Hughes v. State

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 35132

DERRICK LAWRENCE HUGHES, )
)
Petitioner-Appellant, ) 2009 Opinion No. 68
)
v. ) Filed: October 14, 2009
)
STATE OF IDAHO, ) Stephen W. Kenyon, Clerk
)
Respondent. )
)

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
Falls County. Hon. Randy J. Stoker, District Judge.

Order of the district court summarily dismissing application for post-conviction
relief, affirmed.

Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Molly J.
Huskey argued.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
________________________________________________
GRATTON, Judge
Derrick Lawrence Hughes appeals from the summary dismissal of his application for
post-conviction relief. We affirm.
I.
FACTS AND PROCEDURAL BACKGROUND
The State charged fifty-six-year-old Hughes, by indictment, with twenty-one counts
arising from unlawful sexual conduct with sixteen-year-old P.M. Pursuant to a plea agreement,
Hughes pled guilty to five counts of rape, Idaho Code § 18-6101(1), two counts of sexual battery
of a minor, I.C. § 18-1508A, one count of disseminating material harmful to minors, I.C. § 18-
1515(1)(a), and two counts of possession of sexually exploitive materials, I.C. § 18-1507A, with
the State agreeing to dismiss the remaining counts. The State also agreed to recommend a
unified sentence of life, with twenty-five years determinate, and Hughes was free to argue for
whatever sentence he felt was appropriate.

1
 Prior to sentencing, the sentencing court ordered a Psychosexual Evaluation (PSE) and a
Presentence Investigation Report (PSI). As part of the PSE, Hughes also underwent a polygraph
examination. At the sentencing hearing, Hughes requested leave to obtain a second PSE, which
was denied. Hughes was sentenced to an aggregate unified term of life, with twenty-five years
determinate. Hughes appealed, and this Court affirmed Hughes‟ judgment of conviction and
sentence. State v. Hughes, 2005 Unpublished Opinion No. 633 (Ct. App. Oct. 26, 2005).
Thereafter, Hughes filed a pro se application for post-conviction relief claiming
violations of his Fourth, Fifth, Sixth, and Fourteenth Amendment rights. Hughes also moved for
appointment of counsel, which was granted. Hughes‟ counsel filed an amended application for
post-conviction relief. The State moved for summary dismissal. After oral argument, the post-
conviction court granted the State‟s motion. This appeal followed.
II.
ANALYSIS
An application for post-conviction relief initiates a proceeding that is civil in nature.
State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Clark v. State, 92 Idaho 827,
830, 452 P.2d 54, 57 (1969); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct.
App. 1992). Like a plaintiff in a civil action, the applicant must prove by a preponderance of
evidence the allegations upon which the request for post-conviction relief is based. I.C. § 19-
4907; Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). An application for
post-conviction relief differs from a complaint in an ordinary civil action. An application must
contain much more than “a short and plain statement of the claim” that would suffice for a
complaint under I.R.C.P. 8(a)(1). Rather, an application for post-conviction relief must be
verified with respect to facts within the personal knowledge of the applicant, and affidavits,
records or other evidence supporting its allegations must be attached, or the application must
state why such supporting evidence is not included with the application. I.C. § 19-4903. In
other words, the application must present or be accompanied by admissible evidence supporting
its allegations, or the application will be subject to dismissal.
Idaho Code § 19-4906 authorizes summary dismissal of an application for post-
conviction relief, either pursuant to motion of a party or upon the court‟s own initiative.
Summary dismissal of an application pursuant to I.C. § 19-4906 is the procedural equivalent of
summary judgment under I.R.C.P. 56. Summary dismissal is permissible only when the

2
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. If such a factual issue is
presented, an evidentiary hearing must be conducted. Gonzales v. State, 120 Idaho 759, 763, 819
P.2d 1159, 1163 (Ct. App. 1991); Hoover v. State, 114 Idaho 145, 146, 754 P.2d 458, 459 (Ct.
App. 1988); Ramirez v. State, 113 Idaho 87, 89, 741 P.2d 374, 376 (Ct. App. 1987). Summary
dismissal of an application for post-conviction relief may be appropriate, however, even where
the State does not controvert the applicant‟s evidence because the court is not required to accept
either the applicant‟s mere conclusory allegations, unsupported by admissible evidence, or the
applicant‟s conclusions of law. Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App.
1994); Baruth v. Gardner, 110 Idaho 156, 159, 715 P.2d 369, 372 (Ct. App. 1986).
On review of a dismissal of a post-conviction relief application without an evidentiary
hearing, we determine whether a genuine issue of fact exists based on the pleadings, depositions,
and admissions together with any affidavits on file. Ricca v. State, 124 Idaho 894, 896, 865 P.2d
985, 987 (Ct. App. 1993). In post-conviction actions, the district court, as the trier of fact, is not
constrained to draw inferences in favor of the party opposing the motion for summary
disposition; rather the district court is free to arrive at the most probable inferences to be drawn
from uncontroverted evidence. Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App.
2008).
Hughes raises several issues in his application for post-conviction relief, all based upon
assertions of ineffective assistance of counsel. 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 defendant must show that the attorney‟s performance was
deficient and that the defendant 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 applicant has the burden of showing that the attorney‟s
representation fell below an objective standard of reasonableness. Aragon v. State, 114 Idaho
758, 760, 760 P.2d 1174, 1176 (1988). To establish prejudice, the applicant must show a
reasonable probability that, but for the attorney‟s deficient performance, the outcome of the trial
would have been different. Aragon, 114 Idaho at 761, 760 P.2d at 1177.

3
 Hughes first claims that trial counsel was ineffective for failing to be present during the
PSE. Second, Hughes contends that trial counsel was ineffective in failing to move to suppress
the PSE because the polygraph results, which were incorporated into the PSE, were obtained in
violation of Hughes‟ Fifth Amendment right to counsel. Third, Hughes argues that the district
court erred in dismissing his claim that his counsel was ineffective for failing to ensure that
Hughes received Miranda1 warnings prior to his participation in the PSI. Fourth, Hughes asserts
that his attorney was ineffective for failing to obtain an independent, confidential psychosexual
evaluation prior to sentencing. Fifth, Hughes claims that his trial counsel was ineffective in
failing to move to suppress the results of the polygraph test. Sixth, Hughes argues that while the
district court correctly determined that Hughes‟ trial counsel was deficient for failing to advise
Hughes regarding his rights relative to the PSE, the district court erred in its analysis of the
prejudice prong.
A. Ineffective Assistance of Counsel - Sixth Amendment Right to the Physical Presence
of Counsel at the PSE and Polygraph.

Hughes claims that his attorney was ineffective because he was not present during the
PSE and polygraph. Hughes argues that the Sixth Amendment guarantees the right to the
effective assistance of counsel during all phases of a PSE and that the assistance of counsel
necessarily includes the presence of counsel. He further asserts that a Sixth Amendment right to
the presence of counsel during all phases of the PSE is necessary in order to protect his Fifth
Amendment rights against self-incrimination.
The Sixth Amendment to the United States Constitution and Article I, § 13 of the Idaho
Constitution, guarantee a criminal defendant the right to the effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 685-86 (1984); Ivey v. State, 123 Idaho 77, 80, 844 P.2d
706, 709 (1992); Aragon v. State, 114 Idaho 758, 760-61, 760 P.2d 1174, 1176-77 (1988). This
right extends to all “critical stages” of the adversarial proceedings against a defendant. United
States v. Wade, 388 U.S. 218, 224 (1967); Estrada v. State, 143 Idaho 558, 562, 149 P.3d 833,
837 (2006). As set forth by the Idaho Supreme Court in Estrada:
In determining whether a particular stage is “critical,” it is necessary “to
analyze whether potential substantial prejudice to defendant‟s rights inheres in the

1
Miranda v. Arizona, 384 U.S. 436 (1966).

4
 particular confrontation and the ability of counsel to help avoid that prejudice.”
Wade, 388 U.S. at 227, 87 S.Ct. at 1932, 18 L.Ed.2d at 1157.

