               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 38791

KIRK JULLIARD GOSCH,                             )
                                                 )     2012 Opinion No. 47S
       Petitioner-Appellant,                     )
                                                 )     Filed: December 31, 2012
v.                                               )
                                                 )     Stephen W. Kenyon, Clerk
STATE OF IDAHO,                                  )
                                                 )     SUBSTITUTE OPINION
       Respondent.                               )     THE COURT’S PRIOR
                                                 )     OPINION DATED
                                                 )     SEPTEMBER 5, 2012, IS
                                                 )     HEREBY WITHDRAWN
                                                 )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Benjamin R. Simpson, District Judge.

       Judgment dismissing petition for post-conviction relief, vacated and remanded.

       Sara B. Thomas, State Appellate Public Defender; Sarah E. Tompkins, Deputy
       Appellate Public Defender, Boise, for appellant. Sarah E. Tompkins argued.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
                 ________________________________________________
MELANSON, Judge
       Kirk Julliard Gosch appeals from the district court’s judgment dismissing his petition for
post-conviction relief. For the reasons set forth below, we vacate and remand.
                                                I.
                                 FACTS AND PROCEDURE
       Gosch was found guilty by a jury of manufacturing a controlled substance, I.C. § 37-
2732(a); possession of marijuana with intent to deliver, I.C. § 37-2732(a); and possession of
marijuana in excess of three ounces, I.C. § 37-2732(e). Gosch filed a petition for post-conviction
relief, asserting that he received ineffective assistance of counsel because his trial counsel
provided erroneous advice as to the potential consequences of filing an appeal. At an evidentiary
hearing on this claim, Gosch asserted that he also received ineffective assistance of counsel



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because he asked counsel to file an appeal in his underlying criminal case, but no appeal was
ever filed. The state did not object to the presentation of this additional claim at the evidentiary
hearing, the parties argued the merits, and the district court considered the claim. In the district
court’s findings of fact and conclusions of law in support of the judgment dismissing Gosch’s
petition, the district court determined that Gosch’s claims of ineffective assistance of counsel
failed. Gosch appeals.
                                                II.
                                           ANALYSIS
       Gosch argues that the district court erred when it dismissed his petition for post-
conviction relief because he demonstrated that he received ineffective assistance of counsel
based upon his trial counsel’s failure to file a notice of appeal in his underlying criminal case
despite Gosch’s unequivocal request that counsel do so. 1 Thus, Gosch asserts that his case must
be remanded to the district court for entry of an amended judgment of conviction to allow him to
perfect a timely appeal.
       Post-conviction proceedings are civil in nature and therefore the petitioner must prove the
allegations by a preponderance of the evidence. McKinney v. State, 133 Idaho 695, 699-700, 992
P.2d 144, 148-49 (1999). On review, the appellate court will not disturb the lower court’s factual
findings unless the factual findings are clearly erroneous. Id. at 700, 992 P.2d at 149. 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. Peterson
v. State, 139 Idaho 95, 97, 73 P.3d 108, 110 (Ct. App. 2003). The appellate court exercises free
review of the district court’s application of the relevant law to the facts. Dunlap v. State, 141
Idaho 50, 56, 106 P.3d 376, 382 (2004).
       A claim of ineffective assistance of counsel may properly be brought under the post-
conviction procedure act. Murray v. State, 121 Idaho 918, 924-25, 828 P.2d 1323, 1329-30 (Ct.
App. 1992). To prevail on an ineffective assistance of counsel claim, the defendant must show
that the attorney’s performance was deficient and that the defendant was prejudiced by the



1
        Gosch does not challenge the district court’s determination that Gosch’s claim that he
received ineffective assistance of counsel because his trial counsel provided erroneous advice as
to the potential consequences of filing an appeal failed.


