               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 35473

GIOVANNI M. MENDIOLA,                            )
                                                 )      2010 Opinion No. 66
       Petitioner-Appellant,                     )
                                                 )      Filed: September 21, 2010
v.                                               )
                                                 )      Stephen W. Kenyon, Clerk
STATE OF IDAHO,                                  )
                                                 )
       Respondent.                               )
                                                 )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. John T. Mitchell, District Judge.

       Order denying application for post-conviction relief, affirmed.

       Molly J. Huskey, 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
       Giovanni M. Mendiola appeals from the district court’s order denying his application for
post-conviction relief. For the reasons set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       Mendiola was charged with nine felony counts, including robbery, conspiracy to commit
robbery, kidnapping, conspiracy to commit kidnapping, and first degree murder.          Two of
Mendiola’s brothers and a former brother-in-law were also charged with multiple felonies
stemming from the same incidents that gave rise to Mendiola’s charges.         In exchange for
Mendiola’s guilty plea to second degree murder, the state agreed to dismiss the remaining
charges against Mendiola and reduce the charges against his brothers and brother-in-law to one
count each of accessory to a felony. In addition, the state agreed that his sisters would not be
prosecuted.



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       At a change of plea hearing, Mendiola entered an Alford1 plea to second degree murder.
During the plea colloquy, Mendiola asserted that he was pleading guilty to spare his brothers and
sisters from prosecution. Mendiola’s trial counsel stated on the record that Mendiola was acting
against the advice of counsel by pleading guilty. The district court accepted Mendiola’s plea,
concluding that the plea was voluntarily made and that there was a factual basis for the plea. At
sentencing, Mendiola once again asserted that he was pleading guilty to protect his brothers and
sisters and, for the first time, also contended that he committed the murder in self-defense. With
the exception of Mendiola’s statements, Mendiola’s counsel did not present any other evidence
at the change of plea hearing or the sentencing hearing to establish that Mendiola had acted in
self-defense.
       Mendiola was sentenced to a unified term of life in prison, with a minimum period of
confinement of eight years. He did not appeal his judgment of conviction or the sentence
imposed. Mendiola filed an application for post-conviction relief, claiming that his guilty plea
was not voluntarily made and that there was no factual basis for the guilty plea. Also, Mendiola
argued that his counsel was ineffective for failing to contest the district court’s conclusion that
there was a factual basis for his plea and for failing to present mitigating evidence at sentencing.
After an evidentiary hearing on all of Mendiola’s claims, the district court dismissed Mendiola’s
application. Mendiola appeals.
                                                II.
                                   STANDARD OF REVIEW
       An application for post-conviction relief initiates a proceeding that is civil in nature.
State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Clark v. State, 92 Idaho 827,
830, 452 P.2d 54, 57 (1969); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct.
App. 1992). Like a plaintiff in a civil action, the applicant must prove by a preponderance of
evidence the allegations upon which the request for post-conviction relief is based. I.C. § 19-
4907; Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990).
       In order to prevail in a post-conviction proceeding, the applicant must prove the
allegations by a preponderance of the evidence. I.C. § 19-4907; Stuart v. State, 118 Idaho 865,



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



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801 P.2d 1216 (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 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
       Mendiola asserts that the district court erred when it dismissed his application for post-
conviction relief.   Specifically, Mendiola argues that the district court’s findings of fact
regarding the voluntariness of his guilty plea and the factual basis for his plea were clearly
erroneous.   In addition, Mendiola asserts that the district court applied the incorrect legal
standard when it determined that his guilty plea was voluntary. Mendiola also alleges that the
district erred by denying his claims of ineffective assistance of counsel. The state responds that
Mendiola’s claims involving the guilty plea should have been raised on direct appeal and are
therefore barred.
A.     Application of the Uniform Post-Conviction Procedure Act
       The state argues that Mendiola’s claims involving his guilty plea are not properly before
this Court on appeal.     Specifically, the state asserts that these claims are barred because
Mendiola’s requested relief is based solely on a transcript of proceedings before the district court
below and because Mendiola has not presented any new or additional evidence. In other words,
the state argues that these claims should have been raised on direct appeal.
       Under the Uniform Post-Conviction Procedure Act, post-conviction relief is available
where “there exists evidence of material facts, not previously presented and heard, that requires
vacation of the conviction or sentence in the interest of justice.” I.C. § 19-4901(a)(4). An
application for post-conviction relief is not a substitute for an appeal. I.C. § 19-4901(b). A
claim or issue which was or could have been raised on appeal may not be considered in post-
conviction proceedings. Id.; Whitehawk v. State, 116 Idaho 831, 832-33, 780 P.2d 153, 154-55
(Ct. App. 1989).