Estrada, 143 Idaho at 562, 149 P.3d at 837. “[I]f the stage is not critical, there can be no
constitutional violation, no matter how deficient counsel‟s performance.” United States v.
Benlian, 63 F.3d 824, 827 (9th Cir. 1995); see Estrada, 143 Idaho at 562, 149 P.3d at 837.
Therefore, we must first address whether the PSE is a critical stage.
In Estrada, the Court held that the Sixth Amendment guaranteed the right to the
assistance of counsel for advice regarding participation in a PSE. Id. Hughes asserts that in
order for the Estrada Court to have recognized a Sixth Amendment right to the advice of
counsel, it must have implicitly held that the entire process of the PSE is a critical stage and,
thus, Hughes was entitled to the assistance of, including the presence of, counsel at all times
during the PSE. The State argues that Estrada‟s “critical stage” determination was only in
relation to sentencing, which is acknowledged as a critical stage. See Retamoza v. State, 125
Idaho 792, 796, 874 P.2d 603, 607 (Ct. App. 1994) (citing Mempa v. Rhay, 389 U.S. 128, 134
(1967)). The State asserts that, as part of a criminal defendant‟s Sixth Amendment right to the
assistance of counsel during sentencing, the defendant has, under Estrada, the limited right to the
advice of counsel regarding the decision as to whether to participate in the PSE, which advice
must necessarily be given prior to the conduct of the PSE and as a component of representation
at sentencing. Thus, the State claims that Estrada did not hold that all phases of a PSE
constituted a critical stage for Sixth Amendment right to counsel purposes.
The Estrada Court identified the issue to be addressed as follows:
The first question presented by this case is whether a court-ordered
psychosexual evaluation constitutes a critical stage of litigation at which the Sixth
Amendment right to counsel applies. While neither party in this case directly
raises this issue, the question is indirectly raised as a necessary precursor to the
arguments presented regarding Estrada‟s claim for ineffective assistance of
counsel.

Estrada, 143 Idaho at 561, 149 P.3d at 837. The Court further stated:
This Court‟s finding that a Sixth Amendment right to assistance of counsel in the
critical stage of a psychosexual evaluation inquiring to a defendant‟s future
dangerousness, does not necessarily require the presence of counsel during the
exam.

5
Estrada, 143 Idaho at 562, 149 P.3d at 838 (italics in original; underlining added). The
underlined language may be read to support the contention that the Estrada Court determined
that the PSE and all its phases constitute a critical stage. However, the Estrada Court further
held that its ruling was “limited to the finding that a defendant has a Sixth Amendment right to
counsel regarding only the decision of whether to submit to a psychosexual exam.” Estrada, 143
Idaho at 562-63, 149 P.3d at 837-38 (emphasis added).2 This language may be read to support
the contention that the Estrada Court limited the critical stage, and hence a right to counsel‟s
assistance, to only the decision to participate in the PSE. Leaving aside for the moment the
question of the scope and extent of counsel‟s assistance and/or presence, this language raises the
question of whether it is the decision to undergo the PSE, or the evaluation itself, that is the
critical stage.
Assuming, first, that the critical stage is only the decision to undergo the PSE, then
Hughes‟ claim that he was entitled to the presence of counsel at all phases of the PSE including
the polygraph fails. In that case, Hughes‟ right to effective assistance of counsel would be, as in
Estrada, limited to the assistance of counsel, through advice, relative to the decision to
participate in the PSE. Moreover, aside from Estrada‟s limitation of the right to counsel to only
the decision to participate in the PSE, there is support for this more narrow view of the critical
stage. We previously determined in State v. Curless, 137 Idaho 138, 44 P.3d 1193 (Ct. App.
2002), that the PSE itself was not a critical stage for Sixth Amendment purposes, which was not
expressly overruled by Estrada. Only Estrada and a case which it cites, State v. Tinkham, 871
P.2d 1127 (Wash. App. 1994), contain language which can be read as holding that all phases of a
PSE constitute a critical stage.3 Hughes has cited no other case, and our research has revealed
none, which directly holds that a psychiatric or psychosexual evaluation, performed after the

2
The Estrada Court expressly noted that Estrada had not argued that his attorney should
have been present during the PSE.
3
However as addressed herein, neither Estrada nor Tinkham hold that a defendant is
entitled to have counsel present during the evaluation. While the examination in Tinkham was
not a PSE, but rather a general psychiatric examination, it was prepared, as in Estrada, for
sentencing purposes.

6
determination of guilt and for the express purpose of sentencing, is a critical stage for Sixth
Amendment purposes.4
While that critical stage analysis relative to pretrial psychiatric examinations may not be
identical to a PSE, the test is the same. In that context, the majority of courts have held that a
pretrial psychiatric examination is not a critical stage and several courts have drawn a distinction
in the critical stage analysis between the decision to undergo a psychiatric examination and the
actual conduct of the examination. In United States. v. Byers, 740 F.2d 1104 (D.C. Cir 1984),
then Judge, now Justice, Antonin Scalia,5 writing for the plurality, stated that in order for the
Sixth Amendment to apply, “the accused must find himself „confronted, just as at trial, by the
procedural system, or by his expert adversary, or by both.‟” Byers, 740 F.2d at 1117-1118
(quoting United States v. Ash, 413 U.S. 300, 310 (1973)). The court held that the defendant was
confronted by the procedural system at the point at which he had to make decisions relative to
psychiatric examination, but not the psychiatric interview itself. The court further found that the
defendant was not confronted by his expert adversary during the psychiatric interview. The
examining psychiatrist was not an “adversary” or an expert in the “relevant sense,” that is, in
“the intricacies of substantive and procedural criminal law.” Byers, 740 F.2d at 1118-1120
(quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)) (plurality opinion); see also Commonwealth
v. Trapp, 668 N.E.2d 327, 330 (Mass. 1996) (“Although the decision to undergo psychiatric
evaluation is a critical stage, Estelle v. Smith, supra at 470, 101 S.Ct. at 1876-1877, the interview
itself is not. Byers, supra at 1118-1121.”); State v. Martin, 950 S.W.2d 20, 26 (Tenn. 1997)
(“Accordingly, we agree with the courts which have distinguished the „critical stage‟ prior to a
psychiatric examination from the examination itself.”). Thus, as noted, if the critical stage
recognized in Estrada was only the decision to undergo the PSE, a view consistent with the
outcome of Estrada and the above-cited decisions, then Hughes‟ claim that he was entitled to the

4
The cases cited by Hughes do not so hold. Montejo v. Louisiana, 129 S.Ct. 2079 (2009),
involved the proper standard relating to waiver of the right to counsel. In Estelle v. Smith, 451
U.S. 454 (1981), the evaluation was conducted before trial but, without notice that it could be
used at sentencing, was so used. In State v. Everybodytalksabout, 166 P.3d 693 (Wash. 2007),
statements incorporated into the PSI were used against the defendant in a subsequent trial, not
sentencing. In re Carter, 848 A.2d 281 (Vt. 2004), involved a PSI and goes against the great
weight of authority regarding the PSI being a critical stage.
5
Joined by then Judge, now Justice, Ruth Bader-Ginsburg.