                                                 2
deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hassett v. State, 127 Idaho
313, 316, 900 P.2d 221, 224 (Ct. App. 1995). To establish a deficiency, the petitioner has the
burden of showing that the attorney’s representation fell below an objective standard of
reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). To establish
prejudice, the petitioner must show a reasonable probability that, but for the attorney’s deficient
performance, the outcome of the trial would have been different. Id. at 761, 760 P.2d at 1177.
       The district court found that, after the jury rendered its verdict, Gosch left the courthouse
with his counsel in a confused and stressful state and informed counsel that he wanted to “appeal
everything.” The district court also found that, upon making such request, counsel directed
Gosch to contact counsel’s office the next day by scheduling an appointment because counsel
wanted to allow Gosch time “to digest the verdict, and more clearly articulate exactly what he
wanted to appeal.”      The district court found that, thereafter, Gosch never scheduled an
appointment and never spoke with counsel regarding an appeal. Additionally, the district court
found that counsel made several unsuccessful attempts to contact Gosch following his request to
“appeal everything,” including an attempt to make the public defender’s investigator available to
Gosch prior to his sentencing.       The district court also found that Gosch was notified at
sentencing of his right to appeal.
       The district court correctly noted that, pursuant to Beasley v. State, 126 Idaho 356, 361-
62, 883 P.2d 714, 719-20 (Ct. App. 1994), a defendant who proves that he or she was denied an
appeal because counsel did not file an appeal as requested states a meritorious claim for
ineffective assistance of counsel because the loss of the right to appeal is sufficient prejudice, in
and of itself, to support such claim. In that case, Beasley filed a petition for post-conviction
relief, asserting he received ineffective assistance of counsel because counsel failed to file an
appeal from Beasley’s judgment of conviction. Beasley and his trial counsel testified at the
hearing on his petition. Following the hearing, the district court denied relief and dismissed the
petition, concluding that Beasley failed on his claim to show deficient performance by counsel or
prejudice sufficient to satisfy the two-pronged standard for ineffective assistance derived from
Strickland. Beasley, 126 Idaho at 359, 883 P.2d at 717.
       On appeal, this Court noted that it was undisputed that Beasley advised his counsel of his
desire to appeal his conviction and that the record clearly showed that counsel understood
Beasley desired to appeal. We determined that the loss of the opportunity to appeal due to


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counsel’s failure to file an appeal when a criminal defendant requested that counsel do so was
sufficient prejudice to support a claim of ineffective assistance of counsel. Beasley, 126 Idaho at
362, 883 P.2d at 720. Having determined that Beasley’s counsel either neglected or refused to
file an appeal despite Beasley’s request, we concluded that deficient performance of counsel
deprived Beasley of his opportunity to appeal and that prejudice was presumed from such
performance.    Id.   Accordingly, Beasley’s judgment of conviction had to be vacated and
reentered so Beasley could perfect a timely appeal. Id.
       Here, at the hearing on Gosch’s petition, the district court stated:
              I think this case is distinguishable from Beasley in the sense that Mr.
       Gosch was afforded an opportunity to discuss an appeal. He was invited to make
       an appointment to discuss it. And he failed to follow up on multiple opportunities
       to do so. The Court finds that based upon the distinguishing facts that he did not
       make a request after the judgment was filed, he did not make an appointment after
       he was invited to do so, that the Beasley rule doesn’t apply. There was no binding
       request for an appeal to be filed. Accordingly, the petition is denied.

In the written conclusions of law, the district court stated that Beasley was distinguishable from
Gosch’s case “because Beasley requested an appeal of his conviction, and the record clearly
showed that trial counsel, and the public defender who assumed representation of Beasley after
entry of his judgment of conviction, understood that Beasley desired to appeal.”
       Relying upon Sanders v. State, 117 Idaho 939, 792 P.2d 964 (Ct. App. 1990); State v.
Dillard, 110 Idaho 834, 718 P.2d 1272 (Ct. App. 1986); and Flores v. State, 104 Idaho 191, 657
P.2d 488 (Ct. App. 1983), the district court properly concluded that its decision should be based
on whether Gosch’s desire to appeal was adequately communicated to his counsel and whether
counsel’s failure to file an appeal resulted from deficient performance that deprived Gosch of the
opportunity to appeal. The district court then reiterated that, in this case, Gosch made a single
request to “appeal everything” during a time of confusion and stress directly after the jury
rendered its verdict and before a sentence or judgment had been entered. The district court again
noted that, while Gosch’s counsel directed him to set up an appointment to discuss a potential
appeal, Gosch did not thereafter contact counsel or respond to attempted correspondence from
counsel and never again evidenced a desire to appeal. The district court determined that Gosch’s
request to appeal was not ignored by counsel but, rather, Gosch ignored counsel. The district
court also determined that it was not counsel’s inaction that caused Gosch to not appeal, but



