IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 39861
LIVINGSTON J. PAPSE, SR., ) 2013 Unpublished Opinion No. 755
)
Petitioner-Appellant, ) Filed: November 19, 2013
)
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STATE OF IDAHO, ) THIS IS AN UNPUBLISHED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 Sixth Judicial District, State of Idaho,
Bannock County. Hon. Stephen S. Dunn, District Judge.
Judgment denying petition for post-conviction relief, affirmed.
Livingston J. Papse, Sr., Boise, pro se appellant.
Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
Attorney General, Boise, for respondent.
________________________________________________
LANSING, Judge
Livingston J. Papse, Sr., appeals from the judgment denying his post-conviction claims.
He argues that the trial court erred by denying his claims that his attorney provided ineffective
assistance of counsel by improperly advising him regarding his guilty plea and by failing to
object to the prosecutor’s breach of the plea agreement. We affirm.
I.
BACKGROUND
This is Papse’s second appeal in this case. In our opinion on his first appeal, Papse v.
State, Docket No. 37446 (Ct. App. Feb. 2, 2011) (unpublished), we summarized the facts of the
underlying criminal proceedings:
In 2008, Papse was charged with felony driving under the influence of
alcohol. [Idaho Code] §§ 18-8004 and 18-8005(5). Papse was offered a plea
agreement under which the state agreed to request a sentence consisting of a
unified term of four years, with a minimum period of confinement of two years, in
exchange for Papse’s guilty plea. Papse accepted the plea agreement and pled
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guilty. The district court, however, declined to follow the state’s recommendation
and sentenced Papse to a unified term of eight years, with a minimum period of
confinement of four years. Papse filed a direct appeal asserting that his sentence
was excessive, which this Court affirmed in an unpublished opinion. State v.
Papse, Docket No. 35371 (Ct. App. Feb. 10, 2009).
Following his direct appeal, Papse filed a pro se petition for post-conviction relief
pursuant to Idaho Code § 19-4901, et seq. He alleged that his plea was not knowingly,
intelligently, and voluntarily given; that his plea agreement was violated by the prosecutor; that
his attorney was ineffective for improperly advising him regarding his guilty plea and failing to
object to the breach of the plea agreement; and that his attorney improperly induced him to plead
guilty. Along with his petition, Papse filed a motion requesting the appointment of counsel.
Before the State replied, the court denied the motion for the appointment of counsel and entered
its notice of intent to dismiss the post-conviction action pursuant to I.C. § 19-4906. Thereafter,
the district court dismissed the post-conviction action. Papse appealed, and we held that the
post-conviction court erred by not appointing counsel and remanded for further proceedings in
which Papse would have counsel. On remand, the post-conviction court appointed counsel for
Papse and held an evidentiary hearing before dismissing Papse’s case.
In rendering its decision on remand, the trial court reviewed the transcripts of the plea
colloquy and the sentencing hearing. At the plea hearing, Papse had indicated that counsel had
adequately assisted him and had helped him understand the plea colloquy questions. After the
court concluded the plea colloquy, it found that Papse knowingly, intelligently, and voluntarily
pleaded guilty.
At the sentencing hearing, Papse’s attorney requested that the court either impose the
prison sentence recommended by the State, consisting of a unified sentence of four years in
prison with two years determinate, or put Papse on probation with some form of intensive,
outpatient treatment. In response, the State recounted Papse’s long criminal record. This record
covered at least four decades, showed that Papse had committed serious crimes and demonstrated
that Papse’s behavior had not changed with age. Thereafter, the prosecutor stated:
So although Mr. Papse might be hoping for probation today, I think that prison is
the only alternative in this case. So it’s, I guess, with great enthusiasm today that
I come before the Court and recommend to the Court a four-year sentence with
those first two years fixed.
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Papse’s counsel did not object to the prosecutor’s argument. He did complain that the argument
was somewhat inconsistent with the agreed recommendation, but stated that he did not believe
that Papse would be entitled to any remedy for that inconsistency. Thereafter, the trial court
imposed a unified sentence of eight years in prison with four years determinate.
In addition to reviewing the transcripts from the criminal case, the post-conviction court
heard testimony at the evidentiary hearing. Papse testified in support of his claim that he did not
knowingly, intelligently, and voluntarily plead guilty. He claimed he did not understand the
questions on the guilty plea questionnaire or those asked by the judge during the plea colloquy.
Instead, he asserted, he parroted the answers his attorney gave him because he wanted to benefit
from the plea agreement. Papse also testified that his attorney improperly induced his guilty plea
by telling Papse that he would be given the sentence that the State had agreed to recommend.
Finally, Papse at one point testified that the prosecutor breached the plea agreement by
recommending a unified sentence of eight years in prison with four years determinate, but he
later acknowledged that the prosecutor did not ask for a longer sentence than the one he had
agreed to recommend.
