               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 45037

WILLIAM JACK BIAS,                              )
                                                )
       Petitioner-Respondent,                   ) Filed: August 27, 2018
                                                )
v.                                              ) Karel A. Lehrman, Clerk
                                                )
STATE OF IDAHO,                                 )
                                                )
       Respondent-Appellant.                    )
                                                )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Madison County. Hon. Gregory W. Moeller, District Judge.

       Judgment granting, in part, petition for post-conviction relief, affirmed.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for appellant. Kenneth K. Jorgensen argued.

       Eric D. Fredericksen, State Appellate Public Defender; Reed P. Anderson, Deputy
       Appellate Public Defender, Boise, for respondent. Reed P. Anderson argued.

                   ________________________________________________

GRATTON, Chief Judge
       The State appeals from the district court’s judgment granting, in part, William Jack
Bias’s petition for post-conviction relief. We affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Bias pled guilty to felony driving under the influence, Idaho Code §§ 18-8004; 18-
8005(5). The district court imposed a ten-year sentence with five years determinate. After
sentencing, Bias filed a petition for post-conviction relief challenging his conviction and
sentence. Bias asserted several ineffective assistance of counsel claims, one of which alleged
that Bias’s trial counsel was ineffective for failing to file a motion to suppress “challeng[ing]
proto call [sic] of stop, and jurisdiction of law enforcement.” The district court appointed post-
conviction counsel after finding that Bias’s petition gave rise to the possibility of a valid claim

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on at least a few of his ineffective assistance of counsel claims. Bias’s post-conviction counsel
did not file an amended petition or supplement the original petition. The State filed an answer
denying all of the claims in Bias’s petition.
       The district court subsequently conducted evidentiary hearings primarily focused on
issues related to Bias’s ineffective assistance of counsel claims. At the second evidentiary
hearing, the parties agreed to limit the scope of the hearing to the issue of whether there were
meritorious grounds for a motion to suppress based on Bias’s belief that the officer was acting
outside of his jurisdictional boundaries when he stopped and arrested Bias. The State called the
officer who stopped Bias to testify as to where the traffic stop had occurred and then introduced
dashcam video to confirm the location of the stop. This was the first time that either Bias, post-
conviction counsel, or trial counsel had seen the video. 1 Based on the video, Bias’s post-
conviction counsel conceded there was no jurisdictional issue, but asserted Bias’s trial counsel
was ineffective for failing to challenge the reasonable suspicion for the stop. The State objected
to the court’s consideration of the reasonable suspicion claim arguing the court was allowing
Bias to delve into new areas outside of the limited scope of the hearing. Over the State’s
objection, the court held a third evidentiary hearing to address the reasonable suspicion claim.
Following the hearing, the district court granted Bias’s petition for post-conviction relief insofar
as he had asserted trial counsel was ineffective for failing to file a motion to suppress challenging
the reasonable suspicion for the stop. The State timely appeals.
                                                 II.
                                            ANALYSIS
       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); Baxter v. State, 149 Idaho 859, 861, 243 P.3d 675, 677 (Ct.
App. 2010). When reviewing a decision granting post-conviction relief after an evidentiary
hearing, an appellate court will not disturb the lower court’s factual findings unless they are

1
       Although the district court noted it was not an intentional act on behalf of the prosecutor,
the court expressed its serious concern about the prosecution’s apparent violation of Brady v.
Maryland, 373 U.S. 83 (1963). The court concluded that the Idaho Criminal Rules required
automatic disclosure of the dashcam video despite trial counsel’s failure to make the discovery
request. However, the district court also concluded that Bias did not properly plead or raise a
claim based on a Brady violation in his petition.


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clearly erroneous. Idaho Rule of Civil Procedure 52(a); Cook v. State, 157 Idaho 775, 777, 339
P.3d 1179, 1181 (Ct. App. 2014). 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 v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004);
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.
A.     Notice and Implied Consent
       The State asserts the district court erred by considering Bias’s claim that his trial counsel
was ineffective for not challenging the reasonable suspicion for the stop. The State argues the
court erroneously held that Bias had pled the theory that his trial counsel was ineffective for not
challenging the reasonable suspicion for the stop. According to the State, a review of Bias’s
petition reveals that he did not plead the theory or otherwise provide notice that he was
challenging his conviction on that basis. The State also argues that the district court’s finding
that “[c]ounsel for the State objected” to consideration of the claim that counsel was ineffective
for not challenging the reasonable suspicion of the stop forecloses any claim that the issue was
litigated with the express or implied consent of the State.
       To the contrary, Bias asserts the State has failed to show that the district court erred when
it considered the claim that his trial counsel was ineffective for not challenging the reasonable
suspicion for the stop. Bias argues the State’s lack of notice argument is disingenuous because
the State was provided ample notice of the claim.          According to Bias, the district court’s
willingness to grant the State’s request to file a brief addressing the claim and to thereafter
conduct an evidentiary hearing specifically addressing the claim demonstrates that the State had
ample notice. Bias argues his post-conviction counsel effectively amended the pleading to
conform to the evidence after the State introduced the dashcam video at the second evidentiary
hearing, and he also argues the issue of whether his trial counsel was ineffective for failing to file
a motion to suppress challenging the reasonable suspicion for the traffic stop was tried with the
implied consent of the State.
       The issue of reasonable suspicion for the traffic stop was not specifically raised in the
petition for post-conviction relief, but the legality of the stop was generally raised. Bias did,
however, expressly raise the claim orally at the end of the second evidentiary hearing. The State