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        In support of its argument, the state relies in part on Ricca v. State, 124 Idaho 894, 865
P.2d 985 (Ct. App. 1993). In that case, this Court held that a defendant may challenge the
validity of a guilty plea during post-conviction proceedings so long as the defendant failed to file
a motion to withdraw guilty plea below. Id. at 896-97, 865 P.2d at 987-88. In Ricca, the
defendant alleged that his plea was involuntary because he was under the influence of medication
at the time of his guilty plea and that medical treatment was withheld from him until after he had
consented to enter his guilty plea. This Court held that Ricca’s application for post-conviction
relief was his first challenge to the validity of his guilty plea. Id. This Court further held that,
because Ricca had not filed a direct appeal or a motion to withdraw his guilty plea below, he was
permitted to assert those claims for the first time in his application. Id.
        In this case, Mendiola’s application sought vacation of his judgment of conviction and
the sentence imposed. Specifically, Mendiola argued that his guilty plea was not voluntary and
should be set aside because there was no factual basis for his plea and because he was coerced by
the terms of his plea agreement, which provided for reduced criminal charges for his brothers
and no charges at all for his sisters. Similar to the defendant in Ricca, Mendiola did not file a
direct appeal or challenge the validity of his plea on a motion to withdraw his guilty plea. As
such, these claims were not previously presented or heard. While Mendiola’s application did not
specifically seek to withdraw his guilty plea, the circumstances of this case are similar to Ricca
because Mendiola alleged that his plea was involuntary and requested that his plea be set aside.
In addition, during the evidentiary hearing, counsel for both the state and Mendiola referred to
Mendiola as being able to withdraw his plea if he prevailed on his application.
        Further, while the state argues that Mendiola presented no new evidence in support of his
claims, trial counsel’s testimony at the evidentiary hearing provided additional information that
was not presented to the district court below. For example, trial counsel further explained what
he meant when he stipulated that the grand jury testimony provided a factual basis for
Mendiola’s plea. Accordingly, Mendiola was not barred from raising claims challenging the
validity of his guilty plea in his application for post-conviction relief. Therefore, the district
court did not err in determining that Mendiola’s claims regarding his guilty plea were properly
before the district court.




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B.     Voluntariness of Guilty Plea
       Mendiola argues that the district court erred by finding that Mendiola was not credible
when he stated at his guilty plea hearing that the only reason he was pleading guilty was to spare
his siblings from criminal charges. Mendiola also asserts that the district court applied the wrong
legal standard when it determined that Mendiola’s guilty plea was voluntary.
       Mendiola contends that the district court’s finding that Mendiola was not credible was
clearly erroneous because he repeatedly asserted that the only reason he was pleading guilty was
to shield his brothers and sisters from criminal prosecution. Mendiola is correct that he asserted
such a claim at the guilty plea hearing, at sentencing, and throughout proceedings on his
application for post-conviction relief. However, as stated above, the credibility of the witnesses,
the weight to be given to their testimony, and the inferences to be drawn from the evidence are
matters solely within the province of the district court. Larkin, 115 Idaho at 73, 764 P.2d at 440.
In exchange for Mendiola’s guilty plea, the state agreed to dismiss numerous felony charges
against Mendiola, including charges of robbery, kidnapping, and first degree murder, which
demonstrates that Mendiola received a substantial benefit for his guilty plea. The district court’s
findings were not clearly erroneous.
       Mendiola also argues that the district court erred by applying an incorrect legal standard
when determining that Mendiola’s plea was voluntary. Specifically, Mendiola argues that the
district court should have applied the standard established by this Court in Mata v. State, 124
Idaho 588, 861 P.2d 1253 (Ct. App. 1993). Mendiola asserts that his “package” plea deal, which
involved sparing his siblings from prosecution, was coercive under Mata. Mendiola contends his
plea was not voluntarily made.
       As mentioned above, we freely review the district court’s application of the law. Nellsch,
122 Idaho at 434, 835 P.2d at 669. In its order dismissing Mendiola’s application for post-
conviction relief, the district court referred to two standards for examining whether a “package”
plea deal is coercive. The first was based on federal circuit court of appeals decisions, which
have held that package plea deals are not impermissible, but that special care must be taken in
reviewing guilty pleas entered in exchange for a prosecutor’s promise of lenient treatment of a
third party. See United States v. Carr, 80 F.3d 413, 416-17 (10th Cir. 1996); Politte v. United
States, 852 F.2d 924, 929-30 & n.13 (7th Cir. 1988); United States v. Wheat, 813 F.2d 1399,
1405 (9th Cir. 1987). The other standard was established by the California Supreme Court in In