Papse’s defense counsel testified at the evidentiary hearing and rebutted all of these
claims. He testified that he and Papse discussed the questions on the guilty plea advisory form
and some of the questions asked during the plea colloquy at length. He testified that it took
longer to work through these questions than it did with other clients because Papse had some
trouble hearing, reading, or understanding some questions. However, after these conversations,
the attorney was confident that Papse understood the questions, and he gave appropriate
responses of his own accord and without any compulsion from counsel. Likewise, Papse’s
attorney testified that he explained the recommendation process properly, making clear that the
judge was not bound by any sentencing recommendation. The attorney said that after this
explanation, and before Papse pleaded guilty, Papse adequately understood the process. Finally,
he testified that the State gave the sentencing recommendation it had agreed to give.
Although it was not procedurally required, following the evidentiary hearing the post-
conviction court issued a notice of its intent to summarily dismiss Papse’s claims pursuant to I.C.
§ 19-4906. It appears that the court did so in order to allow Papse one further opportunity to
submit any additional evidence. Papse filed a response to the notice of intent, but the court
ultimately denied all of Papse’s claims.
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II.
ANALYSIS
Papse raises numerous issues and arguments on appeal, but they can be distilled down to
two claims: his attorney provided ineffective assistance of counsel by (1) improperly advising
him regarding his guilty plea, and (2) failing to object to the prosecutor’s breach of the plea
agreement. 1
A claim of ineffective assistance of counsel may properly be brought under the Uniform
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). Where, as
here, the petitioner 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).
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). 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). Findings will not be deemed clearly erroneous if they are supported
by substantial and competent evidence in the record. Whiteley v. State, 131 Idaho 323, 326, 955
P.2d 1102, 1105 (1998); Stuart v. State, 127 Idaho 806, 813, 907 P.2d 783, 790 (1995). The
credibility of the witnesses, the weight to be given to their testimony, and the inferences to be
1
Papse also raises the issue of ineffectiveness of counsel in a prior appeal. We do not
consider this claim because it was not pled in his petition and is raised for the first time on
appeal. See Dunlap v. State, 146 Idaho 197, 199, 192 P.3d 1021, 1023 (2008). Likewise, we do
not consider the issues Papse raised for the first time in his reply brief. Row v. State, 135 Idaho
573, 580, 21 P.3d 895, 902 (2001).
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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).
The post-conviction court dismissed Papse’s claims after an evidentiary hearing, but cited
and apparently applied legal standards governing summary dismissal. This was incorrect. Idaho
Code § 19-4906 permits summary dismissal when the applicant is not entitled to post-conviction
relief “on the basis of the application, the answer or motion, and the record,” and “no purpose
would be served by any further proceedings.” Summary dismissal is permissible only when the
applicant’s evidence has raised no genuine issue of material fact that, if resolved in the
applicant’s favor, would entitle the applicant to the requested relief. Idaho Rule of Civil
Procedure 56; Franck-Teel v. State, 143 Idaho 664, 667-68, 152 P.3d 25, 28-29 (Ct. App. 2006).
Summary dismissal is impermissible when there is a conflict in the evidence respecting material
issues of fact or when the evidence raises the question of the credibility of witnesses. Land
o’Lakes, Inc. v. Bray, 138 Idaho 817, 818-19, 69 P.3d 1078, 1079-80 (Ct. App. 2003). After the
court holds an evidentiary hearing, however, the trial court may weigh the evidence, make
credibility determinations, and resolve factual issues just as it may in any other civil court trial.
See, e.g., Richman v. State, 138 Idaho 190, 192, 59 P.3d 995, 997 (Ct. App. 2002); Larkin, 115
Idaho at 73, 764 P.2d at 440. In this case, the court nominally applied the summary dismissal
standard, but also considered the credibility of witnesses.
Papse does not challenge this procedural irregularity nor could he logically do so since
the standard applied by the court is more favorable to Papse than the correct standard that applies
following an evidentiary hearing. On appellate review, we will apply the standard that is
applicable to review of a trial court’s findings after an evidentiary hearing.
As to the claim that Papse’s attorney was ineffective because he improperly advised
Papse regarding the plea, we conclude that the denial of the claim is supported by substantial
evidence. Papse and his attorney offered diametrically opposing testimony. The district court
found Papse’s attorney credible and did not find Papse credible. The testimony that was credited
by the district court shows that Papse was given the proper advice and his attorney’s
performance was not deficient.
5
Turning to the second issue on appeal, the breach of the plea agreement, the record is
scant. Our prior decision stated, “We remand so that Papse may present [his ineffective
assistance of counsel regarding entry of his plea claim] and the remainder of his post-conviction
claims with the assistance of appointed counsel.” Papse, Docket No. 37446 (emphasis added).
