               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 42444

THOMAS EDWARD PETERSON,                         )   2015 Unpublished Opinion No. 645
                                                )
       Petitioner-Appellant,                    )   Filed: September 29, 2015
                                                )
v.                                              )   Stephen W. Kenyon, Clerk
                                                )
STATE OF IDAHO,                                 )   THIS IS AN UNPUBLISHED
                                                )   OPINION AND SHALL NOT
       Respondent.                              )   BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Patrick H. Owen, District Judge.

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

       Dennis A. Benjamin of Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for
       appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

MELANSON, Chief Judge
       Thomas Edward Peterson appeals from the district court’s judgment summarily
dismissing his petition for post-conviction relief. For the reasons set forth below, we vacate and
remand.
       In September 2011, Peterson pled guilty to felony violation of a no-contact order and
admitted to having violated his probation. The district court imposed a unified term of five
years, with a minimum period of confinement of one and one-half years for violating the no-
contact order. Following the entry of the judgment of conviction, Peterson filed an I.C.R. 35
motion for reduction of his sentence.
       In February 2012, with the Rule 35 motion still pending before the district court, Peterson
filed a notice of appeal from his judgment of conviction for violation of the no-contact order.

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The Idaho Supreme Court entered an order conditionally dismissing the appeal on the ground
that it was untimely and later dismissed the appeal on that basis. Meanwhile, the district court
denied Peterson’s Rule 35 motion and this Court affirmed in an unpublished opinion. State v.
Peterson, Docket Nos. 39146, 39147, and 39783 (Ct. App. Mar. 19, 2013).
       Peterson then filed a pro se petition for post-conviction relief asserting, among other
things, that his trial counsel was ineffective for failing to file a timely notice of appeal from his
felony no-contact order judgment of conviction.          The state moved to summarily dismiss
Peterson’s petition. The district court granted the state’s motion as to Peterson’s post-conviction
claims, with the exception of the claim that Peterson’s trial counsel was ineffective for failing to
file a timely notice of appeal.
       At an evidentiary hearing, the parties stipulated that the appeal was, in fact, timely
pursuant to Idaho Appellate Rule 14(a), which provides in relevant part:
       The time for an appeal from any criminal judgment, order or sentence in an action
       is terminated by the filing of a motion within fourteen (14) days of the entry of the
       judgment which, if granted, could affect the judgment, order or sentence in the
       action, in which case the appeal period for the judgment and sentence commences
       to run upon the date of the clerk’s filing stamp on the order deciding such motion.

The parties stipulated that, because Peterson filed a Rule 35 motion within fourteen days of the
entry of judgment and because he subsequently filed his notice of appeal from his judgment of
conviction before the district court denied his Rule 35 motion, the February 2012 notice of
appeal was timely. The district court agreed with the parties, concluding that the time for filing
an appeal was tolled pending the outcome of the Rule 35 motion. Accordingly, the district court
determined that Peterson’s appeal was timely and encouraged Peterson to file an amended
petition asserting ineffective assistance of appellate counsel for failing to address the issue of the
time for appeal being tolled.
       Peterson then filed an amended petition for post-conviction relief to include a new claim
of ineffective assistance of appellate counsel. Peterson argued that his appellate counsel should
have been aware of his pending Rule 35 motion and should have responded to the Idaho
Supreme Court’s notice of conditional dismissal by asserting that Peterson’s February 2012
notice of appeal was timely pursuant to I.A.R. 14(a). The state conceded that appellate counsel’s
performance was deficient, but moved for summary dismissal on the ground that Peterson failed


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to demonstrate that he was prejudiced by his counsel’s deficient performance. The district court
granted the state’s motion on the same ground. Specifically, the district court reasoned that
Peterson had only sought to challenge his sentence on appeal, and that this Court had already
affirmed the denial of his Rule 35 motion and his sentence. Peterson timely appeals.
       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 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); 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.
       Peterson 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.
Specifically, he argues that his appellate counsel permitted his appeal to be dismissed in part,
which amounted to deficient performance and the loss of the direct appeal was prejudicial per se.
The state argues that even assuming that Peterson’s appellate counsel’s performance was
deficient, Peterson has failed to demonstrate prejudice because he had the opportunity to
challenge the district court’s denial of his Rule 35 motion as well as his sentence and conviction,
but he declined to do so.
       This Court addressed a similar issue in Beasley v. State, 126 Idaho 356, 361-62, 883 P.2d
714, 719-20 (Ct. App. 1994). In that case, Beasley filed a petition for post-conviction relief,
asserting he received ineffective assistance of counsel because his counsel failed to file an appeal
from Beasley’s judgment of conviction. The district court denied relief and dismissed the
petition, concluding that Beasley failed to show deficient performance by counsel or prejudice
sufficient to satisfy the two-pronged Strickland test. Beasley, 126 Idaho at 359, 883 P.2d at 717.
On appeal, this Court held that the loss of the opportunity to appeal due to counsel’s failure to
file an appeal, when a criminal defendant requested that counsel do so, was sufficient prejudice


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to support a claim of ineffective assistance of counsel. Id. at 362, 883 P.2d at 720. Thus, 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 was vacated and reentered so Beasley could perfect a timely appeal. Id.
       In this case, at the hearing on Peterson’s petition, the district court found that appellate
counsel failed to recognize Peterson’s appeal was, in fact, timely and failed to bring to the
Supreme Court’s attention that the time for filing his appeal had been tolled. Like the defendant
in Beasley, Peterson lost the right to appeal his judgment of conviction. Peterson’s loss of his
right to appeal is sufficient prejudice, in and of itself, to support a claim of ineffective assistance
of counsel.1 Therefore, the district court erred by summarily dismissing Peterson’s petition for
post-conviction relief.    Thus, we vacate the district court’s order summarily dismissing
Peterson’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 Peterson on appeal.
       Judge GUTIERREZ and Judge HUSKEY, CONCUR.




1
        We note that Peterson’s appeal from the denial of his Rule 35 motion was not a substitute
for an appeal from his sentence, particularly because he did not present any new information to
support his Rule 35 motion.

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