7
presence of counsel at all phases of the PSE including the polygraph fails, since we would not
extend Estrada.
Assuming, second, the Estrada Court viewed the critical stage to include not only the
decision to undergo the examination but also the examination process itself, then our analysis
turns to whether that determination necessarily means that Hughes must be entitled to the
presence of counsel at all such phases of the PSE. Hughes contends that once a critical stage is
defined, the Sixth Amendment guarantees the right to have counsel present at all times during
that critical stage. The State argues that, since the right Hughes seeks to protect relative to the
PSE is the right against self-incrimination, the Sixth Amendment right to the effective assistance
of counsel is satisfied through counsel‟s advice relative to participation in the PSE, which does
not require counsel‟s presence during the examination itself.
Hughes asserts that whenever a critical stage has been identified, the right to the presence
of counsel during that stage has been guaranteed. Hughes cites, as support for this proposition,
Mempa v. Rhay, 389 U.S. 128 (1967) (right to presence of counsel at sentencing hearing); White
v. Maryland, 373 U.S. 59 (1963) (right to presence of counsel at preliminary hearing); Gideon v.
Wainwright, 372 U.S. 335 (1963) (right to presence of counsel at trial); and, Hamilton v.
Alabama, 368 U.S. 52 (1961) (right to presence of counsel at arraignment). Indeed, recently in
Montejo v. Louisiana, 129 S.Ct. 2079 (2009), the Court reiterated:
Under our precedents, once the adversary judicial process has been
initiated, the Sixth Amendment guarantees a defendant the right to have counsel
present at all “critical” stages of the criminal proceedings. United States v. Wade,
388 U.S. 218, 227-228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Powell v.
Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Interrogation by the
State is such a stage. Massiah v. United States, 377 U.S. 201, 204-205, 84 S.Ct.
1199, 12 L.Ed.2d 246 (1964); see also United States v. Henry, 447 U.S. 264, 274,
100 S.Ct. 2183, 65 L.Ed.2d 115 (1980).

Montejo, 129 S.Ct. at 2085.
As an initial matter, we note that Hughes has cited no case that expressly holds that there
is a Sixth Amendment right to the presence of counsel during the conduct of the PSE
examination itself when the PSE is exclusively used for sentencing purposes, and our research
has revealed none. We turn, then, to Estrada and Estelle. In Estrada, our Supreme Court held:
It makes no sense that a defendant would be entitled to counsel up through
conviction or entry of a guilty plea, and would also be entitled to representation at
sentencing, yet would not be entitled to the advice of counsel in the interim period

8
 regarding a psychosexual evaluation. The analysis in Estelle v. Smith, 451 U.S.
454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), is instructive. In Estelle, the United
States Supreme Court ruled that the capital defendant‟s pre-trial psychiatric
evaluation was a critical stage of the proceedings. Id. at 470, 101 S.Ct. at 1877,
68 L.Ed.2d at 373-74. The Court stated the defendant had a Sixth Amendment
right to the assistance of counsel before submitting to the interview, observing
that it “is central to [the Sixth Amendment] principle that in addition to counsel‟s
presence at trial, the accused is guaranteed that he need not stand alone against the
State at any stage of the prosecution, formal or informal, in court or out, where
counsel‟s absence might derogate from the accused‟s right to a fair trial.” Id. at
470-71, 101 S.Ct. at 1876-77, 68 L.Ed.2d at 373-74 (quotation omitted).
....
Importantly, the Estelle Court recognized that the defendant was not
seeking a right to have counsel actually present during the exam. Id. at 471, n. 14,
101 S.Ct. at 1877, n. 14, 68 L.Ed.2d at 374, n. 14. This clarification reflects a
difference between the “limited right to the appointment and presence of counsel
recognized as a Fifth Amendment safeguard in Miranda” and a defendant‟s Sixth
Amendment right to assistance of counsel. See id.; see also State v. Tinkham, 74
Wash.App. 102, 871 P.2d 1127, 1131 (1994) (ruling a court-ordered
psychological exam to determine a defendant‟s future dangerousness for
sentencing purposes is a critical stage requiring the assistance of counsel, but
clarifying “we are not holding that counsel has a right to be present, only that the
defendant has the right to advice”). This Court‟s finding that a Sixth Amendment
right to assistance of counsel in the critical stage of a psychosexual evaluation
inquiring to a defendant‟s future dangerousness, does not necessarily require the
presence of counsel during the exam. Because Estrada does not argue his
attorney should have been present during the evaluation, this ruling is limited to
the finding that a defendant has a Sixth Amendment right to counsel regarding
only the decision of whether to submit to a psychosexual exam.

Estrada, 143 Idaho at 562-63, 149 P.3d at 837-38 (emphasis in original). It is evident that
Estrada drew upon Estelle in order to distinguish between the advice of counsel and the presence
of counsel under the Sixth Amendment. The Byers court provides additional context regarding
Estelle‟s critical stage analysis and the right to the assistance versus presence of counsel issue:
The foregoing discussion explains why the holding of Estelle v. Smith,
supra, has relevance to this case. There counsel had not been advised, in advance
of his client‟s pretrial psychiatric examination to determine competency to stand
trial, that the psychiatrist would attempt to assess in addition the accused‟s future
dangerousness, for use in any subsequent sentencing hearing-which use was later
made. The accused had neither pleaded insanity nor given any notice of intent to
plead insanity, and clearly had a Fifth Amendment right to decline to undergo the
psychiatric inquiry for sentencing purposes. In that inquiry, therefore, although
the defendant was not confronted by his adversary he was confronted “by the
legal system,” in that he had a law-related choice before him, and could have

9
 profited from the expert advice of counsel “in making the significant decision of
whether to submit to the examination and to what end the psychiatrist‟s findings
could be employed,” 451 U.S. at 471, 101 S.Ct. at 1877. It was that, and that
alone which (given the importance of the matter involved) caused the interview
“to be a „critical stage‟ of the aggregate proceedings against respondent,” id. at
470, 101 S.Ct. at 1876-which is why the Court described its holding as affirming
a Sixth Amendment right to assistance of counsel “before submitting to the . . .
psychiatric interview,” id. at 469, 101 S.Ct. at 1876 (emphasis added). The Court
specifically disavowed any implication of a “constitutional right to have counsel
actually present during the examination,” citing the dissent in our opinion in
Thornton v. Corcoran, supra. Id. at 470 n. 14.

Byers, 740 F.2d at 1119 (emphasis in original).
The Estrada and Estelle Courts took pains to distinguish the right to the advice of counsel
regarding the examination process from a right to the presence of counsel during the examination
process. If, as Hughes argues, the Sixth Amendment provides an absolute right to the presence
of counsel at all times during a “critical stage,” there would be no reason for the Estrada and
Estelle Courts to engage in any analysis of a distinction between the advice of counsel and the
presence of counsel. Yet they did so. Each Court limited the right to the advice of counsel prior
to the examination. Thus, if we assume here that both Estrada and Estelle can be read to hold
that the entire examination process is a critical stage, we must also take from those cases that the
Courts did not agree that the Sixth Amendment automatically provided an absolute right to the
presence of counsel at all times during that “critical stage.”
Several factors support the determination that the advice of counsel before the PSE
satisfies the Sixth Amendment. First, as noted in Byers, supra, the examination phase is
materially different from the pre-examination advice and decision phase. The defendant is
confronted by the procedural system at the point at which the defendant must make decisions
relative to psychiatric examination, but not the psychiatric interview itself. Byers, 740 F.2d at
1118-1120. At the decisional point, the defendant is confronted by the legal system in that a
law-related choice must be made, from which the defendant could benefit from the advice of
counsel. Id. In addition, the defendant is not confronted by his expert adversary during the
psychiatric interview. Id. Thus, the basis for recognition of a critical stage and its protections
does not necessarily fit the examination phase. Second, the right sought to be protected is the
right against self-incrimination. The advice of counsel during the decisional phase provides the
defendant with information as to the examination process as well as the right to refuse

10
examination to avoid self-incrimination. Thus armed, the defendant can adequately proceed
through the examination. Third, even if the defendant could further benefit from counsel‟s
accessibility during the examination, overall, counsel‟s presence would hinder rather than further
the process:
Even if a psychiatric interview otherwise met one of the two theoretical
tests for Sixth Amendment protection, it would be relevant to consider the
pragmatic effects of presence of counsel upon the process. The Sixth
Amendment, like the Fifth (as we have earlier discussed), is not oblivious to
practical consequences. In Wade, for example, the Court felt constrained to note
that “[n]o substantial countervailing policy considerations have been advanced
against the requirement of the presence of counsel.” 388 U.S. at 237, 87 S.Ct. at
1937. That is not so here. The “procedural system” of the law, which is one
justification for the presence of counsel and which, by the same token, the
presence of counsel brings in its train, is evidently antithetical to psychiatric
examination, a process informal and unstructured by design. Even if counsel
uncharacteristically sat silent and interposed no procedural objections or
suggestions, one can scarcely imagine a successful psychiatric examination in
which the subject‟s eyes move back and forth between the doctor and his attorney.
Nor would it help if the attorney were listening from outside the room, for the
subject‟s attention would still wander where his eyes could not. And the
attorney‟s presence in such a purely observational capacity, without ability to
advise, suggest or object, would have no relationship to the Sixth Amendment‟s
“Assistance of Counsel.”

