IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 47518
GREGORY PHILIP PARK, )
) Filed: November 19, 2020
Petitioner-Appellant, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
STATE OF IDAHO, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Respondent. )
)
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
Falls County. Hon. Benjamin J. Cluff, District Judge.
Judgment dismissing petition for post-conviction relief, affirmed.
Hilverda McRae, PLLC; Adam J. Ondo, Twin Falls, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Justin R. Porter, Deputy Attorney
General, Boise, for respondent.
________________________________________________
HUSKEY, Chief Judge
Gregory Philip Park appeals from the district court’s judgment dismissing his petition for
post-conviction relief. Park argues the court erred in finding his trial counsel’s performance was
not deficient because the court based its decision on two factual findings that Park asserts are
clearly erroneous. Because the district court’s findings are supported by substantial and
competent evidence, Park has not shown that the district court erred. Accordingly, the district
court’s judgment dismissing Park’s petition for post-conviction relief is affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Park pleaded guilty to driving under the influence of alcohol (DUI), a second felony DUI
within fifteen years. Park was represented by counsel in the underlying criminal case. With the
assistance of counsel, Park submitted a guilty plea advisory form in which he indicated that he
was not under the care of a mental health professional and had not been diagnosed with a mental
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health disorder. Park attested that the information in the guilty plea advisory form was true and
correct. Although Park did not inform his counsel of any prior mental health disorders, Park’s
trial counsel requested a psychological evaluation, which the district court ordered. The
psychological evaluation contained information describing Park’s prior substance abuse
treatment and previous brain injury he suffered, as well as his current mental health symptoms
and diagnosis. Prior to sentencing, Park’s trial counsel reviewed the results of the psychological
evaluation and the Presentence Investigation Report (PSI) with Park. The trial court reviewed
the psychological evaluation and PSI prior to sentencing Park.
At the sentencing hearing, the State recommended a unified sentence of ten years, with
five years determinate. Park’s counsel recommended a sentence of six months in county jail on
work release to be served concurrently with, or followed by, DUI court, as Park had applied for
and been accepted into DUI court. Next, the trial court offered Park the opportunity to address
the court, but Park declined to make a statement. The court imposed a unified sentence of nine
years, with four years determinate.
Park timely filed a petition for post-conviction relief. Park asserted two counts of
ineffective assistance of counsel. Count one alleged that trial counsel failed to file a motion to
suppress. Count two alleged that trial counsel was ineffective for failing to review the PSI and
psychological evaluation with Park prior to sentencing. Park claimed that because trial counsel
did not review the PSI and psychological evaluation, trial counsel failed to discover and present
two important facts to the district court at sentencing: (1) Park completed sixteen hours of
substance abuse treatment in 2014; and (2) due to a traumatic brain injury, Park suffers fatigue and
struggles to sleep. The claim further alleged that if trial counsel had reviewed the PSI and
psychological evaluation with Park, and/or independently investigated Park’s mental health, there
was a reasonable probability that Park would have received a more lenient sentence.
The State filed an answer, requesting the claims be dismissed and Park’s petition for
post-conviction relief be denied. The district court held an evidentiary hearing. The district
court took judicial notice of the guilty plea advisory form, the psychological evaluation
(submitted as a separate exhibit--Exhibit A), the PSI, and the minutes and transcript from the
sentencing hearing in Park’s underlying DUI case. Park also submitted an 82-page exhibit
consisting of additional medical records obtained by his post-conviction counsel (Exhibit B).
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During the post-conviction petition evidentiary hearing, Park was cross-examined by the
prosecutor who asked what information from Exhibit B should have been presented to the district
court at sentencing. Park was unable to identify anything specific in or identify anything from
Exhibit B that was not contained in the psychological evaluation submitted at sentencing. Park
conceded that he was incorrect in his assertion that the information about his prior alcohol
treatment and head injury was not presented at sentencing because the information was contained
in the psychological evaluation; Park agreed the psychological evaluation had been admitted as
part of the information for the district court to consider during sentencing. At the conclusion of
the hearing, the district court ordered the parties to submit post-hearing briefs.
The district court issued a memorandum decision and order dismissing Park’s petition for
post-conviction relief. The district court found that Park’s trial counsel was not ineffective for
failing to file a motion to suppress because Park failed to present evidence that there were any
meritorious suppression claims and the failure of his trial counsel to pursue a meritless motion
did not prejudice Park. 1
Similarly, the district court found that Park’s trial counsel was not ineffective for not
investigating and presenting additional mitigating mental health evidence at sentencing. The
district court found the psychological evaluation contained information related to Park’s
traumatic brain injury and his current mental health symptoms and that trial counsel had
reviewed the PSI and the psychological evaluation with Park and provided Park an adequate
opportunity to review the documents. Additionally, the district court found that Park was unable
to identify any specific facts from Exhibit B that the trial court did not have at the time of
sentencing that would have “potentially impacted the sentence the court imposed.”
