Savage v. State

IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 48338

MELVIN JEREMY SAVAGE, )
)
Petitioner-Appellant, ) Boise, February 2022 Term
)
v. ) Opinion Filed: June 2, 2022
)
STATE OF IDAHO, ) Melanie Gagnepain, Clerk
)
Respondent. )
____________________________________)

Appeal from the District Court of the Seventh Judicial District of the State of
Idaho, Bonneville County. Joel E. Tingey, District Judge.

The decision of the district court is affirmed.

Eric D. Fredericksen, Idaho State Public Defender, Boise, attorney for Appellant.
Brian Dickson argued.

Lawrence G. Wasden, Idaho Attorney General, Boise, attorney for Respondent.
Ken Jorgensen argued.
_________________________
BEVAN, Chief Justice.
After he was convicted of first-degree arson, Melvin Savage filed a post-conviction petition
alleging his trial counsel was ineffective for failing to advise him of his right against self-
incrimination during a deposition that took place in a civil lawsuit involving the arson allegation.
Following an evidentiary hearing, the district court found that counsel’s failure to advise Savage
of his right to remain silent constituted deficient performance; however, Savage failed to prove he
was prejudiced by that deficient performance because he was already intent on resolving his
criminal case by entering a guilty plea at the time of the civil deposition. Savage filed a motion to
reconsider, which was denied. Savage now appeals to this Court, arguing that the district court
erred by limiting its prejudice analysis to an evaluation of whether Savage would have gone to
trial instead of considering whether Savage demonstrated that the outcome of the plea process
would have been different with competent advice. For the reasons set out, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
1
 The facts relevant to the issues on appeal are not in dispute. Savage was accused of setting
a fire at the home of his ex-wife’s divorce attorney, who was coincidentally married to a police
officer. While Savage was being detained out of state, he made multiple recorded phone calls to
his mother in which he indicated, several times, that his plan was to accept a plea and work to get
the case resolved as quickly as possible. Savage was appointed public defender Trent Grant to
represent him in the criminal case.
While Grant was representing Savage, the victims of the fire filed a civil lawsuit against
Savage. Savage received a subpoena to have his deposition taken in the civil case while his
criminal proceedings were ongoing. Savage asked Grant whether he should participate in the
deposition or if he could decline to answer questions, to which Grant advised Savage that he could
not represent him in the civil matter. It was undisputed that Grant never advised Savage that he (1)
had a right to plead the Fifth Amendment in the civil deposition and (2) could refuse to answer
incriminating questions. Ultimately, Savage attended the deposition and made several
incriminating statements regarding the arson charges that were pending against him. The State
received a copy of Savage’s civil deposition transcript; however, the prosecutor purportedly did
not read it and merely sent it along to Grant.
Some weeks after the deposition, Savage entered a guilty plea in the criminal case in which
he agreed to plead guilty to first degree arson and two other misdemeanor charges, and agreed to
pay reasonable restitution on all charged and uncharged conduct. In exchange, the State agreed to
dismiss the remaining pending misdemeanors and not file additional charges. The plea agreement
further provided that the sentencing recommendations were open to both sides, except the State
was obliged to recommend concurrent sentences. The district court imposed a unified sentence of
nineteen years for arson, with four years fixed, and sentences of one year fixed for each of the
misdemeanor offenses to run concurrently with the sentence for arson. Savage filed an Idaho
Criminal Rule 35 motion seeking a reduction of his sentence, which the district court granted in
part, reducing the indeterminate portion of his sentence by one year.
Savage filed a petition for post-conviction relief asserting a claim of ineffective assistance
of counsel due to Grant’s failure to adequately advise him of his rights under the Fifth Amendment
of the U.S. Constitution and Article I section 13 of the Idaho Constitution. The State filed a motion
for summary dismissal, which was granted. Savage appealed to the Idaho Supreme Court, which
reversed the order summarily dismissing Savage’s petition because, as conceded by the State on
2
appeal, Savage had articulated a genuine issue of fact with respect to deficient performance, and
the district court had not considered the prejudice prong of the analysis as required by Strickland
v. Washington, 466 U.S. 668, 687 (1984). Savage v. State, 166 Idaho 169, 173, 457 P.3d 150, 154
(2020).