Byers, 740 F.2d at 1120. Indeed, the Estelle Court referenced this countervailing consideration:

Respondent does not assert, and the Court of Appeals did not find, any
constitutional right to have counsel actually present during the examination. In
fact, the Court of Appeals recognized that “an attorney present during the
psychiatric interview could contribute little and might seriously disrupt the
examination.” 602 F.2d at 708. Cf. Thornton v. Corcoran, 132 U.S.App.D.C.
232, 242, 248, 407 F.2d 695, 705, 711 (1969) (opinion concurring in part and
dissenting in part).

Estelle, 451 U.S. at 471, n.14. As a practical matter, counsel‟s presence could largely negate the
value of the examination as it would likely hinder the ability of the examiner to conduct an
effective examination. Thus, it is apparent that there are important differences between the
examination phase and the advice and decision phase relative to a PSE and the attendant need for
the presence or assistance of counsel.
The Sixth Amendment right to the effective assistance of counsel, in the context of a
PSE, is satisfied by counsel advising the defendant prior to the conduct of the examination itself,

11
without requiring counsel‟s physical presence at the examination. Furthermore, we are not
inclined to extend the holding in Estrada where the Court explicitly limited its ruling to the
advice of counsel prior to the PSE. As long as appropriate advice is given prior to the
examination that comports with Estrada, the Sixth Amendment requirement for effective
assistance of counsel has been satisfied. Thus, Hughes‟ counsel was not ineffective for failing to
be present during the PSE.
B. Ineffective Assistance of Counsel - Fifth Amendment Right to the Physical Presence
of Counsel at the Polygraph Taken Incident to the PSE.

Having determined that the Sixth Amendment did not afford Hughes a right to the
presence of counsel during the PSE, we must next consider his contention that he possessed a
Fifth Amendment right to counsel during the polygraph because the polygraph test constituted a
custodial interrogation. Hughes asserts that he requested to have counsel present at the
polygraph examination which was not honored and, therefore, his Fifth Amendment right was
violated. Further, he argues that since the PSE incorporated and relied on the unconstitutionally
obtained polygraph, counsel should have moved to suppress the PSE. Finally, Hughes avers that
had the motion to suppress been filed, he would have prevailed upon the motion, thus
demonstrating prejudice by counsel‟s ineffective assistance.
The Fifth Amendment does not contain specific language regarding a right to counsel.
The Fifth Amendment provides a constitutional right against self-incrimination. It is the Sixth
Amendment which expressly provides a right to the assistance of counsel. The Sixth
Amendment right to counsel attaches at such time as adversarial proceedings against a person
have been initiated. Kirby, 406 U.S. at 688-689. However, the United States Supreme Court
recognized that there are limited circumstances when a person may require the assistance of
counsel to protect the Fifth Amendment right against self-incrimination but a Sixth Amendment
right to counsel has not attached. These limited circumstances arise when the person is
interrogated while in custody, which the Supreme Court has recognized exposes the person to an
unacceptable risk of compelled self-incrimination. Consequently, in Miranda the Court
recognized a right to counsel as a prophylactic protection of the Fifth Amendment right against
compelled self-incrimination in a custodial interrogation setting. Miranda, 384 U.S. at 471-473.
This right to counsel is derivative of the Fifth Amendment right against self-incrimination, but is
commonly referred to as the Fifth Amendment right to counsel. As a further protection of the

12
Fifth Amendment right against self-incrimination, the Miranda Court required that a person in
such custodial interrogation setting must be advised of the right against self-incrimination and
the right to the presence of an attorney during such interrogation. Id.
The Fifth Amendment right to counsel is separate and distinct from the right to counsel
contemplated under the Sixth Amendment. In Estrada, the Court noted the “difference between
the „limited right to the appointment and presence of counsel recognized as a Fifth Amendment
safeguard in Miranda‟ and a defendant‟s Sixth Amendment right to assistance of counsel.”
Estrada, 143 Idaho at 562, 149 P.3d at 837 (quoting Estelle, 451 U.S. at 471, n.14). In McNeil
v. Wisconsin, 501 U.S. 171, 177-78 (1991), the Court stated that “to invoke the Sixth
Amendment interest is, as a matter of fact, not to invoke the Miranda-Edwards6 interest.
(Emphasis in original.) In Estelle, 451 U.S. 454, n.14, the Court noted that “[b]ecause [pretrial]
psychiatric examinations . . . are conducted after adversary proceedings have been instituted, we
are not concerned in this case with the limited right to the appointment and presence of counsel
recognized as a Fifth Amendment safeguard in Miranda.” (Emphasis added.)
A defendant‟s Fifth Amendment privilege against self-incrimination extends to a PSE,
including a polygraph conducted incident thereto. Estrada, 143 Idaho at 563-64, 149 P.3d at
838-39. The question, then, is what constitutional mechanism(s) protects that right in that
setting. As noted, Estrada holds that the Sixth Amendment right to counsel requires that counsel
advise a defendant regarding the right against self-incrimination prior to the conduct of the PSE.
Id. Thus, clearly, the Sixth Amendment does provide a mechanism to protect the Fifth
Amendment right against self-incrimination relative to a polygraph conducted incident to a PSE.
However, Hughes contends that the Fifth Amendment also provides a presence of counsel
mechanism for protection of the right against self-incrimination in this context. In essence,
Hughes claims that the polygraph, taken within and for use in the adversarial proceeding, is of
the character of a Miranda-type custodial interrogation and, thus, a Fifth Amendment right to the
presence of counsel should be recognized.7 Hughes cites no state or federal case that expressly

6
Edwards v. Arizona, 451 U.S. 477 (1981).
7
It should be noted that Hughes does not claim, on this appeal, that he was entitled to be
advised of his right against self-incrimination by someone other than counsel in regard to the
PSE and polygraph.

13
holds that a defendant is entitled, under the Fifth Amendment, to the presence of counsel during
a polygraph conducted incident to a psychological evaluation for sentencing purposes.
Generally, the right to the effective assistance of counsel during an adversarial
proceeding, including advice and presence of counsel, is a Sixth Amendment right.8 Once
adversarial proceedings have been initiated and the Sixth Amendment right to counsel has
attached, it is generally unnecessary to engage in an analysis relative to a Fifth Amendment right
to counsel. We have not been cited to nor have we discovered any instance when the United
States Supreme Court has analyzed the right to the presence of counsel regarding an activity
undertaken within an adversarial proceeding under both the Sixth Amendment‟s critical stage
test and the Fifth Amendment‟s custodial interrogation test. Nevertheless, the Court has
provided some indication that some Fifth Amendment analysis may remain applicable even after
the Sixth Amendment attaches. In McNeil the Court stated:
The purpose of the Sixth Amendment counsel guarantee--and hence the
purpose of invoking it--is to “protec[t] the unaided layman at critical
confrontations” with his “expert adversary,” the government, after “the adverse
positions of government and defendant have solidified” with respect to a
particular alleged crime. Gouveia, 467 U.S., at 189, 104 S.Ct., at 2298. The
purpose of the Miranda-Edwards guarantee, on the other hand--and hence the
purpose of invoking it--is to protect a quite different interest: the suspect‟s
“desire to deal with the police only through counsel,” Edwards, supra, 451 U.S.,
at 484, 101 S.Ct., at 1884. This is in one respect narrower than the interest
protected by the Sixth Amendment guarantee (because it relates only to custodial
interrogation) and in another respect broader (because it relates to interrogation
regarding any suspected crime and attaches whether or not the “adversarial
relationship” produced by a pending prosecution has yet arisen).