                                                  3
objected to the court considering the reasonable suspicion claim. Although the district court
noted the State’s objection, it nevertheless determined to consider the claim and overruled the
objection by allowing the claim to go forward. The court also provided the State the opportunity
to further object on procedural grounds and on the merits by granting the prosecutor’s request for
forty-five days to brief the claim and by conducting a third evidentiary hearing on the claim. The
State did not object to the procedure which was employed to include and consider the claim,
including that the district court did not require a written amendment of the pleadings. While the
State was not provided specific notice of the reasonable suspicion claim in the original petition, it
was provided ample notice of the existence of and basis for the claim at the end of the second
evidentiary hearing. The fact that the district court allowed the claim to go forward without
formal amendment of the pleadings is inconsequential. The State has not claimed that it was
prejudiced by the procedure employed by the district court or in its ability to address the claim
on the merits.
       In addition, or alternatively, the record reveals the issue of whether Bias’s trial counsel
was ineffective for failing to challenge the reasonable suspicion for the traffic stop was tried with
the implied consent of the State. Under the Idaho Rules of Civil Procedure, the trial court is not
limited to deciding the case on the issues as framed by the pleadings. M. K. Transport, Inc. v.
Grover, 101 Idaho 345, 349, 612 P.2d 1192, 1196 (1980). The district court’s authority under
I.R.C.P. 15(b) and I.R.C.P. 54(c) to determine a case upon an unpled theory is limited by the
provision in I.R.C.P. 15(b)(2) that requires the unpled issues to have been tried by express or
implied consent of the parties for the court to consider them. See id. When issues not raised by
the pleadings are tried by express or implied consent of the parties, a motion to amend pleadings
to conform to the evidence under I.R.C.P. 15(b) should be granted. Lynch v. Cheney, 98 Idaho
238, 241, 561 P.2d 380, 383 (1977). The requirement that the unpled issues be tried by at least
the implied consent of the parties assures that the parties have notice of the issues before the
court and an opportunity to address those issues with evidence and argument. Grover, 101 Idaho
at 349, 612 P.2d at 1196. Under the language of the rule, the formality of an amendment to the
pleadings is not necessary if the court concludes that the issues were in fact tried. Cheney, 98
Idaho at 241, 561 P.2d at 383.
       Although the court allowed the reasonable suspicion claim to go forward over the State’s
objection, it was careful to provide the State ample time and opportunity to address the claim

                                                 4
with evidence and argument. The court granted the prosecutor’s request for forty-five days to
file a brief addressing the claim.     Despite the State’s failure to address the merits or the
procedural posture of the claim by briefing the issue, the State did present evidence and
argument at the third evidentiary hearing addressing the claim. Specifically, the State called the
following individuals to testify: Bias’s trial counsel, the officer who stopped Bias, a drug
recognition expert from the Rexburg police department, and an officer with specialized training
in accident reconstruction from the Rexburg police department. Based on the evidence and the
testimony of these witnesses, the State argued there were articulable facts that justified
reasonable suspicion for Bias’s DUI stop. The State also argued that despite his failure to
request or review the dashcam video, trial counsel’s performance was reasonable given the
contents of the police report and his discussions with Bias. Ultimately, however, the Court ruled
in Bias’s favor.
       Thus, the State clearly had notice of the claim and an opportunity to address it with
evidence and argument before the court ruled on the issue. Accordingly, the district court did not
err by considering Bias’s claim that his trial counsel was ineffective for not challenging the
reasonable suspicion for the stop.
B.     Applying Correct Legal Standard
       The State also asserts that even if the claim is considered on the merits, the district court
erred in granting post-conviction relief because it applied an incorrect legal standard to the claim
that trial counsel was ineffective for failing to file a motion to suppress challenging the
reasonable suspicion for the stop. 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). Where,
as here, the petitioner was convicted upon a guilty plea, to satisfy the prejudice element, the
petitioner must show that there is a reasonable probability that, but for counsel’s errors, he or she