On remand, the district court set the matter for an evidentiary hearing. During the hearing,
Savage testified that after his deposition, he sat down with Grant and the prosecutor for a meeting,
in which the prosecutor essentially said “[t]he deposition transcript is all I need.” Grant explained
that during that meeting Savage was interested in trying to work out a deal that would look at either
probation or a period of retained jurisdiction as a potential resolution, but the prosecutor was not
open to those suggestions. Grant testified that the prosecutor’s approach was “I’ve got enough to
convict you and lock you up for a long time and so I’m not in any frame of mind to look at
community supervision.” Grant recalled that the prosecutor brought up photographs of burns on
Savage, phone calls between Savage and his mother in which he basically admitted to committing
the arson, and asserted the deposition transcript would be admitted no matter what. Later, the
prosecutor testified that he spoke to the alleged victim about some admissions made during the
deposition, but that he did not review it prior to the meeting and only brought it up during
negotiations to try and to make Savage stop “fixating on it.” The prosecutor explained Savage was
irritated by the deposition and he wanted Savage to stop worrying about it given all the other
evidence that would prove Savage’s guilt.
The parties continued to try to reach a plea deal after the meeting. Grant explained that he
and Savage discussed options of pleading to something other than first-degree arson, but the
prosecutor was not amenable to such offers. Grant also noted he and Savage continued to explore
the possibility of a deal involving a non-prison sentence, but the prosecutor was not willing to
consider supervision in the community or a rider before supervision. Grant also testified that he
thought it would have been worthwhile to consult experts to examine some of the State’s other
evidence, but Savage rejected that advice because he wanted to resolve the case via guilty plea.
Following the evidentiary hearing, the district court concluded Grant had provided
deficient performance by not affirmatively advising Savage that he could have invoked his Fifth
Amendment rights at his civil deposition. However, the court determined that Savage had not
shown prejudice because he had not shown that, but for counsel’s deficient performance, he would
have rejected the plea offer and insisted on going to trial. Specifically, the district court held that
3
counsel’s deficient performance did not prejudice Savage because of the following findings: (1)
Savage had decided to plead guilty before the deposition was taken; (2) Savage’s refusal to answer
some questions in the deposition demonstrated Savage understood he had the right against self-
incrimination in the deposition; and (3) because the State’s overwhelming evidence of guilt, even
disregarding the deposition testimony, showed rejecting the plea agreement would not have been
a rational decision. The district court entered a judgment dismissing Savage’s petition.
Savage filed a motion for reconsideration. Among other things, Savage argued the district
court should have analyzed the prejudice prong under the framework adopted by the U.S. Supreme
Court in Lee v. United States, 137 S. Ct. 1958 (2017), which held deficient advice that led a
petitioner to accept a particular guilty plea was prejudicial even though there was overwhelming
evidence against the defendant. Savage alleged “absent the issues with the civil deposition, (or
with proper and correct advice regarding this matter) his statement that he would not have plead
guilty stand[s].” Savage built on this argument at a subsequent hearing on his motion for
reconsideration, presenting additional case law from federal circuits that specifically held, pursuant
to Lee, prejudice existed if the petitioner showed that, “but for counsel’s erroneous advice, he
could have negotiated a different plea agreement.”
The district court denied Savage’s motion to reconsider. The district court disagreed with
Savage’s claim that Lee was the more relevant authority, but stated even if it had relied on Lee, the
court would have come to the same conclusion. The district court ultimately applied the standard
stated in Hill v. Lockhart, 474 U.S. 52, 59 (1985), which provides that after a defendant has shown
ineffective assistance of counsel caused him to accept a guilty plea, that defendant can then show
prejudice by “demonstrating a reasonable probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.” The district court held that Savage
had not met that standard at his evidentiary hearing.
Savage filed a timely notice of appeal.
II. STANDARD OF REVIEW
When reviewing a decision denying a petition for post-conviction relief after an evidentiary
hearing, an appellate court will not disturb the lower court’s factual findings unless they are clearly
erroneous. Cosio-Nava v. State, 161 Idaho 44, 48, 383 P.3d 1214, 1218 (2016) (quoting Mitchell
v. State, 132 Idaho 274, 277, 971 P.2d 727, 730 (1998)). The standard at an evidentiary hearing
with respect to a claim of ineffective assistance of counsel requires the petitioner to show two

4
things by a preponderance of the evidence: (1) that counsel’s performance was objectively
deficient; and (2) that the deficient performance prejudiced the petitioner. Strickland, 466 U.S. at
687. “A claim of ineffective assistance of counsel presents a mixed question of law and fact.”
Booth v. State, 151 Idaho 612, 617, 262 P.3d 255, 260 (2011) (citing Murray v. State, 121 Idaho
918, 921, 828 P.2d 1323, 1326 (Ct. App. 1992)). “When faced with a mixed question of fact and
law, the Court will defer to the district court’s factual findings if supported by substantial evidence,
but will exercise free review over the application of the relevant law to those facts.” Id. (citing
Murray, 121 Idaho at 921–22, 828 P.2d at 1326–27).