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Gosch’s own inaction that resulted in failure to file an appeal. Thus, the district court concluded
that Gosch’s request was not fully and fairly communicated to counsel so as to warrant a
conclusion that it was counsel’s ineffective assistance that deprived Gosch of the opportunity to
appeal.     The district court finally concluded that counsel reasonably believed Gosch had
abandoned any desire to file an appeal because Gosch ignored counsel’s repeated attempts to
communicate with Gosch regarding an appeal.              Accordingly, the district court entered a
judgment dismissing Gosch’s petition.
           It is undisputed that, after the jury rendered its verdict, Gosch requested that counsel
“appeal everything.” It is also undisputed that, thereafter, Gosch’s counsel never filed an appeal.
The fact that Gosch requested that his counsel “appeal everything” after the jury rendered its
verdict as opposed to after sentencing and entry of judgment is of no consequence and does not
distinguish this case from Baesley. What is of consequence is that Gosch instructed his counsel
to appeal. Indeed, the United States Supreme Court has long held that:
          [A] lawyer who disregards specific instructions from the defendant to file a notice
          of appeal acts in a manner that is professionally unreasonable. See Rodriquez v.
          United States, 395 U.S. 327, 89 S. Ct. 1715, 23 L. Ed. 2d 340 (1969); cf. Peguero
          v. United States, 526 U.S. 23, 28, 119 S. Ct. 961, 143 L. Ed. 2d 18 (1999)
          (“[W]hen counsel fails to file a requested appeal, a defendant is entitled to [a new]
          appeal without showing that his appeal would likely have had merit”). This is so
          because a defendant who instructs counsel to initiate an appeal reasonably relies
          upon counsel to file the necessary notice. Counsel’s failure to do so cannot be
          considered a strategic decision; filing a notice of appeal is a purely ministerial
          task, and the failure to file reflects inattention to the defendant’s wishes.

Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (emphasis added). Gosch has cited no authority
to support a ruling that a request to file an appeal must be made after entry of judgment in order
to sustain a claim of deficient performance when counsel fails to file an appeal. We conclude
that Gosch’s request made after return of the verdict was sufficient to impose a duty on counsel
to file an appeal. 2 We need not address whether an appeal filed prior to entry of judgment would
have invoked appellate jurisdiction under Idaho Appellate Rule 17(e)(2) as argued by Gosch. In




