               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 40822

DAMON MARCELINO LOPEZ,                          )      2014 Unpublished Opinion No. 722
                                                )
       Petitioner-Appellant,                    )      Filed: September 15, 2014
                                                )
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STATE OF IDAHO,                                 )      THIS IS AN UNPUBLISHED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 Third Judicial District, State of Idaho,
       Canyon County. Hon. Bradly S. Ford, District Judge.

       Judgment denying petition for post-conviction relief, affirmed.

       Damon Marcelino Lopez, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GUTIERREZ, Chief Judge
       Damon Marcelino Lopez appeals from the judgment of the district court denying Lopez’s
amended petition for post-conviction relief following an evidentiary hearing. For the reasons
that follow, we affirm.
                                               I.
                                 FACTS AND PROCEDURE
       Lopez was charged with sexual battery of a minor child of sixteen or seventeen years of
age and was alleged to be a persistent violator. Initially, a public defender was appointed to
represent Lopez, but Lopez later retained a private defense attorney. Lopez then entered a plea
agreement with the State and pleaded guilty to the sexual battery charge; the State dismissed the
persistent violator allegation. After Lopez entered his plea, but before sentencing, the private
defense attorney moved to withdraw, and the court granted the defense attorney’s motion. The
public defender was then reappointed to represent Lopez. Lopez was sentenced to a unified term
of twenty-eight years, with seven years determinate.

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       Lopez filed a pro se petition for post-conviction relief, claiming ineffective assistance of
counsel and claiming that defense counsel failed to inform him of his Estrada 1 rights. Lopez
was later appointed post-conviction counsel, and that attorney filed an amended petition for post-
conviction relief, also alleging ineffective assistance of counsel and claiming that defense
counsel failed to inform Lopez of his Estrada rights. The district court conducted an evidentiary
hearing at which the private defense attorney, the public defender, the parole officer who
supervised Lopez, and Lopez testified.      The district court issued a memorandum decision
denying Lopez’s claims for post-conviction relief. Lopez appealed and moved the court to
appoint the State Appellate Public Defender (SAPD), which the district court did. Subsequently,
the SAPD moved the Idaho Supreme Court to withdraw, and the Supreme Court granted the
SAPD’s motion. Lopez has since proceeded pro se.
                                                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. Idaho Code § 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.
                                               III.
                                           ANALYSIS
       Lopez raises four issues on appeal. Lopez first takes issue with the lack of counsel in this
appeal. Second, Lopez contends that his public defender provided ineffective assistance of



1
       See Estrada v. State, 143 Idaho 558, 149 P.3d 833 (2006).

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counsel by not properly preparing for sentencing. Next, Lopez argues that his public defender
provided ineffective assistance of counsel by failing to file an appeal. Finally, Lopez asserts that
his public defender failed to advise Lopez of his rights under Estrada v. State, 143 Idaho 558,
149 P.3d 833 (2006) and that he was coerced into participating in the psychosexual evaluation.
       We begin by addressing Lopez’s first issue concerning the lack of counsel in this appeal.
It is well established in Idaho that there is no constitutional right to counsel in post-conviction-
relief proceedings. Eby v. State, 148 Idaho 731, 737, 228 P.3d 998, 1004 (2010); Lee v. State,
122 Idaho 196, 199, 832 P.2d 1131, 1134 (1992). Idaho Code § 19-4904 provides that an
attorney may be appointed to represent the petitioner by the district court during the preparation
of the petition, at the district court, and on appeal. Here, the district court appointed the SAPD to
represent Lopez on appeal, but the Idaho Supreme Court granted the SAPD’s motion to
withdraw. We do not, however, have the authority to review and, in effect, reverse an Idaho
Supreme Court decision on a motion made prior to assignment of the case to this Court on the
ground that the Supreme Court decision was contrary to the state or federal constitutions or other
law. See State v. Morgan, 153 Idaho 618, 620, 288 P.3d 835, 837 (Ct. App. 2012). Such an
undertaking would be tantamount to the Court of Appeals entertaining an appeal from an Idaho
Supreme Court decision and is plainly beyond the purview of this Court. Id. Hence, we are
unable to resolve Lopez’s first issue in his favor.
A.     Ineffective Assistance of Counsel
       Lopez contends that his public defender provided ineffective assistance of counsel by not
properly preparing for sentencing.       Lopez also argues that his public defender provided
ineffective assistance of counsel by failing to file an appeal. A claim of ineffective assistance of
counsel may properly be brought under the Uniform Post-Conviction Procedure Act. Barcella v.
State, 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct. App. 2009). 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); 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). This Court has long adhered to the proposition that tactical or strategic