                                                5
re Ibarra, 666 P.2d 980, 986-87 (Cal. 1983). In this case, the district court applied the seven-
factor test set out in Ibarra and concluded that Mendiola’s package plea deal was not coercive.
In its decision, the district court correctly stated that Idaho appellate courts have not adopted the
standard set out in Ibarra. However, Mendiola is correct that, in Mata, this Court adopted the
federal standard mentioned above. While the district court in this case did not specifically cite to
Mata in making its decision, it referred to one of the cases that this Court relied on in reaching its
conclusion in Mata and described the same “special care” standard applicable to such package
plea deals. See Politte, 852 F.2d at 929-30 & n.13.
       In the Mata case, Mata and his wife were arrested and charged with grand theft. In
exchange for Mata’s guilty plea, the state agreed to dismiss the charges against his wife and
recommend restitution and probation at sentencing. At sentencing, Mata requested to change his
plea, due in part to the extreme pressure he felt to plead guilty. Specifically, Mata asserted that
he was concerned about his wife’s incarceration and for his children who were in foster care.
The district court denied Mata’s request to withdraw his guilty plea and Mata appealed.
Following a review of state and federal cases involving package plea deals, this Court concluded
that, while courts have recognized the inherent dangers to third-party plea negotiations, courts
have been unwilling to upset the bargained-for result of the plea agreement where the state’s
inclusion of the third party was done in good faith. Mata, 124 Idaho at 594-95, 861 P.2d at
1259-60. This Court then determined that the anxiety and pressure generated by Mata’s family
situation did not constitute impermissible coercion. Id. at 595, 861 P.2d at 1260.
       Applying the Mata standard to the plea in this case, we are unable to conclude that
Mendiola’s plea deal was so coercive that it rendered his guilty plea involuntary. At the change
of plea hearing, defense counsel and the state described in detail the contents of the plea
agreement involving Mendiola, his brothers, and his sisters. Mendiola’s brothers were initially
charged with numerous felonies. The plea agreement provided that the state would dismiss the
felonies, charge each brother with one count of accessory to a felony, and recommend sentences
of two years and retained jurisdiction.      In addition, the state agreed to work with federal
authorities in order to ensure that Mendiola’s sisters were not charged with any crime. The
district court inquired of specific promises made to Mendiola other than those contained in the
plea agreement. Mendiola responded that there were no physical threats made to him, but that he
was trying to salvage what was left of his family. The district court inquired further about


                                                  6
specific threats made, and Mendiola responded that he did not want to deprive his brothers’
children of their fathers. However, Mendiola also stated that he was making a fully-informed
decision and that he agreed with the plea agreement but wanted to put on the record that he was
pleading guilty for his family.
       Similar to the circumstances in Mata, the anxiety and pressure generated by Mendiola’s
family situation did not constitute impermissible coercion. The district court took special care to
ensure that no specific threats were made against Mendiola in order to coerce him to plead
guilty. The district court followed up with Mendiola after he responded that threats were being
made against his family. In addition, it appears from the record that the inclusion of Mendiola’s
brothers and sisters in the plea deal was done in good faith. Grand jury testimony implicated the
brothers in a robbery and kidnapping and at least one of the brothers was present at the time of
the murder.    Further, grand jury testimony indicated that the victim’s car was stored at
Mendiola’s sisters’ house in Seattle and that it was found by police near the sisters’ home soon
after the victim’s body was discovered. Therefore, Mendiola has failed to show that the district
court erred when it determined that Mendiola’s plea was voluntary.
C.     Factual Basis for Guilty Plea
       In his application for post-conviction relief, Mendiola argued that the district court erred
by accepting his plea at the plea hearing without a factual basis. In its order denying Mendiola’s
application for post-conviction relief, the district court concluded that the evidence before the
district court at the guilty plea hearing was sufficient to provide a factual basis for Mendiola’s
guilty plea. Mendiola argues that the district court’s conclusion was clearly erroneous because
trial counsel’s statement at the plea hearing was not sufficient to establish a factual basis for the
Alford plea and because the district court failed to read the grand jury transcript prior to
accepting Mendiola’s plea.
       In the case of an Alford plea, an accused may consent to the imposition of a prison
sentence despite professing his or her innocence as long as a factual basis for the plea is
demonstrated by the state and the defendant expresses a desire to enter such a plea. State v.
Ramirez, 122 Idaho 830, 834, 839 P.2d 1244, 1248 (Ct. App. 1992); Amerson v. State, 119 Idaho
994, 996, 812 P.2d 301, 303 (Ct. App. 1991). In this case, the district court accurately stated that
a factual basis was required prior to accepting Mendiola’s guilty plea. Much has been made of
the following exchange between trial counsel and the district court at the change of plea hearing:


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               THE COURT:       I have been presented with a copy of the
                                preliminary hearing transcript, but I have not read it
                                because there has been no motions that have been
                                scheduled that were immediately pending before the
                                Court, and so since this is an [Alford] plea, I need to
                                ask [the prosecutor] or [trial counsel] the factual
                                record that would establish this charge.
               [TRIAL COUNSEL]: Well, Judge, I would stipulate that the grand jury
                                transcript establishes probable cause for the
                                Amended Indictment.
               THE COURT:       Okay.       Do you agree with that statement,
                                [prosecutor]?
               [PROSECUTOR]:    Yes, Your honor.
               THE COURT:       I find then that there is a factual predicate for the
                                charge made in the Amended Indictment and order
                                the Amended Indictment be filed and I will accept
                                the plea of guilty of Mr. Giovanni Mendiola and
                                order it be entered of record.

We note that there was no preliminary hearing in this case and, presumably, the district court was
referring to the grand jury transcript. Mendiola argues that the district court erred by accepting
these statements as the factual basis for Mendiola’s guilty plea However, later on in the hearing,
the following exchange occurred between the district court and the state:
               THE COURT:             Anything else that we need to take up in Mr.
                                      Giovanni Mendiola’s case, [prosecutor]?
               [PROSECUTOR]:          No, Your honor. I just wanted to clarify on the
                                      [Alford] plea I know counsel stipulated to the grand
                                      jury transcript, but I just want to state for the record
                                      that the State would be able to provide the -- prove
                                      each and every element to second degree murder to
                                      which the defendant has pled which is also the basis
                                      of the grand jury transcript, so I just want to say that
                                      for the record that we are prepared to prove each
                                      and every element of the crime to which he’s pled
                                      guilty beyond a reasonable doubt.

       At the evidentiary hearing, trial counsel testified that it was not his intention to provide a
factual basis for Mendiola’s guilty plea when he stated, “I would stipulate that the grand jury
transcript establishes probable cause for the Amended Indictment.” However, while the district
court and counsel did not specifically say the words “factual basis” when determining whether or
not to accept Mendiola’s Alford plea, the statements the court and counsel made referring to facts


                                                 8
establishing the charge are sufficient to demonstrate that the court was referring to a factual basis
for the guilty plea. Further, the state made clear during the change of plea hearing that it could
prove beyond a reasonable doubt each of the elements of second degree murder. In determining
whether a factual basis for a guilty plea exists, we look to the entire record before the trial court
at the time the plea was accepted. Ramirez, 122 Idaho at 834, 839 P.2d at 1248; Fowler v. State,
109 Idaho 1002, 1005, 712 P.2d 703, 706 (Ct. App. 1985).
       Mendiola argues that the district court admitted to failing to read the grand jury transcript
and, as such, the court could not have relied on it as a factual basis for Mendiola’s guilty plea.
However, both the state and defense counsel referred to the grand jury transcript as providing the
factual basis for the charge of second degree murder. In addition, the grand jury transcript was
available to the district court for review at the time Mendiola entered his guilty plea. The
evidence presented to the grand jury included testimony describing the circumstances leading up
to the murder, the murder itself, and Mendiola’s conduct afterward. Two witnesses testified
before the grand jury that Mendiola admitted to killing the victim by stabbing the victim in the
throat. One grand jury witness testified that Mendiola admitted to strangling and squeezing the
victim’s neck so tightly that blood came out of the victim’s mouth and nose. That same witness
also testified that, after the murder, Mendiola stole marijuana from the victim’s residence in
order to sell it and drove the victim’s car to his sisters’ home in Seattle. In addition, a police
officer testified that the victim’s body was found on a steep, wooded embankment off of a
secluded road approximately one month after the victim went missing. The officer further
testified that the body appeared to have been dragged to the spot where it was found. Such
evidence provides a factual basis for Mendiola’s guilty plea to second degree murder. While
Mendiola argues that no factual basis for the element of malice was presented to the district
court, evidence of Mendiola’s malice was demonstrated by the grand jury testimony mentioned
above. As such, the district court did not err in finding that there was a factual basis for
Mendiola’s plea.
D.     Ineffective Assistance of Counsel
       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