McNeil v. Wisconsin, 501 U.S. at 177-78 (italics in original; underlining added). In Montejo, the
Court stated:
It is true, as Montejo points out in his supplemental brief, that the doctrine
established by Miranda and Edwards is designed to protect Fifth Amendment, not
Sixth Amendment, rights. But that is irrelevant. What matters is that these cases,

8
Certainly a situation may exist in which a defendant in an adversarial proceeding, while
in custody, is interrogated regarding matters not related to issues relevant to the adversarial
proceeding, at which time the Fifth Amendment right to counsel would apply, not the Sixth
Amendment (since no adversarial proceeding exists as to the unrelated matters). We note,
however, that inquiry into matters related to future dangerousness, as is common in the PSE, are
matters related to issues in the existing adversarial proceeding to the extent used for sentencing
in that proceeding.

14
 like Jackson, protect the right to have counsel during custodial interrogation--
which right happens to be guaranteed (once the adversary judicial process has
begun) by two sources of law.

Montejo, 129 S.Ct. at 2090 (emphasis in original). These statements could be read as
recognizing some Fifth Amendment based mechanism to protect the right against self-
incrimination even after the Sixth Amendment attaches.
In State v. Lankford, 116 Idaho 860, 871, 781 P.2d 197, 208 (1989), our Supreme Court
took up whether it was error for the trial court to allow an examining psychiatrist to testify at the
sentencing hearing. The principal contention was that the psychiatrist‟s testimony served as an
improper mode for the State to use the defendant‟s own statements against him. The Court
determined that the testimony was admissible in light of a valid waiver and counsel‟s prior
knowledge of the examination. In the context of determining whether Lankford‟s right against
self-incrimination had been honored, the Court stated:
The fifth amendment privilege against self-incrimination and the sixth
amendment right to counsel apply to custodial psychiatric exams conducted prior
to sentencing as well as those conducted prior to trial. Adequate protection of
these rights requires that the examining psychiatrist Mirandize the patient. Estelle
v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981).

Lankford, 116 Idaho at 871, 781 P.2d at 208. The Court did not engage in a Sixth Amendment
analysis. The only other reference to the Sixth Amendment was in describing Lankford‟s claim
as having been denied his right to the “assistance” of counsel. Id. The Lankford Court‟s Fifth
Amendment analysis was focused entirely upon protection of the right against self-incrimination
and did not refer to a right to the presence of counsel or otherwise address the scope of
“assistance” of counsel. In discussing Lankford, the Estrada Court held:
This Court‟s decisions clearly indicate that both at the point of sentencing and
earlier, for purposes of a psychological evaluation, a defendant‟s Fifth
Amendment privilege against self-incrimination applies.2 See State v. Lankford,
116 Idaho 860, 871, 781 P.2d 197, 208 (1989) (“The fifth amendment privilege
against self-incrimination and the sixth amendment right to counsel apply to
custodial psychiatric exams conducted prior to sentencing as well as those
conducted prior to trial.”).
__________________
2
This Court distinguishes between the Fifth Amendment
privilege against self-incrimination and the framework set out
under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16

15
 L.Ed.2d 694 (1966) to protect those rights in certain circumstances.
Id. Miranda warnings are merely a method of protecting one‟s
Fifth Amendment rights. That Miranda is not required does not
mean the privilege against self-incrimination does not exist. See
Minnesota v. Murphy, 465 U.S. 420, 430-34, 104 S.Ct. 1136,
1143-45, 79 L.Ed.2d 409, 421-24 (1984) (noting privilege could
have been invoked during interview with probation officer, but
ruling Miranda warnings not required because the interview was
not a “custodial interrogation”). This case does not address
Miranda, and this Court does not hold that it was necessary for
[the psychosexual evaluator] to Mirandize Estrada before
conducting the psychosexual evaluation.

Estrada, 143 Idaho at 563, n.2, 149 P.3d at 838, n.2 (underlining added). Thus, in quoting
Lankford, the Estrada Court omitted the statement that “adequate protection of these rights
requires that the examining psychiatrist Mirandize the patient,” and then affirmatively stated that
it was not holding that it was necessary for the psychosexual evaluator to Mirandize Estrada
before the PSE.9
Both Lankford and Estrada rely upon Estelle. The Estelle Court‟s Fifth Amendment
discussion regarding Miranda was in specific reference to the “right to remain silent” and that
“anything said can and will be used against the individual in court.” Estelle, 451 U.S. at 467.
Both Estelle‟s and Lankford‟s discussion of Miranda are focused on the warning to a defendant
of the Fifth Amendment right against compelled self-incrimination, and not specifically a Fifth
Amendment right to counsel. As previously noted, the Estelle Court stated that its right to
counsel analysis was under the Sixth Amendment:
Because psychiatric examinations of the type at issue here are conducted
after adversary proceedings have been instituted, we are not concerned in this
case with the limited right to the appointment and presence of counsel recognized
as a Fifth Amendment safeguard in Miranda.

9
The Estrada Court‟s intended effect on the statement in Lankford that the examiner must
Mirandize the defendant is unclear. It may be that the Estrada Court, upon recognizing that
counsel must advise the defendant of the right against self-incrimination prior to the PSE,
determined that Mirandization by the examiner was unnecessary. It may be that the Estrada
Court, acknowledging that no prior court had “articulated a Fifth Amendment right against self-
incrimination as it applies to psychosexual evaluations that may support a harsher sentence in a
non-capital case,” 143 Idaho at 564, 149 P.3d at 839, was drawing a distinction between what is
required in a capital case, as in Lankford, and a non-capital case, as in Estrada.

16
Estelle, 451 U.S. at 471, n.14. This “difference between the „limited right to the appointment
and presence of counsel recognized as a Fifth Amendment safeguard in Miranda‟ and a
defendant‟s Sixth Amendment right to assistance of counsel,” was important to the Estrada
Court in the role of counsel in the protection of the right against self-incrimination. Estrada, 143
Idaho at 562, 149 P.3d at 837 (quoting Estelle, 451 U.S. at 471, n. 14). As Justice Rehnquist
stated when he concurred in Estelle:
The Miranda requirements were certainly not designed by this Court with
psychiatric examinations in mind. . . . Unlike the police officers in Miranda, Dr.
Grigson was not questioning respondent in order to ascertain his guilt or
innocence. Particularly since it is not necessary to decide this case, I would not
extend the Miranda requirements to cover psychiatric examinations such as the
one involved here.

Estelle, 451 U.S. at 475-76 (Rehnquist, J., concurring).
The privilege against self-incrimination extends to a PSE, including a polygraph
conducted incident thereto. Estrada, 143 Idaho at 563-64, 149 P.3d at 838-39. Under varying
fact situations, courts have taken up the question of protection of that Fifth Amendment right and
have required that the right against self-incrimination be communicated to the defendant by way
of Miranda-type warnings or advice of counsel. Discussion of provision of warnings, when the
role of counsel has not been the issue, has necessarily involved a Fifth Amendment Miranda
analysis in order to determine whether someone other than counsel must communicate to the
defendant the right against self-incrimination prior to the examination. However, the courts have
generally not engaged in a Fifth Amendment analysis when the role of counsel in protecting the
defendant regarding the right against self-incrimination has been at issue. Instead, whether, to
what extent, and how counsel is required to assist the defendant in the protection of the right is a
Sixth Amendment analysis. Estrada determined that the Fifth Amendment right against self-
incrimination is protected, in the context of a PSE and incident polygraph, by virtue of the Sixth
Amendment‟s guarantee of effective assistance of counsel, which requires that counsel inform
the client regarding the decision of whether to submit to the PSE and the right to assert the
privilege against self-incrimination during the PSE. This assistance of counsel is provided
through advice prior to the PSE and does not require counsel‟s presence at the PSE. Thus, the
Fifth Amendment supplies the right against self-incrimination but not a right to counsel during a
polygraph conducted incident to a PSE. Protection of the right against self-incrimination in that

17
setting is supplied by the Sixth Amendment‟s right to counsel as set forth in Estrada. We are not
convinced that the Fifth Amendment requires the presence of counsel during the PSE and/or
polygraph conducted incident thereto. Therefore, Hughes‟ counsel was not ineffective for failing
to be present at the polygraph and a motion to suppress the PSE would not have been successful.
C. Ineffective Assistance of Counsel - Failure to Ensure Miranda Warnings Given Prior
to PSI.