The district court concluded that trial counsel’s investigation and presentation of Park’s
mental health evidence was well within the range of competence required of attorneys and that
Park failed to show how trial counsel’s conduct fell below an objective standard of
reasonableness. Accordingly, the district court dismissed his petition for post-conviction relief.
Park timely appeals.
1
On appeal, Park does not challenge the district court’s conclusion that he did not receive
ineffective assistance of counsel as alleged in count one.
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II.
STANDARD OF REVIEW
A petition for post-conviction relief initiates a proceeding that is civil in nature. I.C.
§ 19-4907; Rhoades v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009); State v.
Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Murray v. State, 121 Idaho 918, 921,
828 P.2d 1323, 1326 (Ct. App. 1992). Like a plaintiff in a civil action, the petitioner must prove
by a preponderance of evidence the allegations upon which the request for post-conviction relief
is based. Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002).
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). To establish prejudice, the petitioner must show a
reasonable probability that, but for the attorney’s deficient performance, the outcome of the
proceeding would have been different. Aragon, 114 Idaho at 761, 760 P.2d at 1177; Knutsen,
144 Idaho at 442, 163 P.3d at 231. 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).
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); Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004);
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. Dunlap, 141 Idaho at
56, 106 P.3d at 382; Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We
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exercise free review of the district court’s application of the relevant law to the facts. Baxter v.
State, 149 Idaho 859, 862, 243 P.3d 675, 678 (Ct. App. 2010).
III.
ANALYSIS
Park argues the district court erred in finding that his trial counsel’s investigation and
presentation of Park’s mental health evidence was reasonable. Park asserts the district court’s
decision relied on two erroneous factual findings that together demonstrate the district court’s
finding that trial counsel did not render deficient performance is clearly erroneous. First, Park
asserts the district court’s finding that trial counsel reviewed the PSI and psychological
evaluation with him before sentencing was undermined by trial counsel’s testimony at the
evidentiary hearing that he did not remember exactly where or for how long he reviewed the PSI
with Park. Second, Park asserts the district court’s finding that Park did not identify specific
records or entries within Exhibit B as potential mitigating information is irrelevant because the
district court could have reviewed the entire exhibit and found mitigating evidence. In response,
the State asserts that both of the district court’s findings are supported by substantial and
competent evidence in the record and, therefore, the district court correctly concluded that Park
did not receive ineffective assistance of counsel.
A. The District Court’s Factual Findings are Supported by Substantial and
Competent Evidence
Park argues the district court’s factual finding that trial counsel reviewed the PSI and the
psychological evaluation with him are not supported by substantial and competent evidence
because during the post-conviction evidentiary hearing, trial counsel “backtrack[ed]” on
whether he remembered reviewing the PSI with Park. First, Park misconstrues trial counsel’s
testimony. During the post-conviction hearing, trial counsel testified that he had a greater number
of meetings with Park than he usually has with his clients and reviewed both the PSI and the
psychological evaluation with Park for the length of time that Park desired. Although trial
counsel did not remember the details of the meeting in which the PSI and the psychological
evaluation were reviewed, counsel testified he was “sure” that he reviewed the documents with
Park. Park testified that he did not recall reviewing the PSI or the psychological evaluation with
his trial counsel. The district court recognized that the testimony was contradictory, but after
weighing the evidence, found trial counsel’s testimony to be more credible. Where there is
conflicting evidence, it is the trial court’s task to evaluate the credibility of the witnesses and
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to weigh the evidence presented. Desfosses v. Desfosses, 120 Idaho 354, 357, 815 P.2d 1094,
1097 (Ct. App. 1991). This determination is solely within the province of the district court.
Dunlap, 141 Idaho at 56, 106 P.3d at 382; Larkin, 115 Idaho at 73, 764 P.2d at 440.
Therefore, although conflicting evidence was presented, the district court’s finding that trial
counsel adequately reviewed the PSI and psychological evaluation with Park is supported by
substantial and competent evidence and thus, is affirmed on appeal.