“When deciding the motion for reconsideration, the district court must apply the same
standard of review that the court applied when deciding the original order that is being
reconsidered.” Fisk v. McDonald, 167 Idaho 870, 892, 477 P.3d 924, 946 (2020). “Likewise, when
reviewing a trial court’s decision to grant or deny a motion for reconsideration, this Court utilizes
the same standard of review used by the lower court in deciding the motion for reconsideration.”
Id.
III. ANALYSIS
The State does not contest the district court’s holding that Grant’s performance was
deficient. Thus, the only issue on appeal is whether Savage proved by a preponderance of the
evidence that Grant’s deficient performance was prejudicial. See Strickland, 466 U.S. at 687. A
defendant is entitled to “the effective assistance of competent counsel” in considering a plea deal.
Icanovic v. State, 159 Idaho 524, 529, 363 P.3d 365, 370 (2015) (quoting Padilla v. Kentucky, 559
U.S. 356, 364 (2010)). To prove that counsel’s deficient performance prejudiced the defendant,
“[t]he defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Dunlap v. State,
159 Idaho 280, 297, 360 P.3d 289, 306 (2015) (quoting Strickland, 466 U.S. at 694). As we held
in Icanovic regarding the standard applicable here:
To establish prejudice resulting from his or her attorney’s performance, a defendant
must show “that as a result of counsel’s deficient performance ‘there is a reasonable
probability that, but for counsel’s errors, he would not have [pleaded] guilty and
would have insisted on going to trial.’ ” Ridgley v. State, 148 Idaho 671, 676, 227
P.3d 925, 930 (2010) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366,
370, 88 L. Ed.2d 203, 210 (1985)). Such a defendant must “convince the court that
a decision to reject the plea bargain would have been rational under the
circumstances.” Padilla, 559 U.S. at 372, 130 S. Ct. at 1485, 176 L. Ed.2d at 297–
98.
5
Id. at 529–30, 363 P.3d at 370–71.
Relying on Icanovic, the district court held that Savage failed to prove, by a preponderance
of the evidence, that he would have insisted on going to trial rather than take a plea deal, and, that
rejecting the plea bargain would not have been a rational decision under the circumstances. The
district court made three key findings.
First, the court found that Savage made it quite clear, very early on in his case, that his
intent was to plead guilty as soon as he could, so that he could put the case behind him and begin
to move on with his life. The district court considered the phone calls between Savage and his
mother to be compelling evidence of his intent to accept responsibility and plead guilty.
Second, the court recognized it was clear that Savage did not want to participate in the civil
deposition, and that his attorney failed to effectively advise him of his rights; however, the court
concluded that failure did not necessarily mislead Savage into believing that he had to answer
questions in the deposition. For example, although Savage did answer some incriminating
questions, he refused to answer others. Thus, notwithstanding his attorney’s lack of counsel,
Savage knew he could, and did, refuse to answer some questions.
Last, the district court determined that Savage failed to prove that it would have been
rational for him to reject the plea agreement and move forward with trial. The court found the State
had put forth substantial evidence of guilt that would have been presented if Savage’s case had
gone to trial:
The circumstances of the arson charge were that gasoline was poured into a window
well then lit on fire. Evidence tying Savage to the crime included, but was not
limited to, the police investigation identifying Savage as the suspect, the jail phone
conversations between Savage and his mother containing incriminating admissions,
video evidence of Savage filling up a gas can at a Maverick gas station shortly
before [the victim’s] home was lit on fire, photographs of the crime scene
incriminating Savage, photos of burns on Savage’s body acquired
contemporaneously with the arson, Savage’s clothing with gasoline residue, tire
and shoe treads matching Savage’s vehicle and shoes, respectively, and the contents
of his car at the time in question.
The district court additionally noted that Savage did not put forth any rebuttal evidence that would
exonerate him, or that would contradict the State’s evidence. The court concluded if Savage’s case
had gone to trial, a reasonable jury would have found Savage guilty, thus, it would not have been
a rational decision to refuse a plea agreement and go to trial.