Hughes claims that his trial counsel rendered ineffective assistance by failing to ensure
that Hughes had his Miranda rights read to him prior to the PSI. The post-conviction court
determined that the PSI was not a “critical stage” as set forth in Stuart v. State, 145 Idaho 467,
180 P.3d 506 (Ct. App. 2007). Therefore, even if counsel failed to ensure that Hughes had his
Miranda rights read to him prior to the PSI, that failure would not constitute ineffective
assistance of counsel. “[I]f the stage is not critical, there can be no constitutional violation, no
matter how deficient counsel‟s performance.” United States v. Benlian, 63 F.3d 824, 827 (9th
Cir. 1995); see Estrada, 143 Idaho at 562, 149 P.3d at 837.
We recently held that the PSI is not a critical stage and, therefore, no Sixth Amendment
right attaches. Stuart, 145 Idaho at 471, 180 P.3d at 510. Hughes asks this Court to overturn
Stuart. He argues that if the Sixth Amendment attaches through determination of guilt and then
again at sentencing, and, per Estrada, it attaches during the interim period for the PSE, then it
should attach during all of the interim period, including the PSI. However, Estrada took pains to
distinguish between a PSE and a routine PSI:
A psychosexual exam concerned with the future dangerousness of a
defendant is distinguishable from a “routine” presentence investigation.
Specifically, Idaho Rule of Criminal Procedure 32 does not require a defendant‟s
participation in a presentence investigation report, whereas I.C. § 18-8316 states,
“If ordered by the court, an offender . . . shall submit to [a psychosexual]
evaluation. . . .” The presentence report relies greatly on information already
available in public records, such as educational background, residence history and
employment information. See I.C.R. 32(b). In contrast, a psychosexual
evaluation like the one Estrada faced is more in-depth and personal, and includes
an inquiry into the defendant‟s sexual history, with verification by polygraph
being highly recommended. Because of the nature of the information sought, a
defendant is more likely to make incriminating statements during a psychosexual
evaluation than during a routine presentence investigation. As the district court in
this case concluded, “the psychosexual evaluation contained information
concerning Estrada‟s “future dangerousness.”

18
Estrada, 143 Idaho at 562, 149 P.3d at 837 (emphasis in original). We relied, in part, on this
reasoning from Estrada for our determination that the PSI is not a critical stage. See Stuart, 145
Idaho at 470, 180 P.3d at 509. We also noted in Stuart:
The majority of other courts to directly address this issue agree with the
indication in Estrada. Several federal courts have held that a routine presentence
investigation is not a critical stage of the proceedings in a non-capital case. See
United States v. Benlian, 63 F.3d 824, 827 (9th Cir.1995); United States v.
Gordon, 4 F.3d 1567, 1572 (10th Cir.1993); United States v. Tisdale, 952 F.2d
934, 940 (6th Cir.1992); United States v. Hicks, 948 F.2d 877, 885 (4th Cir.1991);
United States v. Woods, 907 F.2d 1540, 1543 (5th Cir.1990); United States v.
Jackson, 886 F.2d 838, 845 (7th Cir.1989). Furthermore, many state courts have
likewise concluded that a non-capital presentence investigation is not a critical
stage. See e.g. Musgrove v. State, 638 So.2d 1347, 1352 (Ala.Crim.App.1992),
aff’d 638 So.2d 1360, 1363 n. 1 (Ala.1993); Lang v. State, 461 N.E.2d 1110,
1115-16 (Ind.1984); People v. Daniels, 149 Mich.App. 602, 386 N.W.2d 609, 613
(1986); State v. Barber, 494 N.W.2d 497, 501-02 (Minn.Ct.App.1993); People v.
Cortijo, 291 A.D.2d 352, 352, 739 N.Y.S.2d 19 (2002); State v. Knapp, 111
Wis.2d 380, 330 N.W.2d 242, 245 (Ct.App.1983).

Stuart, 145 Idaho at 470, 180 P.3d at 509.
Hughes disagrees with the distinction noted in Estrada between the PSE and a routine
PSI. Hughes claims that, in reality, there is no “routine” PSI in Idaho, that much of the
information required by I.C.R. 32 is in-depth and personal rather than public, that the
information gathered during the PSI may result in potential substantial prejudice in the form of
sentence enhancement or additional charges, and that PSI investigators in Idaho are employees of
the executive branch rather than the courts and, thus, government agents. These arguments
present nothing that the Estrada Court was not aware of, including the type of information
gathered, the sources of information, the manner in which it is compiled, by whom the
information is presented, and how the information may positively or negatively affect the
defendant.
Hughes also disagrees with our analysis in Stuart of the holdings in cases from other
jurisdictions. However, our review confirms the correctness of that analysis and that the vast
majority of courts hold that the PSI is not a critical stage. Lastly, Hughes argues that his PSI is
distinguishable from Stuart because the PSE and polygraph were attached to it. However, the
important point for Sixth Amendment analysis is not how the reports are presented to the court,

19
but their preparation. The PSI and the PSE, together with its polygraph, are discrete occurrences
for Sixth Amendment critical stage analysis.
We decline to overturn Stuart. “[T]he rule of stare decisis dictates that we follow
[controlling precedent], unless it is manifestly wrong, unless it has proven over time to be unjust
or unwise, or unless overruling it is necessary to vindicate plain, obvious principles of law and
remedy continued injustice.” Reyes v. Kit Mfg. Co., 131 Idaho 239, 240, 953 P.2d 989, 990
(1998) (quoting Houghland Farms, Inc. v. Johnson, 119 Idaho 72, 77, 803 P.2d 978, 983
(1990)). Hughes has not demonstrated that Stuart is manifestly wrong and, in fact, Stuart is
consistent with our view expressed herein of the Sixth Amendment analysis relative to the PSE.
Since the PSI is not a critical stage, Hughes‟ counsel could not have rendered ineffective
assistance of counsel.
D. Ineffective Assistance of Counsel - Failure to Obtain an Independent, Confidential
Psychiatric Evaluation.

Hughes claims that his trial counsel provided ineffective assistance by failing to secure an
independent psychiatrist for a variety of purposes incident to sentencing. The State counters that
Hughes requested funding to obtain an independent evaluation, which the trial court denied. The
State contends that any dissatisfaction with that ruling should have been raised on direct appeal.
In his reply brief, Hughes responded that he is not appealing the denial of the request to obtain a
second evaluation and, for the first time, articulated his claim as follows:
[Hughes‟] attorney performed below a reasonable standard when he agreed to
have Mr. Hughes participate in a psychosexual evaluation, sight-unseen, and
agreed to the release of that document without knowing what the document
would contain in light of State v. Wood, 132 Idaho 88, 967 P.2d 702 [1998] and
Nelson v. Estelle, 642 F.2d 903 (5th Cir. 1981).