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decisions of defense 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).
        Generally, defense counsel is bound to conduct a prompt and thorough investigation of
defense counsel’s case. Richman v. State, 138 Idaho 190, 193, 59 P.3d 995, 998 (Ct. App. 2002)
(discussing whether defense counsel was deficient for failing to investigate and present
mitigating evidence at sentencing of defendant’s mental condition). A decision not to investigate
or present mitigating evidence is assessed for reasonableness, giving deference to counsel’s
judgment. Id.; see also Wallace v. Ward, 191 F.3d 1235, 1247 (10th Cir. 1999).
        1.       Inadequate preparation
        Lopez contends that the public defender failed to adequately prepare for Lopez’s
sentencing. In his amended petition, Lopez generally alleged that he did not meet with his
attorney for more than an hour during the course of his criminal proceedings and was unable to
have the testimony of the parole officer admitted into evidence. Relevant to this appeal, at the
evidentiary hearing, Lopez testified that he sent a letter to the public defender informing the
public defender that his parole officer would be willing to attest to Lopez’s good conduct at
sentencing. The public defender testified that he did not recall receiving a letter and also
testified that he would not, as a matter of strategy, call a parole officer to testify at the sentencing
stage. According to the public defender, the parole officer would not benefit a defendant at
sentencing. The parole officer who Lopez wanted to testify at the sentencing hearing testified at
the evidentiary hearing.     After initially stating that he would have informed the court at
sentencing that he had “no red flags” with Lopez, on cross-examination, the parole officer stated
that he was “not sure what [he] would have said at that time.” The district court determined that
Lopez had not shown that his public defender provided deficient performance nor shown that he
was prejudiced by inadequate preparation or by the public defender’s failure to call the parole
officer to testify.
        Determinative of this issue is the fact that Lopez has not demonstrated that the public
defender’s strategic decision not to admit testimony or other evidence from the parole officer,
assuming that Lopez did request such evidence, was based on inadequate preparation, ignorance
of relevant law, or other shortcomings. In addition, Lopez has failed to demonstrate how he was
prejudiced by the failure to admit testimony from the parole officer, especially when the parole


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officer’s testimony at the evidentiary hearing was uncertain. The remainder of Lopez’s claims,
contending that the public defender should have conducted interviews with family members, is
purely conjectural and is not supported by admissible evidence demonstrating both deficient
performance and prejudice. Accordingly, we cannot say that the district court erred when it
denied this claim of ineffective assistance of counsel.
       2.      Failure to file an appeal
       Lopez next argues that the public defender failed to file an appeal. Specifically, Lopez
asserts that he wanted to appeal the length of the sentence imposed and the denial of his
I.C.R. 35 motion. However, in his pro se petition for post-conviction relief, Lopez asserted that
the public defender did not inform Lopez of his right to appeal. Lopez did not raise this issue in
his amended petition. At the evidentiary hearing, Lopez acknowledged that he was informed of
his right to an appeal. Based on questions asked by post-conviction counsel at the hearing, it
appears that the district court presumed Lopez was raising the issue of whether the public
defender provided ineffective assistance of counsel by failing to file an appeal at Lopez’s
request. See Gosch v. State, 154 Idaho 71, 76, 294 P.3d 197, 202 (Ct. App. 2012) (presuming
Strickland prejudice when a defendant proves that he made an unequivocal request for counsel to
file an appeal). The district court determined that Lopez did not prove by a preponderance of the
evidence that he requested the public defender to file an appeal.
       In his opening brief for this appeal, Lopez claims that in his original, pro se petition and
affidavit he “alleged that he was requesting that an appeal be filed as to the length of the sentence
imposed, as to the denial of his Rule 35 motion.” Lopez does not provide a citation to the record
that backs his assertion. This is for a good reason. Lopez’s affidavit does not state that Lopez
wrote a letter to the public defender asking the public defender to file an appeal. 2 Lopez,
himself, acknowledged at the evidentiary hearing that he did not request an appeal:
       [Post-conviction counsel]:              Okay. But did you request of your attorney
                                      to file an appeal?
       [Lopez]:                                No, I don’t think I did. But it’s ‘cause I was
                                      just in shock of the sentence and everything, so I
                                      didn’t--you know, like I said, I don’t know all the
                                      processes. So --

2
       The only reference to a letter in the affidavit is when Lopez complains of defense
counsel’s availability and preparation. As for the appeal, Lopez states, “After sentencing my
lawyer failed to inform me of my right to appeal in writing or any other communication.”