6
 In his motion to reconsider, Savage argued the case should be analyzed pursuant to the
standard articulated in Lee v. United States, 137 S. Ct. 1958 (2017), rather than Icanovic, 159 Idaho
at 529, 363 P.3d at 370, (quoted above) as the district court had originally done. Specifically,
Savage relied on the Supreme Court’s conclusion that counsel’s deficient advice which led the
petitioner to accept a particular guilty plea was still prejudicial despite overwhelming evidence of
the petitioner’s guilt. Savage argued Grant’s deficient performance was still prejudicial because it
affected his decision-making in the plea process despite the other evidence the State had against
him. Savage also disputed the court’s reliance on the conversations with his mother because those
took place before he had been appointed counsel, thus, they occurred before any discussion of his
legal options. Savage claimed that although he considered his desire to protect family and friends
in accepting the plea deal in the criminal case, it was ultimately the deposition testimony (and the
weight it was given by Grant and the State) that convinced him that he must plead guilty to avoid
trial.
The district court denied Savage’s motion to reconsider. First, the district court disagreed
with Savage’s claim that it had placed undue weight on the jail phone calls Savage had with his
mother, finding that “[w]hile it is true that those phone calls were made by Savage before he had
been assigned counsel or consulted with counsel on this case, the [c]ourt still believes that the
phone calls are particularly probative and persuasive as to his intentions and his state of mind
immediately following his arrest.” Savage has not challenged this aspect of the district court’s
denial of his motion to reconsider on appeal. Instead, Savage focuses on the district court’s alleged
disregard of the standards articulated in Lee. The district court disagreed with Savage’s claim that
Lee was the more relevant authority, but stated that even if it had relied on Lee, the court would
have come to the same conclusion. The district court ultimately applied the standard stated in Hill
v. Lockhart, reiterated in both Icanovic, 159 Idaho at 529, 363 P.3d at 370, and Lee, 137 S. Ct. at
1965, that, after a defendant has shown ineffective assistance of counsel caused him to accept a
guilty plea, that defendant must then show prejudice by “demonstrating a reasonable probability
that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going
to trial.” Hill, 474 U.S. at 59. The district court held that Savage did not meet that standard at his
evidentiary hearing.
On appeal, Savage argues that in denying his motion to reconsider, the district court did
not evaluate the prejudice prong with respect to the standard articulated by the United States
7
Supreme Court in Lee, i.e., the impact of counsel’s deficient performance on his decision to accept
the plea deal, particularly as it related to Savage’s ability to try and negotiate a different plea.
Savage maintains there was sufficient evidence to prove prejudice given his fixation on the
deposition during plea negotiations. Savage’s view of Lee is misplaced because the facts are
distinguishable from those of Savage’s case. Lee does not supplant the requirement that “[t]o
establish prejudice resulting from his or her attorney’s performance, a defendant must show that
as a result of counsel’s deficient performance there is a reasonable probability that, but for
counsel’s errors, he would not have [pleaded] guilty and would have insisted on going to trial.”
Icanovic, 159 Idaho at 529, 363 P.3d at 370.
In Lee, the defendant pleaded guilty to a felony without knowing that it would lead to
mandatory deportation. 137 S. Ct. at 1962. Lee filed a motion for post-conviction relief, asserting
that even though he had no real defense if the case proceeded to trial, he never would have accepted
a plea if he knew it would result in deportation. Id. It was undisputed that Lee’s counsel provided
inadequate representation by assuring Lee he would not be deported if he pleaded guilty; thus, the
only consideration was whether Lee could show he was prejudiced by the erroneous advice. Id. at
1965.
The Supreme Court recognized that “[w]hen a defendant alleges his counsel’s deficient
performance led him to accept a guilty plea rather than go to trial, we do not ask whether, had he
gone to trial, the result of that trial ‘would have been different’ than the result of the plea bargain.
That is because, while we ordinarily ‘apply a strong presumption of reliability to judicial
proceedings,’ ‘we cannot accord’ any such presumption ‘to judicial proceedings that never took
place.’ ” Id. at 1965 (quoting Roe v. Flores-Ortega, 528 U.S. 470, 482–483 (2000)). Instead, the
Court considers whether the defendant was prejudiced by the “denial of the entire judicial
proceeding . . . to which he had a right.” Id. (quoting Flores-Ortega, 528 U.S. at 483). Even so,
while reviewing an alleged denial of the entire judicial proceeding, the Hill v. Lockhart standard
as reiterated in Icanovic remains the focus: “To establish prejudice resulting from his or her
attorney’s performance, a defendant must show “that as a result of counsel’s deficient performance
‘there is a reasonable probability that, but for counsel’s errors, he would not have [pleaded] guilty
and would have insisted on going to trial.’ ” Lee, 137 S. Ct. at 1965 (quoting Hill, 474 U.S. at 59).
Thus, while the Supreme Court in Lee reiterated that the focus of the inquiry centers on the
defendant’s perspective during the plea negotiations, not the likelihood of success at trial, 137 S.