Thus, Hughes now attempts to assert a claim that his attorney performed below a reasonable
standard for failing to ensure that the PSE was not released to the court and the State unless and
until Hughes and his attorney had the opportunity to review the evaluation and then determine
whether it should be released. This is a radically different claim than what was pled and,
therefore, will not be considered. As to the claim that an independent, confidential evaluation
should have been obtained to assist with sentencing issues, Hughes‟ counsel requested funding
from the court which was denied. Counsel, therefore, was not ineffective and, moreover, as the
district court concluded, the denial of the motion could have been raised as an issue on direct

20
appeal. An application for post-conviction relief is not a substitute for an appeal. I.C. § 19-
4901(b). A claim or issue which was or could have been raised on appeal may not be considered
in post-conviction proceedings. Id.; Whitehawk v. State, 116 Idaho 831, 832-33, 780 P.2d 153,
154-55 (Ct. App. 1989).
E. Ineffective Assistance of Counsel - Sixth Amendment Right to the Assistance of
Counsel Regarding the PSE.

1. Estrada Violation.
Hughes argues that his attorney did not provide “adequate assistance in making
decisions” with respect to the PSE and its accompanying polygraph as required by Estrada. As
noted above, Estrada held that there is a Sixth Amendment right to counsel regarding “the
decision of whether to submit to a psychosexual exam.” Estrada, 143 Idaho at 563, 149 P.3d at
838. The post-conviction court assumed for purposes of the summary dismissal motion, that
Hughes‟ assertion that his attorney “did not advise him of his right to remain silent regarding [the
PSE]” was true. The court indicated that Hughes was advised of “his rights” prior to the
polygraph, but noted that the record did not make clear what rights were given. However,
Hughes‟ counsel, at oral argument, acknowledged that Hughes was Mirandized prior to the
polygraph. The post-conviction court held:
Assuming arguendo that Hughes was advised by use of Miranda warnings
before taking the polygraph, this is insufficient as a matter of law to satisfy the
requirements of Estrada. The examination given in this case required Hughes to
respond to more than just the polygraph procedure. He was administered
psychological testing and questioned thoroughly by the examiner. This latter
examination clearly implicated his Fifth Amendment rights. Because his counsel
did not advise him of his rights regarding the entire examination, Hughes did not
receive the effective assistance of counsel and his Sixth Amendment rights were
violated.

(Emphasis in original.) The post-conviction court then determined that Hughes had failed to
demonstrate prejudice, the second prong of the Strickland test, because the sentencing court did
not rely on the PSE to a significant degree and because negative information in the PSE was also
available to the sentencing court independent of the PSE. Hughes contends that the post-
conviction court erred in its determination regarding prejudice.

21
 2. Prejudice.
a. The Prejudice Standard.
Hughes raises three claims regarding the prejudice prong of this ineffective assistance of
counsel claim. First, Hughes contends that Estrada adopted a prejudice standard different from
the Strickland standard, which requires that an applicant establish a reasonable probability that,
but for counsel‟s deficient performance, the result of the proceeding would have been different,
i.e., a different sentence would have been imposed. Instead, Hughes asserts that under Estrada
prejudice exists so long as the sentencing court placed any reliance on the PSE. Second, as an
extension of the reliance test argument, Hughes claims that the court should apply a per se
prejudice standard. In essence, Hughes argues that when a court orders a PSE the court is
presumed to review it and, hence, rely upon it and, therefore, prejudice should be presumed.
Third, Hughes argues that, regardless of the articulation of the prejudice standard, the district
court erred in finding that he was not prejudiced by counsel‟s failure to properly advise him of
his rights relative to the PSE.
As noted, Hughes first argues that he need not demonstrate a reasonable probability that,
but for his counsel‟s deficient performance, the outcome of the proceeding would have been
different. Hughes asserts that he need only show that the sentencing court placed any reliance
on the PSE at sentencing, without regard to any likelihood of change in the outcome, i.e., a
different sentence being imposed. Hughes points to the following language in Estrada to support
his claim:
The sentencing judge‟s specific, repeated references to the psychosexual
evaluation suggest that it did play an important role in the sentencing. While we
do not pass judgment in any way on whether the sentence actually imposed on
Estrada was unreasonable or excessive, nevertheless, Estrada has met his burden
of showing that the evaluation played a role in his sentence. Therefore, Estrada
has demonstrated prejudice as a result of his attorney‟s failure to advise him of his
Fifth Amendment rights.

Estrada, 143 Idaho at 565, 149 P.3d at 840 (emphasis added). We are not persuaded that, by the
above-quoted language, the Estrada Court intended to deviate in any way from the Strickland
standard. In fact, in the paragraph immediately preceding the quote above, the Estrada Court
specifically set forth the Strickland standard as follows:
In addition to showing deficient performance under the first prong of
Strickland, a criminal defendant claiming ineffective assistance of counsel must

22
 demonstrate that the deficiency resulted in prejudice. 466 U.S. at 687, 104 S.Ct.
at 2064, 80 L.Ed.2d at 693. A defendant shows prejudice by establishing “a
reasonable probability that, but for counsel‟s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068, 80
L.Ed.2d at 698. Further, “[a] reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id.

Estrada, 143 Idaho at 565, 149 P.3d at 840.
Thus, it appears that the Estrada Court applied the Strickland standard to the facts and
determined that Estrada had met his burden, i.e., established a reasonable probability that the
outcome would have been different. See id. The Estrada Court determined that the sentencing
court‟s specific and repeated references to the PSE at sentencing were compelling in its analysis
of prejudice. However, we do not believe that the Estrada Court intended to establish a new
standard or hold that the level of the sentencing court‟s reliance on the PSE was the only factor
in analyzing prejudice. The level of a sentencing court‟s reliance on a PSE, to the extent
discernable, is, as discussed below, a factor, but not necessarily determinative, in the prejudice
analysis. Thus, we reject Hughes‟ claim that he need only show that the sentencing court placed
any reliance on the PSE at sentencing in order to demonstrate prejudice and the alternative
contention that prejudice should be presumed. The applicant must demonstrate that there is a
reasonable probability that, absent the PSE, the outcome (sentence) would have been more
favorable to the applicant. A “reasonable probability” does not mean “more likely than not”; it
means a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at
693-94. In the present context, it refers to confidence that the sentence would be the same if the
PSE had not been considered.
We turn to the question of how the Strickland prejudice prong should be applied with
regard to the unique circumstances of a PSE. We conclude that there are three essential factors
which make up the prejudice determination in this context. The first factor is whether the
content of the PSE itself is materially unfavorable. The PSE should be reviewed to determine
the extent and harmful character of statements and admissions made by the applicant and the
conclusions of the evaluator based upon those statements and admissions to determine the level
of negativity, if any. If the PSE is not materially unfavorable, then the second prong of the
Strickland standard has not been met. If the PSE is materially unfavorable to the applicant, the
level of its negativity will then be weighed with two additional factors. The second factor is the

23
extent of the sentencing court‟s reliance on the PSE if it can be demonstrated from the record.
The third factor is the totality of the evidence before the sentencing court.
The first factor focuses on the actual content of the PSE itself, not the extent of reference
thereto by the sentencing court. It is presumed that the sentencing court would read a PSE which
it ordered prior to sentencing. Therefore, regardless of any actual references to the PSE by the
court at sentencing, the level of negativity of the PSE itself weighs on the determination of
prejudice. Obviously, the more or less negative the PSE, the more or less weight it lends toward
a finding of prejudice. The second factor focuses on the discernable reliance placed by the
sentencing court on the information from the applicant recorded in the PSE and the conclusions
based thereon by the evaluator. We appreciate that the sentencing court is not required to set
forth its reasons for the imposition of a particular sentence. See State v. Martinsen, 128 Idaho
472, 475, 915 P.2d 34, 37 (Ct. App. 1996). Thus, proving from the record the sentencing court‟s
reasons for imposing a particular sentence, including the court‟s level of reliance on the PSE,
may not be possible. It is because of this difficulty that we place weight on the negativity of the
PSE itself and apply a multi-factorial test rather than a simple reliance test. The third factor
takes into consideration all of the evidence bearing on sentencing other than the PSE.
Application of this factor does not shift our analysis to a determination of whether the sentence
imposed is supported by the evidence. Rather, the inquiry is whether it can be said, considering
all of the evidence before the sentencing court, that there is a reasonable probability that the PSE
resulted in a greater sentence.
As the United States Supreme Court recognized in Strickland:
In making this determination, a court hearing an ineffectiveness claim
must consider the totality of the evidence before the judge or jury. Some of the
factual findings will have been unaffected by the errors, and factual findings that
were affected will have been affected in different ways. Some errors will have
had a pervasive effect on the inferences to be drawn from the evidence, altering
the entire evidentiary picture, and some will have had an isolated, trivial effect.
Moreover, a verdict or conclusion only weakly supported by the record is more
likely to have been affected by errors than one with overwhelming record support.
Taking the unaffected findings as a given, and taking due account of the effect of
the errors on the remaining findings, a court making the prejudice inquiry must
ask if the defendant has met the burden of showing that the decision reached
would reasonably likely have been different absent the errors.