2
        We do not address a request to appeal a conviction made prior to the jury reaching a
verdict.


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the instant situation, absent a withdrawal of the request, Gosch’s counsel was duty-bound to file
a notice of appeal before the time to file expired.
       The district court also erred in ruling that Beasley does not apply in this case because the
record does not show Gosch’s counsel did not understand that Gosch desired to appeal. At the
hearing on Gosch’s petition, Gosch’s counsel testified that, after the jury rendered its verdict and
counsel left the courthouse with Gosch, he requested that counsel “appeal everything.” Thus, the
record shows that Gosch’s counsel understood that Gosch desired to appeal.
       Similarly, the district court erred in ruling that Gosch’s request to file an appeal was not
fully and fairly communicated to counsel because, after making such request, Gosch did not
schedule an appointment with counsel as directed and did not respond to counsel’s attempted
correspondence prior to sentencing to discuss a potential appeal. This case is unlike Sanders
where this Court affirmed the district court’s dismissal of Sanders’ petition after the district
court, when faced with conflicting evidence about whether Sanders ever requested an appeal,
made a credibility determination and concluded that Sanders failed to communicate his desire to
appeal to counsel. Sanders, 117 Idaho at 940-41, 792 P.2d at 965-66. Here, as noted above, it is
undisputed that, after the jury rendered its verdict, Gosch requested that his counsel “appeal
everything” and the record shows that counsel understood that Gosch desired to appeal.
       While the district court concluded that Gosch’s failure to schedule an appointment with
counsel as directed and failure to respond to correspondence from counsel after he requested that
counsel “appeal everything” excused counsel from filing an appeal, such conclusion goes against
this Court’s holding in Beasley. Specifically, we held that if counsel either neglects or refuses to
file an appeal despite a criminal defendant’s request to do so, counsel is deficient. Beasley, 126
Idaho at 362, 883 P.2d at 720. Whether counsel was able to make contact with Gosch after the
jury rendered its verdict and Gosch requested that counsel “appeal everything,” absent an express
withdrawal of such request, counsel was required to file an appeal. 3




3
        We also note that Gosch appeared at sentencing with counsel. Gosch’s counsel testified
at the hearing on Gosch’s petition for post-conviction relief that, just prior to sentencing, counsel
reviewed the presentence investigation report with Gosch but did not discuss the possibility of an
appeal. Further, Gosch’s counsel testified that she did not discuss the possibility of an appeal
with Gosch after sentencing and entry of the judgment of conviction.


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       The district court’s conclusion that lack of contact with Gosch after he requested that
counsel “appeal everything” excused counsel from filing an appeal is also inconsistent with the
holding of the United States Supreme Court in Roe v. Flores-Ortega that a defendant reasonably
relies on counsel to file an appeal after instructing counsel to do so and that filing the notice of
appeal is a purely ministerial task. Additionally, to require that, after a defendant makes a
specific request that counsel file an appeal after the jury renders its verdict, the defendant must
schedule an appointment with counsel if directed to do so or respond to attempted
correspondence from counsel before such request will be honored permits counsel to condition
the filing of an appeal upon such requirements. This goes against precedent indicating that the
decision whether to prosecute an appeal rests with the defendant. See Mata v. State, 124 Idaho
588, 593, 861 P.2d 1253, 1258 (Ct. App. 1993).
       Again, it is undisputed that in this case, after the jury rendered its verdict in Gosch’s
underlying criminal case, Gosch requested that counsel “appeal everything.” The record shows
that Gosch’s counsel understood that Gosch desired to appeal and, thereafter, never filed an
appeal. We hold that, when a defendant makes an unequivocal request that counsel file an
appeal after the jury renders its verdict, counsel has an obligation to file such appeal unless the
defendant thereafter expressly communicates to counsel that he or she no longer wishes to pursue
the appeal. Here, there is no evidence that Gosch did so. 4 Thus, because Gosch’s counsel did
not file an appeal despite Gosch’s unequivocal request that counsel do so after the jury rendered
its verdict and Gosch did not expressly withdraw his request, we conclude that deficient
performance of counsel deprived Gosch of the opportunity to appeal and that prejudice is
presumed from such performance. Therefore, the district court erred by dismissing Gosch’s
petition for post-conviction relief. Gosch’s judgment of conviction must be amended to allow
Gosch to perfect a timely appeal.
                                                III.
                                         CONCLUSION
       Gosch demonstrated that he received ineffective assistance of counsel based upon his
counsel’s failure to file a notice of appeal in his underlying criminal case. Accordingly, we


4
       We recognize that, after an appeal is filed, an appellant might abandon his or her desire to
prosecute an appeal and that, presumably, such abandonment could be inferred from conduct
such as failure to communicate with counsel. We need not decide that question here.

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vacate the district court’s judgment dismissing Gosch’s petition for post-conviction relief and
remand to the district court for entry of an amended judgment of conviction consistent with this
opinion. Costs, but not attorney fees, are awarded to Gosch as the prevailing party on appeal.
       Chief Judge GRATTON and Judge GUTIERREZ, CONCUR.




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