8
Ct. at 1966, that perspective must still lead the reviewing court to conclude that the prejudice
standard has been met. This is evidenced by reviewing the facts of Lee.
Lee alleged that avoiding deportation was the determinative factor for him, stating he
would have rejected any plea leading to deportation—even if it shaved off prison time—in favor
of throwing a “Hail Mary” at trial. Id. at 1967. The Supreme Court rejected the Government’s
claim that it would have been irrational for a defendant in Lee’s position to reject the plea offer in
favor of trial, explaining: “But for his attorney’s incompetence, Lee would have known that
accepting the plea agreement would certainly lead to deportation. Going to trial? Almost certainly.”
Id. at 1968 (emphasis in original). Thus, “[i]f deportation were the determinative factor for an
individual in plea discussions, as it was for Lee; if that individual had strong connections to this
country and no other, as did Lee; and if the consequences of taking a chance at trial were not
markedly harsher than pleading, as in this case, that ‘almost’ could make all the difference.” Id. at
1968–69. The Supreme Court concluded that Lee had shown prejudice from his counsel’s deficient
performance. Id. at 1969.
Savage cites several federal court decisions that have interpreted Lee to mean that a
petitioner can show prejudice under Strickland by showing that, but for counsel’s deficient
performance, he would have tried to negotiate a better or different plea deal. For example, the
Sixth Circuit has explained that there are two ways in which the outcome of the plea process could
be different in that context: (1) the petitioner could reject that plea deal and decide to stand on his
right to a trial; or (2) the petitioner could reject that plea deal and seek to negotiate a more favorable
plea deal. Rodriguez-Penton v. United States, 905 F.3d 481, 488–89 (6th Cir. 2018) (emphasis
added by Savage). Similarly, the Fourth Circuit noted that a petitioner’s “single-minded focus” on
one issue—removing adverse immigration consequences—during the plea negotiations
demonstrated counsel’s failure to inform him that the negotiated plea still carried immigration
consequences was prejudicial because “but for his counsel’s erroneous advice, he could have
negotiated a different plea agreement.” United States v. Swaby, 855 F.3d 233, 242–43 (4th Cir.
2017); see also United States v. Rodriguez-Vega, 797 F.3d 781, 788 (9th Cir. 2015) (citation
omitted) (“Where ineffective assistance leads a petitioner to accept a plea bargain, a different result
means that “but for counsel’s errors, [the petitioner] would either have gone to trial or received a
better plea bargain.”).

9
 Thus, Savage argues that the prejudice inquiry is not constrained to whether the defendant
would have insisted on going to trial but for counsel’s errors, but, it can also consider whether the
defendant would have tried to negotiate a better plea deal. (Citing Rodriguez-Penton, 905 F.3d at
488 (a petitioner can show prejudice under Lee by showing that “if properly advised, he would
have gone to trial or his decisionmaking [sic] process would have been different” with respect to
the plea) (emphasis added by Savage). Idaho courts have previously recognized as much,
explaining that to establish prejudice “the petitioner must show that counsel’s deficient
performance ‘affected the outcome of the plea process.’ ” Cosio-Nava v. State, 161 Idaho 44, 48,
383 P.3d 1214, 1218 (2016) (quoting Hill, 474 U.S. at 59); see also Fortin v. State, 160 Idaho 437,
446, 374 P.3d 600, 609 (Ct. App. 2016) (citing Lafler v. Cooper, 566 U.S. 156 (2012) (“to establish
prejudice, the petitioner must show a reasonable probability that, but for the attorney’s deficient
performance, the outcome of the plea process would have been different with competent advice.”).
In Booth v. State, the Court concluded Booth’s counsel was ineffective for advising Booth
that if he went to trial he would face a mandatory life sentence based on counsel’s erroneous
reading of the sentencing statutes. 151 Idaho 612, 620, 262 P.3d 255, 263 (2011). The State argued
that the deficient performance was not prejudicial because even if Booth had insisted on going to
trial, he would have been subjected to the same penalty as when he pleaded guilty. Id. This Court
determined the State’s arguments erroneously focused on the outcome of the case, specifically
whether Booth’s sentence would have been any different if he had been convicted following a trial;
when the relevant inquiry was whether, but for the attorney’s errors, Booth would not have pleaded
guilty and would have insisted on going to trial. Id. at 622, 262 P.3d at 265 (citing Ridgley v. State,
148 Idaho 671, 676, 227 P.3d 925, 930 (2010)). The Court held our focus must remain on “the
defendant’s state of mind when choosing to plead guilty.” Id. (quoting McKeeth v. State, 140 Idaho
847, 103 P.3d 460 (2004)).