                                                 9
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 applicant 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). Where, as
here, the defendant was convicted upon a guilty plea, to satisfy the prejudice element, the
claimant must show that there is a reasonable probability that, but for counsel’s errors, he or she
would not have pled guilty and would have insisted on going to trial. Plant v. State, 143 Idaho
758, 762, 152 P.3d 629, 633 (Ct. App. 2006). This Court has long adhered to the proposition
that tactical or strategic decisions of trial counsel will not be second-guessed on appeal unless
those decisions are based on inadequate preparation, ignorance of relevant law or other
shortcomings capable of objective evaluation. Howard v. State, 126 Idaho 231, 233, 880 P.2d
261, 263 (Ct. App. 1994).
        Mendiola claims that his counsel was ineffective for failing to challenge the lack of a
factual basis in support of his guilty plea at the change of plea hearing and for failing to present
mitigating evidence at sentencing to demonstrate that Mendiola lacked malice when he murdered
the victim. As discussed in the previous section, the grand jury testimony created a factual basis
for Mendiola’s guilty plea.      Therefore, Mendiola has failed to show how his counsel was
deficient by failing to object on that basis.
        Mendiola claimed for the first time at sentencing that he killed the victim in self-defense.
In his application, Mendiola argued that his trial counsel was ineffective for failing to present
eyewitness testimony and evidence at sentencing that the victim was under the influence of
drugs. However, during proceedings on the application, the district court weighed such evidence
against the grand jury testimony and concluded that Mendiola’s claims of self-defense were not
credible. As noted previously, 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. Larkin, 115 Idaho at 73, 764 P.2d at 440. The district court found
that the statements Mendiola made to the district court at sentencing regarding self-defense,
along with at least one statement from a person who was present at the murder, were unsworn.
As a result, the district court did not give those statements as much weight as sworn grand jury
testimony. In addition, the district court determined that autopsy evidence demonstrating that the
victim was under the influence of drugs did not support Mendiola’s version of events.


                                                10
       The district court also found that the grand jury testimony regarding Mendiola’s actions
after the murder contradicted the behavior of a person who had killed someone in self-defense.
As mentioned above, grand jury testimony illustrated that Mendiola admitted to two different
grand jury witnesses that he strangled and stabbed the victim. The testimony also indicated that
Mendiola left the victim’s body in a wooded embankment, stole the victim’s car, broke into the
victim’s home to steal marijuana, and failed to contact police. As such, the district court’s
findings of fact regarding Mendiola’s claim of self-defense were not erroneous. Therefore,
because the district court determined that such evidence was not credible and was contradicted
by the grand jury testimony, Mendiola was not prejudiced by trial counsel’s failure to present
evidence that Mendiola committed the murder in self-defense.
                                               IV.
                                        CONCLUSION
       Mendiola has failed to show that the district court’s findings were clearly erroneous.
Specifically, the district court did not err by finding that Mendiola’s guilty plea was voluntarily
made and that there was a factual basis for the guilty plea. In addition, Mendiola has failed to
show that the district court erred by determining that trial counsel did not provide ineffective
assistance of counsel. Therefore, the district court’s order denying Mendiola’s application for
post-conviction relief is affirmed. No costs or attorney fees are awarded on appeal.
       Judge GUTIERREZ and Judge GRATTON, CONCUR.




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