                                                 5
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. Gonzales v. State, 151 Idaho 168, 172, 254 P.3d
69, 73 (Ct. App. 2011).
       To show that trial counsel’s representation fell below an objective standard of
reasonableness where the claim of ineffective assistance of counsel centers on trial counsel’s
failure to file a motion to suppress, the Court’s inquiry is two-fold. First, the Court must
determine whether or not the motion should have been granted. Wurdemann v. State, 161 Idaho
713, 718, 390 P.3d 439, 444 (2017). Once it has been determined that the motion should have
been granted had it been filed, the petitioner is still required to overcome the presumption that
the decision not to file the motion was within the wide range of permissible discretion and trial
strategy. Id.
       The State argues the district court failed to apply the second step of this two-step analysis
and thus did not determine whether Bias had overcome the presumption that the decision not to
file the motion was within the wide range of permissible discretion and trial strategy. According
to the State, the court erroneously concluded that finding the motion to suppress would be
granted was alone sufficient to conclude trial counsel’s performance was deficient. The State
argues application of the correct legal standard leads to the opposite result reached by the district
court because trial counsel’s decision to not pursue a motion to suppress after he had reviewed
the police report, read the probable cause statement, and talked with his client was reasonable
and thus within the wide range of permissible discretion and trial strategy.
       Bias argues the district court applied the correct legal standard by conducting both steps
of the two-step analysis. According to Bias, he overcame the presumption that trial counsel’s
representation was within the range of permissible discretion and trial strategy. We agree.
       The district court applied the correct legal standard when it determined Bias’s trial
counsel’s performance was deficient. With respect to the first step of the Wurdemann analysis,
the district court found that the video provided an even less convincing basis than the probable
cause statement for finding reasonable suspicion. The court found that the video showed Bias
was driving at the same approximate speed as the vehicle in front of him; lightly tapped his

                                                 6
brakes; briefly touched but did not cross the white fog line; and did not significantly weave, drift,
or change speeds. The court concluded none of the factors taken individually or together would
constitute a violation of Idaho law or give rise to reasonable suspicion of DUI, and thus a motion
to suppress challenging the reasonable suspicion for the stop would have been granted. 2
       Furthermore, with respect to the second step of the analysis, after considering the totality
of defense counsel’s actions, the court addressed whether Bias had overcome the presumption
that the decision not to file the motion was within the wide range of permissible discretion at the
third evidentiary hearing and in its findings of fact and conclusions of law.          At the third
evidentiary hearing, Bias’s trial counsel testified that the defense strategy was to focus on Bias’s
sentencing. Specifically, the goal of the defense was for Bias to be sentenced to felony probation
and drug court in lieu of a term of imprisonment. Trial counsel testified that in order to
accomplish this, he planned to put as much time between Bias’s arrest and sentencing as possible
and to enroll Bias in whatever programs his misdemeanor probation officer required to show the
sentencing court a period of sobriety and treatment before sentencing. Additionally, trial counsel
testified that he did not know the dashcam video existed until Bias initiated post-conviction
proceedings and thus based his advice to Bias as to whether a suppression motion would have
been successful upon his review of the police report. Post-conviction counsel asked trial counsel
whether reviewing the dashcam video of the stop could have helped weaken the State’s case and
achieve Bias’s sentencing strategy. Trial counsel agreed that it would have. Similarly, the
district court asked trial counsel if it would have behooved him to review a video of the traffic
stop before allowing his client to plead guilty because potential constitutional deficiencies with
the stop could have been used to leverage “a lower charge [] or considerations in a sentencing
recommendation.” Again, trial counsel agreed. The court wrote that it was not second-guessing
Bias’s experienced defense attorney’s strategic decisions, and also noted that it was mindful that
the defense had access to the police reports but not to the dashcam video prior to trial.
Nevertheless, the court concluded the police report raised the same concerns as the video to a