In McKeeth, the defendant entered a conditional plea, and after a successful appeal, three
of six charges were dismissed. 140 Idaho at 849, 103 P.3d at 462. However, due to counsel’s error
in crafting the plea agreement, he could not withdraw his guilty pleas to the remaining charges on
remand. Id. The State argued that the deficient performance was not prejudicial because there had
been no showing that McKeeth had a reasonable probability of prevailing at trial on the remaining
charges if he had been allowed to withdraw those pleas. Id. at 852, 103 P.3d at 465. This Court
rejected that argument, holding that “the likelihood that without counsel’s errors a defendant may
10
or may not have been able to prevail at trial is relevant only to the extent it sheds light on the
defendant’s state of mind when he pleaded guilty.” Id. The Court explained that the proper analysis
under Hill “does not concern itself with the State’s intent or understanding, focusing instead on
the defendant’s state of mind when choosing to plead guilty.” Id. at 853, 103 P.3d at 466.
Savage cites this authority to claim there was substantial evidence indicating that Grant’s
deficient performance was prejudicial. It is undisputed that Savage did not want to participate in
the deposition, and that but for Grant’s deficient advice, Savage could have avoided participating
in that deposition altogether. Savage argues this is important because, as the prosecutor himself
admitted, Savage was focused, almost singularly so, on the deposition during their plea
negotiations. Savage contends this showing of prejudice is reinforced by an evaluation of the plea
deal itself, which called for Savage to plead guilty to first-degree arson without any restriction on
the length of sentence the prosecutor could ask for or the district court could impose. The only
benefit was that some of the misdemeanor charges against him were dismissed and the State
recommended the sentences on the remaining charges run concurrently. Savage contends that it
would have been reasonable to reject that minimally-beneficial plea deal and try and negotiate a
better deal if he did not have to contend with the additional admissible evidence against him, which
was only available because of counsel’s deficient performance. We reject Savage’s effort to view
his decision to plead guilty – and the outcome – through the lens of hindsight. See Lee, 137 S. Ct.
at 1967 (“Courts should not upset a plea solely because of post hoc assertions from a defendant
about how he would have pleaded but for his attorney’s deficiencies. Judges should instead look
to contemporaneous evidence to substantiate a defendant’s expressed preferences.”)
The State argues that there is simply no evidence in the record to support Savage’s claim
that, but for counsel’s deficient performance a different, more favorable plea agreement would
have been reached. In support, the State cites Cosio-Nava, 161 Idaho 44, 383 P.3d 1214. In Cosio-
Nava, the petitioner asserted his counsel was ineffective for failing to adequately advise him of the
immigration consequences that accompanied a guilty plea. However, this Court affirmed the
district court’s dismissal of Cosio-Nava’s petition for post-conviction relief because he failed to
cite to any evidence presented to the district court tending to show that an outcome not involving
his removal from the United States was likely or even possible. Id. at 49, 383 P.3d at 1219. This
statement in Cosio-Nava is inconsistent with Lee. A petitioner can establish prejudice by showing
that his decision to not negotiate for a different plea would have been altered even if his hope of
11
achieving a different outcome – in this limited context, a different plea agreement – was
implausible (i.e., not realistic). See Lee 137 S. Ct. at 1968–69. To the extent Cosio-Nava imposes
a higher standard, it is abrogated.
That said, Savage failed to meet his burden of proving that, but for counsel’s advice
regarding the deposition, the plea negotiations would have produced a different result – either at
trial or through a more favorable agreement. There is no evidence in the record that the plea
agreement changed based on the deposition. Evidence presented at the evidentiary hearing showed
that Grant approached the prosecution about a recommendation of probation or a rider, but the
prosecutor rejected those suggestions. There is no evidence that the deposition was the reason that
the prosecutor did not contemplate a more lenient plea deal. Rather, the prosecutor testified that
he only brought up the deposition during negotiations so Savage would stop “fixating on it” given
all the other evidence that could prove Savage’s guilt.
Ultimately, the crux of the issue is the effect of counsel’s deficient performance. In the
cases highlighted above, counsel’s deficient advice had a direct impact on a consequence
associated with the defendant’s decision to plead guilty. For example, in Lee, the defendant was
seeking to avoid deportation, “a particularly severe penalty,” see Padilla v. Kentucky, 559 U.S.
356, 365 (2010), and pleaded guilty based on his counsel’s assurance that he would not be deported
if he pleaded guilty. 137 S. Ct. at 1963. The Supreme Court held that despite the fact that Lee’s
prospects of an acquittal at trial were grim, his attorney’s error had nothing to do with trial; rather,
the error was one that affected Lee’s understanding of the consequences of pleading guilty. Id.