The district court also found that Park did not provide any specific factual information to
support his claim that trial counsel failed to discover or present potential mitigating evidence at
sentencing. During the post-conviction evidentiary hearing, Park was questioned by the
prosecutor. The prosecutor asked Park to cite to any documents in Exhibit B that should have
been, but were not, presented at sentencing. Park could not point to any specific document in
the exhibit. It was Park’s burden to prove by a preponderance of the evidence that potential
mitigating evidence existed that was not presented to the trial court. Stuart v. State, 118 Idaho
865, 869, 801 P.2d 1216, 1220 (1990). By failing to identify any evidence in support of his
factual assertions or specifically identify other potential mitigating information that the trial
court did not have at sentencing, Park failed to meet his burden. 2
Moreover, the district court explicitly found that at least one fact Park claims should
have been presented at sentencing--his traumatic brain injury--was included in the
psychological evaluation submitted to the district court at sentencing. As established during
the cross-examination of Park during the post-conviction evidentiary hearing, Park
acknowledged that: (1) page six of the psychological evaluation contains information about
Park’s previous car accident, which resulted in a coma, excessive fatigue, and difficulty
sleeping; and (2) page seven contains additional information about Park’s fatigue and sleep
issues, and references Park’s head injury. Park further conceded that he was incorrect in his
assertion that information about his head injury was not presented at sentencing. Park’s
concession resolves any dispute about whether the district court had the information.
The prosecutor also elicited from Park that page six of the psychological evaluation
noted that Park attended weekly treatment at Proactive in 2015, but he had not found the
treatment to be relevant or beneficial. In his petition for post-conviction relief, Park does not
2
In fact, on appeal, Park cites to only one page of the 82-page attachment, page 37, and
claims that page 37 documents his “2005 head injury, coma, chronic fatigue, and difficulty
sleeping.”
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allege he had additional treatment in 2014, only that he received weekly treatment at Proactive.
Whether the treatment was in 2014 or 2015 is irrelevant because it was the fact that Park
participated in substance abuse treatment, not the date of the treatment, that Park argues was
not presented to the district court.
Thus, the information that Park argues was not presented at sentencing, his traumatic
brain injury and concomitant symptoms, as well as his prior substance abuse treatment, was
actually presented to and considered by the district court at sentencing. Consequently, the
district court’s factual finding that trial counsel did not fail to discover or present potential
mitigating evidence is supported by substantial and competent evidence and affirmed on
appeal.
B. The District Court Correctly Denied Park’s Claim of Ineffective Assistance of
Counsel
Because the district court’s factual findings are supported by substantial and competent
evidence, the district court correctly found Park failed to establish either that his counsel’s
performance was deficient or that Park was prejudiced by any alleged deficiency, as is required
under Strickland. As noted above, the district court’s finding that trial counsel did not perform
deficiently is supported by substantial and competent evidence. As to the prejudice prong, the
district court found Park was unable to identify any specific facts from Exhibit B that the trial
court did not have at the time of sentencing that would have “potentially impacted the sentence
the court imposed.” Although the prejudice prong standard can be more accurately articulated as
requiring the petitioner to provide evidence that demonstrates a reasonable probability that, but
for the attorney’s deficient performance, the outcome of the proceeding would have been
different, the district court’s analysis and conclusion in this case comport with that standard.
Park argues that if his trial counsel had reviewed his PSI more thoroughly or had
researched Park’s medical and mental health history himself, there is “a reasonable probability
that trial counsel would have realized that Petitioner had a traumatic brain injury that caused him
to be excessively fatigued”; however, this information was presented to the district court at
Park’s sentencing hearing. Park further argues that if his counsel had explained that placing Park
into a rehabilitative program would be more beneficial than sentencing him to prison, “there is a
reasonable probability that the trial court would not have sentenced Mr. Park so harshly.” The
district court was aware that Park’s trial counsel assisted Park in applying to DUI court and Park
had been accepted into DUI court prior to sentencing. Trial counsel argued at sentencing that
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local jail time, probation, and DUI court would be an appropriate sentence but straight
incarceration was unwarranted. The district court rejected this proposed disposition and found
that probation, even in conjunction with problem-solving court intervention, to not be the
appropriate sentence. Park points to no other evidence that, had it been presented, would have
reasonably resulted in a lesser sentence. Thus, Park has failed to establish there is a reasonable
probability his sentence would have been less harsh and, consequently, Park cannot establish the
prejudice prong of the Strickland analysis. Thus, the district court correctly dismissed Park’s
claims of ineffective assistance of counsel.
IV.
CONCLUSION
The district court’s factual findings are supported by substantial and competent evidence
in the record. Applying those findings to Park’s ineffective assistance of counsel claim, Park has
failed to show the district court erred when it concluded that Park did not receive ineffective
assistance of counsel. Therefore, the district court’s judgment dismissing Park’s petition for
post-conviction relief is affirmed.
Judge GRATTON and Judge BRAILSFORD CONCUR.
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