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Thus, Lopez has not established by a preponderance of the evidence that he requested his counsel
to file an appeal. Accordingly, the district court did not err by denying Lopez’s claim that the
public defender provided ineffective assistance of counsel by failing to file an appeal.
B.     Estrada Rights and Lopez’s Psychosexual Evaluation
       In his amended petition for post-conviction relief, Lopez contended that he was not
informed of his Fifth Amendment right to remain silent in a psychosexual examination. Estrada,
143 Idaho at 561-63, 149 P.3d at 836-38 (holding that a defendant has a right to the advice of
counsel regarding the defendant’s participation in a psychosexual evaluation); Gonzales, 151
Idaho at 173, 254 P.3d at 74 (noting that Estrada “requires counsel to inform the defendant of his
or her Fifth Amendment right to remain silent as to the psychosexual evaluation and that
anything the defendant says to the evaluator will be disclosed to the court for its consideration in
formulating the defendant’s sentence”); see also Hughes v. State, 148 Idaho 448, 457, 224 P.3d
515, 524 (Ct. App. 2009) (concluding that the Sixth Amendment right to effective assistance of
counsel does not require defense counsel’s physical presence at the psychosexual evaluation).
Following the evidentiary hearing, the district court specifically determined that Lopez was
informed by the private defense attorney and by the court of his right to remain silent during the
psychosexual examination.
       Now on appeal, Lopez argues that the public defender, the attorney he had at the time of
the psychosexual evaluation, did not inform him of his right to remain silent. Lopez, however,
acknowledges in his own appellate brief that he was informed of his rights by the private defense
attorney. Even though Lopez decided to terminate his representation by the private defense
attorney and resume (again) with the public defender, this does not change the fact that in this
criminal proceeding, and before the psychosexual evaluation, Lopez was informed of his Estrada
rights. 3 Therefore, the district court did not err when it denied Lopez’s claim that he was not
informed of his Fifth Amendment right to remain silent in a psychosexual evaluation.
       Lopez also argues that his psychosexual evaluation was coerced. Lopez did not raise this
issue below, and generally, issues not raised below may not be considered for the first time on




3
       Lopez was informed of his Estrada rights by the private defense attorney before the
change-of-plea hearing and then by the court at the change-of-plea hearing.

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appeal. Sanchez v. Arave, 120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991). Accordingly, we
will not consider this issue.
                                                 III.
                                          CONCLUSION
       We lack the authority to review the Idaho Supreme Court’s order permitting the SAPD to
withdraw. The district court did not err by denying Lopez’s claim that the public defender
provided ineffective assistance of counsel by failing to adequately prepare for sentencing. Lopez
has not shown that the public defender’s strategic choice not to present the testimony of the
parole officer, assuming Lopez requested that testimony, was based on inadequate preparation,
ignorance of relevant law, or other shortcomings. Additionally, Lopez failed to demonstrate
prejudice from the failure to call the parole officer. We also conclude that the district court did
not err by denying Lopez’s claim that the public defender provided ineffective assistance of
counsel by failing to file an appeal. Lopez did not prove by a preponderance of the evidence that
he requested the public defender to file an appeal.
       As to Lopez’s claim that he was not advised of his Estrada rights, the record plainly
reveals that Lopez was advised of his Estrada rights before the psychosexual evaluation by the
private defense attorney and by the court, although not by the attorney at the time of the
psychosexual evaluation.        Accordingly, Lopez was properly advised of Estrada rights.
Therefore, we conclude that the district court did not err by denying Lopez’s amended petition
for post-conviction relief, and the judgment of the district court is affirmed.
       Judge GRATTON and Judge MELANSON, CONCUR.




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