Similarly, in Booth and McKeeth, the attorneys’ deficient advice related directly to the defendants’
understanding of the actual sentencing. In those situations, the defendants testified they would
have rejected the plea agreements had they received accurate information concerning the
consequences of pleading guilty. Booth, 151 Idaho at 621, 262 P.3d at 264 (“but for [counsel’s]
erroneous advice regarding the possibility of a fixed life sentence, Booth would have elected to
proceed to trial.”); McKeeth, 140 Idaho at 853, 103 P.3d at 466 (“But for his counsel’s errors,
McKeeth would not have pleaded guilty and would have proceeded to trial.”).
Conversely here, while Grant’s deficient performance allowed the prosecutor access to
additional evidence that could be introduced at trial, it did not impact Savage’s understanding of
the plea agreement or give rise to an unknown consequence of the plea agreement. Still, Savage
contends that but for his counsel’s deficient performance, there would have been less admissible
12
evidence for Savage to evaluate with respect to the decision of whether to plead guilty or go to
trial, which would have affected his decision-making in how to negotiate the plea deal in this case.
However, showing that the State would have had less admissible evidence to admit at trial is,
standing alone, insufficient to meet the burden of proving a reasonable probability that, but for
counsel’s unprofessional errors, the result of the plea negotiations would have been different. And
Savage has no additional facts on which to rely.
Also, in Lee, the Supreme Court recognized a point made by the dissent that a defendant
must still show that he would have been better off going to trial. The Court noted “[t]hat is true
when the defendant’s decision about going to trial turns on his prospects of success and those are
affected by the attorney’s error—for instance, where a defendant alleges that his lawyer should
have but did not seek to suppress an improperly obtained confession.” See id., 137 S. Ct. at 1965
(citing Premo v. Moore, 562 U.S. 115, 118 (2011)). Savage’s claimed error fits within this box.
The relief provided in Lee was based on an error “that affected Lee’s understanding of the
consequences of pleading guilty.” 137 S. Ct. at 1965. Nothing about Savage’s complaint had to do
with his understanding of the potential consequences for pleading guilty. Although the focus on
Savage’s state of mind is paramount, it is not viewed in a vacuum. A defendant’s subjective belief
he could have received a better deal is not sufficient without evidence to support it. Ultimately,
Grant’s deficient advice had an impact on an additional piece of admissible evidence if the case
went to trial, not one that affected Savage’s understanding of the consequences of pleading guilty.
See Lee, 137 S. Ct. at 1965.
Last, Savage takes issue with the district court’s conclusion, restated by the State on appeal,
that because Savage cut off some questioning during the civil deposition, he understood his right
to not be compelled to give incriminating testimony “notwithstanding” his counsel’s failure to so
advise him. Indeed, when the full context is considered, the deposition transcript does not support
the conclusion that Savage’s temporary refusals to answer questions were indicative of a belief
that, despite Grant’s deficient advice on that point, he could rely on the Fifth Amendment to avoid
answering incriminating questions.
For example, when Savage initially told the attorney conducting the deposition, “I’m done”
and “I’m not answering any more questions,” the plaintiffs’ attorney responded by informing
Savage that he could not actually refuse to answer the questions: “Let me represent to you, at some
point if you refuse, I can get a court order to force you to comply with some of the questions, so -
13
- at your expense, so I’d rather finish up today if you’d be willing to do that.” Savage then went
on to answer incriminating questions. In addition, the following exchange took place at the end of
the deposition:
Q. So the first [gas] can was intended for Ms. Gaffney’s house, wasn’t it? You
filled it up with the intent of going there?
A. I had no intent. It just happened.
Q. I’m sorry. You filled up the gas can –
A. I said I’m done.
Q. I’m sorry. I can’t hear you.
A. I’m done.
As suggested by Savage, the full context of that statement does not support the conclusion that
Savage believed, despite counsel’s deficient advice, he could rely on the Fifth Amendment to avoid
giving incriminating answers, particularly when he had already answered the incriminating
question. That said, this argument pertains to whether Grant was ineffective, which is not at issue
on appeal. It is undisputed that Savage did not want to participate in the civil deposition and he
made incriminating statements due to Grant’s deficient advice. However, that does not prove that
Savage was prejudiced by the deficient performance. Ultimately, the district court focused on the
evidence that showed that Savage intended to plead guilty after he was arrested and found the State
had overwhelming admissible evidence of Savage’s guilt, independent of the deposition. Savage
failed to show error in the district court’s determination that there was no reasonable probability
of a different outcome but for Grant’s deficient performance. The district court’s decision denying
post-conviction relief is affirmed.