However, at the beginning of the evidentiary hearing, the parties and the court agreed the focus
of the hearing was the guilty plea issue and not the breach of a plea agreement issue. The district
court’s comments at the outset of the evidentiary hearing and in its post-hearing notice of intent
to dismiss indicate that Papse’s counsel requested a hearing solely on the first issue, but that
motion itself is not in the record. It may be that the claim of breach of the plea agreement was
abandoned below, but that is not clear. Therefore, we will address it based on the evidence that
was presented to the trial court, including the transcript of Papse’s sentencing hearing. 2
Papse argues that his counsel failed to object to the prosecutor’s breach of the plea
agreement. First, he claims that the prosecutor was bound to make the recommendation he
agreed to make and that making any statement outside the express content of the plea agreement
violates his rights. Second, he claims that the prosecutor’s comments essentially disavowed the
recommendation. 3
It is well established that when a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part of the inducement or consideration,
such promise must be fulfilled. If the prosecution has breached its promise given in a plea
agreement, the defendant will be entitled to relief. State v. Fuhriman, 137 Idaho 741, 744, 52
P.3d 886, 889 (Ct. App. 2002). As a remedy, the court may order specific performance of the
2
The district court’s post-hearing notice of intent to dismiss does not analyze the breach of
plea claim, and the memorandum decision dismissing the case addresses it only briefly:
Finally, Papse alleges that the prosecutor committed prosecutorial misconduct
when he brought up Papse’s troubled past. These claims are similar to the claims
already raised in Papse’s Petition and constitute argument rather than the
submission of additional facts that have not been previously considered.
The Court has carefully analyzed all of these claims and concludes that
Papse fails to show any new or additional information that would justify
reconsideration of this Court’s Intent to Dismiss the Petition.
3
To the extent Papse also argues that the prosecutor expressly recommended some
sentence other than a unified sentence of four years in prison with two years determine, his claim
is contradicted by the record.
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agreement or may permit the defendant to withdraw the guilty plea. Santobello v. New York, 404
U.S. 257, 263 (1971); State v. Jones, 139 Idaho 299, 302, 77 P.3d 988, 991 (Ct. App. 2003).
The prosecution’s obligation to recommend a sentence promised in a plea agreement does
not carry with it the obligation to make the recommendation enthusiastically. United States v.
Benchimol, 471 U.S. 453, 455 (1985); Jones, 139 Idaho at 302, 77 P.3d at 991. A prosecutor
may not circumvent a plea agreement, however, through words or actions that convey a
reservation about a promised recommendation, nor may a prosecutor impliedly disavow the
recommendation as something that the prosecutor no longer supports. Jones, 139 Idaho at 302,
77 P.3d at 991. Although prosecutors need not use any particular form of expression in
recommending an agreed sentence, their overall conduct must be reasonably consistent with
making such a recommendation, rather than the reverse. Id.
A plea bargain that requires the State to recommend a specific sentence does not require
the State to offer its recommended sentence and then stand silently. State v. Halbesleben, 147
Idaho 161, 168, 206 P.3d 867, 874 (Ct. App. 2009). In Halbesleben, defense counsel had
indicated an intention to seek lesser sentences. In response, the prosecutor presented vigorous
arguments “to dissuade the district court from any downward deviation from the recommended
sentences.” Id. Then the prosecutor firmly recommended the bargained sentence and linked that
sentence to the relevant sentencing considerations, including protection of the public safety.
This Court held that the prosecutor had not breached the agreement. Id.
Conversely, we have recognized occasions where a prosecutor’s argument amounts to a
breach of a plea agreement, as where the prosecutor expressly indicates unease with the
recommendation. See State v. Wills, 140 Idaho 773, 774, 102 P.3d 380, 381 (Ct. App. 2004)
(The prosecutor said, “I think the state is showing great restraint by only recommending that
sentence.”); Jones, 139 Idaho at 302, 77 P.3d at 991 (The prosecutor said, “I originally, when we
had the preliminary hearing, had offered that I would recommend retained jurisdiction. I’m
bound by that. Certainly the court will do what Your Honor feels is appropriate.”) (internal
editing marks omitted). In other circumstances, we have held that “highlight[ing] the contrary
recommendation of the PSI investigator as well as the basis for that recommendation” may cross
the line from zealous advocacy to a breach of a plea agreement. State v. Daubs, 140 Idaho 299,
301, 92 P.3d 549, 551 (Ct. App. 2004).
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The record before us shows that the prosecutor did not breach the plea agreement with
Papse. The prosecutor recommended the sentence he had agreed to recommend, offered relevant
facts to support that recommendation, and buttressed the recommendation against a downward
departure. These arguments are analogous to those permitted in Halbesleben. The prosecutor’s
expression of “great enthusiasm,” as shown in the transcript, does not show breach of the plea
agreement. It does not express unease with the recommendation or a repudiation of it. While
that comment may have been made in a tone that conveyed irony or sarcasm, the cold transcript
does not convey that, and defense counsel’s testimony at the evidentiary hearing did not express
any such concern about the prosecutor’s argument at sentencing.
Because Papse has not shown that the prosecutor breached the plea agreement, he also
has not shown that his attorney was ineffective for failing to seek a remedy. Therefore, the
district court did not err in denying this claim.
III.
CONCLUSION
Papse has shown no reversible error in the trial court’s denial of his post-conviction
claims. Therefore, the judgment denying relief on Papse’s post-conviction claims is affirmed.
Judge GRATTON and Judge MELANSON CONCUR.
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