessarily results in a
longer sentence than would be imposed if the defendant admits a factual basis for his or her guilt.
In State v. Howry, 127 Idaho 94, 896 P.2d 1002 (Ct. App. 1995), we considered the relationship
between an Alford plea and the sentencing process. In that case, the defendant entered an Alford
plea while asserting that he was, in fact, innocent. At sentencing, the district court considered
the defendant’s “steadfast refusal to recognize culpability and his utter lack of remorse.” Howry,
127 Idaho at 95, 896 P.2d at 1003.         The defendant asserted that such consideration was
inappropriate after the entry of an Alford plea because doing so would require a defendant who
has not admitted guilt to behave as if he were guilty in order to escape a harsher sentence.
Howry, 127 Idaho at 95, 896 P.2d at 1003. This Court held that “once the Alford plea is entered,
the court may treat the defendant, for purpose of sentencing, as if he or she were guilty.” Howry,
127 Idaho at 96, 896 P.2d at 1004. Furthermore, we held:
               Although an Alford plea allows a defendant to plead guilty amid assertions
       of innocence, it does not require a court to accept those assertions. The
       sentencing court may, of necessity, consider a broad range of information,
       including the evidence of the crime, the defendant’s criminal history and the
       demeanor of the defendant, including the presence or absence of remorse. Such
       considerations play an important role in the court’s determination of the
       rehabilitative potential of the defendant.




5
       Idaho Code section 18-1506 was subsequently amended to allow a sentence of up to
twenty-five years. 2006 Idaho Sess. Laws, ch. 178, § 3 at 546.

                                                 8
Howry, 127 Idaho at 96, 896 P.2d at 1004. Our holding in Howry recognized the district court’s
discretion and fact-finding role when sentencing a defendant who has entered an Alford plea. In
that role, the district court may assess the credibility of a defendant’s assertion that he or she has
no memory of the charged conduct. Although the district court found Steele’s assertions that he
lacked memory of the charged conduct to be incredible in this case, and treated his failure to
accept responsibility and lack of remorse for his sexual conduct as an aggravating factor at
sentencing, such a result is not mandated as a result of every Alford plea. Instead, the sentencing
court is tasked with creating an individualized sentence. Howry, 127 Idaho at 95, 896 P.2d at
1003. See also State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982); State v.
Nice, 103 Idaho 89, 90, 645 P.2d 323, 324 (1982). It is undisputed that the possible imposition
of sentence is a direct consequence of an Alford plea and that Steele was correctly and
adequately informed that his Alford plea could result in the imposition of a sentence of up to
fifteen years.
        Steele also asserts that his Alford plea resulted in a harsher sentence because, according
to Steele, he has no chance of being paroled absent an admission of his guilt, and thus that his
unified sentence of fifteen years with a seven-year determinate portion has, in effect, been
transformed into a fifteen-year fixed sentence. In essence, Steele is asserting that the district
court intended only a seven-year fixed sentence, but that he will in fact serve a fifteen-year fixed
sentence. However, even if we were to assume that Steele will be denied parole, the denial of
parole does not constitute a sentence increase. There is no constitutionally-protected right of
parole, no legitimate expectation of parole, and no presumption that a prisoner is to be released
after serving the determinate portion of his sentence. Warren v. Craven, 152 Idaho 327, 331-32,
271 P.3d 725, 729-30 (Ct. App. 2012).
C.      Denial of Parole
        Finally, Steele asserts that the denial of parole is a direct consequence of his Alford plea.
Steele has not yet applied for or been denied parole, and Steele presented no evidence during the
post-conviction evidentiary hearing that his parole will be denied in the future as a result of his
Alford plea. On appeal, Steele cites to three law review articles that discuss the complications