IV. CONCLUSION
We affirm the district court’s decision denying Savage’s petition for post-conviction relief.

Justices BRODY, STEGNER, and ZAHN CONCUR.

MOELLER, J., concurring.

I concur with the majority’s result and reasoning in this matter. However, I feel compelled
to write separately to highlight my own concerns due to the uniquely disturbing circumstances of
this case.

14
 By declining to advise Savage as to whether he should comply with a subpoena to testify
in a civil deposition regarding the same subject matter as his pending criminal case, Savage was
essentially abandoned by his attorney when he needed him most. His attorney’s failure to advise
him of his Fifth Amendment right to refuse to answer incriminating questions in a civil deposition
resulted in Savage attending his deposition, where he made highly incriminating statements
concerning his pending arson charges. Not even the State disputes the district court’s conclusion
that the representation Savage received from his court-appointed counsel was deficient.
Ultimately, the majority concludes, as did the district court, that although his trial counsel’s
conduct was deficient under the first prong of Strickland v. Washington, 466 U.S. 668 (1984),
Savage failed to establish prejudice under its second prong. Savage attempted to show prejudice
by asserting that he would not have accepted the plea deal offered by the State if the State had not
possessed the significant negotiating leverage the incriminating deposition gave it. Yet, Savage
does not contend that he actually ever intended to go to trial. The district court concluded, and the
majority ultimately agreed, that Savage’s claim for post-conviction relief failed because the
evidence supported the conclusion that: (1) he had decided to plead guilty before the deposition
was taken; (2) his refusal to answer some questions in the deposition demonstrated he understood,
and asserted, his right against self-incrimination at times during the deposition; and (3) the State’s
overwhelming evidence of guilt, even disregarding the incriminating deposition testimony,
showed that rejecting the plea agreement would not have been a rational decision. Therefore, the
majority concludes that “Savage failed to show error in the district court’s determination that there
was no reasonable probability of a different outcome but for [trial counsel’s] deficient
performance.”
Despite my misgiving, ultimately I cannot disagree with these conclusions. Frankly, the
sheer amount and highly inculpatory nature of the evidence assembled by the State made it unlikely
that Savage would have been acquitted or that he would have received any better offer from the
State. Additionally, given the horrific actions of Savage, it is unlikely that a judge would have
agreed to a plea agreement binding the court to anything less than a prison sentence. Savage’s
actions were more than just an attack on a random residence—they were an attack on the home of
his ex-wife’s divorce attorney, her police officer husband, and, in many ways, an attack on the
legal system itself. Nevertheless, I write separately only to observe that the majority’s holding,
which I have joined, should not be seen as somehow creating a safe-harbor for future cases of
15
ineffective assistance of counsel. Indeed, but for Savage’s failure to demonstrate any prejudice, it
is unlikely that we would ever countenance such deficient performance, or find it non-prejudicial.
It is also worth noting that such grossly deficient performance by trial counsel, even if not
demonstrably prejudicial under Strickland, is inconsistent with the oath every attorney takes on
admission to the Idaho State Bar to “represent [their] clients with vigor and zeal.” The Preamble
to the Idaho Rules of Professional Conduct states, “[a]s advisor, a lawyer provides a client with an
informed understanding of the client’s legal rights and obligations and explains their practical
implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the
adversary system.” I.R.P.C., Preamble, § 2. Likewise, the Comments to Rule 1.3, which concerns
“diligence,” states:
A lawyer should pursue a matter on behalf of a client despite opposition,
obstruction or personal inconvenience to the lawyer, and take whatever lawful and
ethical measures are required to vindicate a client’s cause or endeavor. A lawyer
must also act with commitment and dedication to the interests of the client and with
zeal in advocacy upon the client’s behalf.
Id., Rule 1.3, Comment 1. Furthermore, when acting as a public defender, “[a]n appointed lawyer
has the same obligations to the client as retained counsel, including the obligations of loyalty …”
Id., Rule 6.2, Comment 3. These rules are not merely aspirational—they are duties applicable to
every attorney in Idaho. In my view, this was anything but a zealous defense. Defense counsel fell
far short of living up to the most basic of his professional responsibilities.
In sum, while I concur in the result, it remains vexing to me because Savage should never
have been allowed to participate in that deposition without his attorney at least arming him with
the knowledge of his constitutional right against self-incrimination. While I agree that prejudice
was not sufficiently demonstrated by the record in this case, it would be most disappointing to
learn that such an egregious failure of representation ever occurred again in Idaho.

16