2
        The court concluded, “even after considering the officer’s training and knowledge of
normal driving behavior, the totality of the circumstances did not provide him sufficient
reasonable suspicion to stop Bias’s vehicle for . . . DUI.” In so concluding, “the Court does not
lightly disregard the fact that the arresting officer was ultimately correct in his suspicion that
Bias was driving under the influence. However, being right does not cure the constitutional
deficiencies in an otherwise improper stop.”
                                                 7
sufficient degree that defense counsel should have challenged the stop or investigated further.
Accordingly, the court addressed both steps of the Wurdemann analysis in concluding
Strickland’s first prong was satisfied.
       As noted, the State does not challenge the district court’s determination that the motion
would have been granted. The district court’s citation to State v. Porter, 130 Idaho 772, 793, 948
P.2d 127, 148 (1997), certainly takes in the first prong of Wurdemann. While the district court
may not have cited Wurdemann or State v. Mathews, 133 Idaho 300, 308, 986 P.2d 322, 331
(1999), the court expressed its familiarity with the notion of overcoming the presumption of a
reasonable trial strategy. The district court did not need to address at length what trial counsel
did and did not do to simply determine that the motion would have been granted. However, the
district court, after indicating that it did not want to second-guess trial counsel, went on to look at
whether counsel’s decisions were based on inadequate preparation, ignorance of relevant law, or
other shortcomings capable of objective evaluation.          The district court outlined counsel’s
inadequate preparation and objective shortcomings, including: (1) counsel’s failure to realize
that the police report and probable cause affidavit, even without the video, suggested the basis
for suppression; (2) that, while failing to request discovery was not a separate post-conviction
claim, because counsel did not identify the basis for suppression, the video was not obtained;
(3) that trial counsel, an attorney with a law degree, should not have relied upon Bias to identify
the best legal strategy, particularly without the benefit of basic discovery; and (4) a reasonable
strategy of focusing on sentencing, let alone the decision to plead guilty, would include available
avenues to weaken the State’s case and negotiate a lower charge or consideration in sentencing
recommendations. Thus, contrary to the State’s position, the district court did determine the
presumption of permissible discretion and trial strategy was overcome, under the circumstances,
by inadequate preparation or other objective shortcomings.
       The State does not challenge the district court’s conclusion that Bias satisfied the second
Strickland prong. The court concluded, “[B]ut for counsel’s failure to request discovery and
challenge the constitutionality of the stop, Bias would not have pled guilty and would have
insisted on going to trial.” Accordingly, the district court applied the correct legal standard to the
claim of ineffective assistance of counsel for not filing a motion to suppress that challenged the
reasonable suspicion of the stop.



                                                  8
       Finally, we address the State’s argument that in applying the incorrect legal standard, the
district court erred by improperly relying on repeated viewings of the dashcam video and on the
Supreme Court’s decision in State v. Neal, 159 Idaho 439, 362 P.3d 514 (2015), a case decided
by the Idaho Supreme Court after the judgment of conviction became final in Bias’s underlying
criminal case. 3 Bias argues the district court’s opinion clearly shows that the court’s decision
was not wholly dependent on Neal. We agree.
       The district court did not improperly rely on repeated viewings of the dashcam video. In
granting Bias’s petition the court stated, “After all these viewings, and evaluating the evidence”
the court “is unable to conclude that Bias’s driving was sufficiently suspicious to justify a stop at
that point in time.” (Emphasis added.) In addition to the dashcam video, the evidence before the
court included Bias’s testimony, the testimony of trial counsel and the officer who stopped Bias,
police reports, a map depicting where the stop occurred, various jail activity logs, a call summary
for Madison County Jail, Rexburg police department arrest reports, and audio of the preliminary
hearing.
       Moreover, the court did not improperly rely on the Supreme Court’s Neal decision. The
court explicitly stated, “[trial counsel’s] performance cannot be found to have been deficient
based on a case that was not decided yet . . . . [T]he [c]ourt’s decision is not wholly dependent
on Neal; the [c]ourt based its decision on the totality of the circumstances of which the Neal
issue was just a part.” Ultimately, the court concluded none of the factors taken individually or
together would constitute a violation of Idaho law or give rise to reasonable suspicion of DUI.
Accordingly, the district court did not improperly rely on repeated viewings of the dashcam
video or on the Supreme Court’s decision in Neal.
                                                III.
                                         CONCLUSION
       The district court did not err by considering Bias’s claim that his trial counsel was
ineffective for failing to file a motion to suppress challenging the reasonable suspicion for the
stop. Likewise, the district court did not err by applying an incorrect legal standard to the
ineffective assistance of counsel claim before granting post-conviction relief. Therefore, we

3
       In State v. Neal, 159 Idaho 439, 362 P.3d 514 (2015), the Idaho Supreme Court held that
without more, the mere touching of lines on roadways is not sufficient to arouse reasonable
suspicion of DUI.


                                                 9
affirm the judgment of the district court granting, in part, Bias’s petition for post-conviction
relief.
          Judge GUTIERREZ and Judge HUSKEY CONCUR.




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