                                                  9
presented by Alford pleas. 6 However, even if this material had been presented to the district
court below, it would not have addressed how an Idaho Parole Commission would treat a
prisoner who asserts that he can neither admit nor deny the crime because he cannot remember it.
Cf. Bjorklund v. State, 130 Idaho 373, 377, 941 P.2d 345, 349 (Ct. App. 1997) (rejecting claim
that a plea was not voluntarily entered when the defendant was not informed of the “policy and
practice” of the Parole Commission not to release sex offenders until they had served their entire
sentences because the defendant presented no evidence that such a policy exists). In the absence
of any evidentiary support, dismissal of this claim was appropriate.
       Furthermore, even if we assume that Steele would be denied parole, this Court has
previously determined that parole consequences are not direct consequences of a plea. 7 State v.
Banuelos, 124 Idaho 569, 572, 861 P.2d 1234, 1237 (Ct. App. 1993); Brooks v. State, 108 Idaho
855, 858, 702 P.2d 893, 896 (Ct. App. 1985). In Brooks, this Court recognized that “modern
cases generally hold that informing a defendant of parole consequences may be desirable but is
not a constitutional prerequisite to accepting a guilty plea.” Id. See also 5 WAYNE R. LAFAVE
ET AL., CRIMINAL PROCEDURE     § 21.4(d) at p. 824-825 (3d ed. 2007) (“collateral consequences of
which the defendant need not be warned . . . include such matters as . . . that successful
completion of a treatment program may require certain admissions by the defendant”).
       None of the consequences Steele alleges, including a negative psychosexual evaluation,
the imposition of a longer sentence, and parole ineligibility, are direct consequences of Steele’s
Alford plea. Therefore, Steele has not demonstrated that his plea was not entered voluntarily,
knowingly, and intelligently. Additionally, counsel was not required to inform Steele of the




6
       Daniel S. Medwed, The Innocent Prisoner's Dilemma: Consequences of Failing to Admit
Guilt at Parole Hearings, 93 Iowa L. Rev. 491 (2008); Richard A. Rosen, Reflections on
Innocence, 2006 Wis. L. Rev. 237 (2006); Bryan H. Ward, A Plea Best Not Taken: Why
Criminal Defendants Should Avoid the Alford Plea, 68 Mo. L. Rev. 913, 932 (2003).
7
       We also question whether the denial of parole based on Steele’s assertions of innocence
made at the parole hearing, or based on Steele’s failure to complete sex-offender treatment
programming due to assertions of innocence made during that programming would constitute a
consequence of Steele’s Alford plea at all, and not the consequences of subsequent denials of
guilt.

                                                10
alleged consequences because the Sixth Amendment does not contain an implied duty for an
attorney to inform his client of the collateral consequences of a guilty plea. 8
       Steele was informed at his plea hearing that he could receive a sentence of incarceration
of up to fifteen years, and ultimately received a unified sentence of fifteen years. If Steele serves
the full term of his unified sentence, he still will have suffered no greater or additional
consequence than the maximum punishment that was explained to him at the plea hearing. 9
                                                 IV.
                                          CONCLUSION
       The consequences Steele has alleged, including a negative PSE, a harsher sentence, and
denial of parole, are not among the direct consequences of a plea of which a defendant must be
informed by the district court or counsel prior to the entry of a plea. Accordingly, Steele has not
demonstrated that due process required him to be informed of these consequences in order for his
plea to be entered knowingly, voluntarily, or intelligently, or that he received ineffective
assistance of counsel. We affirm the dismissal of Steele’s petition for post-conviction relief.
       Chief Judge GRATTON and Judge GUTIERREZ CONCUR.




8
        We also note that Steele did not present any evidence that his attorney’s conduct was
objectively unreasonable under prevailing professional norms. See Strickland v. Washington,
466 U.S. 668, 688 (1984); Schoger v. State, 148 Idaho 622, 624, 226 P.3d 1269, 1271 (2010).
9
        Nonetheless, this case highlights problems that may be encountered when an Alford plea
is entered in a sex offense case. Consequently, the best practice may be to avoid the entry of
Alford pleas in sex offense cases.

                                                  11