24
Strickland, 466 U.S. at 695-96. Thus, the weakness or strength of each factor will be considered
and weighed in relation to the others. Ultimately, in order to demonstrate prejudice, the balance
of these factors must undermine the reviewing court‟s confidence that, absent consideration of
the PSE, the sentence would have been the same.
b. The PSE.
Reviewing the PSE itself, it is apparent that the evaluation was materially unfavorable to
Hughes. From the information gathered from Hughes, the evaluator noted one positive factor,
that Hughes “was greatly sorry for his selfish choice regarding his sexual relationship with
[P.M.].” The evaluator concluded that there were five negative factors, including Hughes‟ non-
consensual sexual relationship with P.M., Hughes‟ exploitation of P.M. by taking digital pictures
of her, four failed marriages demonstrating impairment in social relationships, past allegations of
sexual abuse of Hughes‟ then seven-year-old stepdaughter, and Hughes‟ rationalization and
justification of his actions by claiming that he was in love with P.M. and that she met his
emotional needs when he really evinced a self-centered lack of empathy toward a vulnerable
female. The evaluator‟s conclusion was that Hughes was not amenable to out-patient treatment
based on his lack of personal responsibility, empathy, and lack of honesty as demonstrated by his
polygraph. The sentencing court read the PSE as opining that Hughes was a moderate risk to re-
offend, but the court believed, based upon all the evidence, that the risk was actually
“unacceptable and high.” Nonetheless, the PSE was materially unfavorable to Hughes.
Information regarding Hughes‟ conduct and attitude with respect to the offense charged and
allegations regarding past sexual abuse, which the polygraph indicated Hughes was not being
truthful about, underscore the negative aspects of the PSE.
c. The District Court’s Reliance on the PSE.
The sentencing court made only two overt references to the PSE during sentencing. The
first reference was made in the context of the court‟s analysis of the I.C. § 19-2521(2)(b) factors
weighing in favor of probation as an appropriate option, specifically, whether the defendant
contemplated that the criminal conduct would cause or threaten harm:
According to the evaluation performed by [the psychosexual evaluator], he
diagnoses you as having an adult antisocial personality disorder. What adult
antisocial personality disorder connotes is a person who has a lack of empathy for
the suffering of others and the rights of others and who is ready, willing and
prepared to put their own interests first and to lie about doing so and feel no guilt
about having done so.

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 I think that you genuinely do feel remorse at this time. What I can‟t tell is
whether that remorse is for what you did, or for being caught for what you did.

The second reference to the PSE was made in the context of the court‟s analysis of the I.C. § 19-
2521(1) factors supporting imprisonment:
First, I am to consider whether there is an undue risk during the period of a
suspended sentence or probation you will commit another crime. I find that that
is a specific probability and likelihood. In this way, frankly, sir, the ironic thing is
that the one thing you objected to is the evaluation by [the psychosexual
evaluator] and it very frankly is the single best piece of information in your favor.
It evaluates you as a moderate risk of re-offense. Frankly, I have reason to
question the accuracy of the results given the history. Given what‟s gone on
before, it appears to me that the risk of re-offense is unacceptable and high.

At least the first of these overt references regarding antisocial personality disorder shows some
negative reliance on the PSE by the sentencing court.
We note, again, that while specific references to the PSE are indicative of a sentencing
court‟s reliance on that evaluation for sentencing purposes, a court may rely on the PSE without
specific reference. Consequently, Hughes argues that certain statements made by the sentencing
court imply that the court relied on other negative information from the PSE. The first asserted
implicit reference was made in the context of the court‟s analysis of the I.C. § 19-2521(2)(b)
factors weighing in favor of probation as an appropriate option:
First, the first factor I am to consider is whether the defendant‟s criminal
conduct neither caused nor threatened harm. In this case I expressly find as a
matter of fact that this criminal defendant‟s behavior did pose and threaten harm
and in fact result in harm both to the victim in this case and the victims in other
cases before him.

The second asserted implicit reference to the PSE was made in the context of the court‟s analysis
of the I.C. § 19-2521(1) factors supporting imprisonment:
I am to consider finally whether your criminal conduct was the result of
circumstances unlikely to recur. Based upon the information available to me, it
appears that this is the last in a fairly long installment of inappropriate action.
And depending on how one wants to look at this, it has been escalating one piece
at a time.
At different times it‟s apparently involved younger girls than [P.M.], but
I‟m not sure it did so over such a lengthy period of time. These crimes were
repeated. This was not an accident. This isn‟t something where you gave in to a
moment‟s worth of weakness or a stroke of bad judgment. This was over and
over and over. It wasn‟t a mistake.

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 The statements made by the sentencing court relate to underage girls other than P.M.
Hughes contends that the sentencing court was indirectly referencing the PSE when it spoke of
younger girls and underage victims. However, the existence of allegations relative to other
underage victims was not first revealed in the PSE by admissions from Hughes; the district court
had information about these other alleged victims from other sources. Hughes points to the
following statement in the PSE as the principal source of the sentencing court‟s references to
other underage victims:
Past allegations, especially allegations with his then 7-year-old
stepdaughter, [C.C.]. The primary focus of one of the questions on Derrick‟s
polygraph concerned allegations by [C.C.], his step-daughter. The polygraph
results indicate that Derrick was being deceptive in his responses toward sexual
conduct with [C.C.]. Regarding other under age victims, Derrick in his
assessment told me that he did not sexually abuse any other children other than
[P.M.]. However, he responded deceptively to any more under age victims.

Certainly, the sentencing court was aware that Hughes was reported as deceptive regarding the
allegations concerning C.C. and whether there were any other underage victims. This likely
confirmed the existence of other victims. However, the district court specifically mentioned only
those other victims for which there was independent documentation. As to C.C., the district
court casually referred to her in the context of Hughes‟ military service, stating:
You did serve your country honorably in the Navy in Vietnam; although,
you ultimately were discharged for bad conduct as a result of conduct not
apparently unlike that that‟s alleged here. It doesn‟t appear that you have been
repeatedly arrested time and time again. I‟m not sure whether that is accountable
by reason of your having remained under the radar as [the prosecutor] alleges, or
whether you were not engaged in that behavior.
But I will tell you, sir, that looking at the packets of photographs marked
in this case as Exhibits 2 and 3, it appears to me that you were under the radar.

The last sentence quoted above is in reference to the pornographic photographs of Z.M. and
A.G., engaged in sexual acts and various stages of undress that were found on Hughes‟ computer
and indicated that Hughes had been engaged in acts with underage girls. When reviewing the
sentencing factors, the sentencing court stated:
I‟m asked to determine whether you are a multiple offender or
professional criminal. What I will tell you, sir, is that the photographs that I have
looked at in this case suggest to me that you are a multiple offender.

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Thus, the references to other underage victims came from verifiable sources other than
admissions made by Hughes in the PSE. Based upon information discernable from the record,
we cannot conclude that these statements of the court support Hughes‟ contention that the court
impliedly relied on the PSE.
Overall, the sentencing court‟s reliance on the negative aspects of the PSE was apparently
slight. While we may not completely agree with the characterization, the trial court expressly
stated to Hughes that the evaluation was “the single best piece of information in your favor.”
The court indicated that the PSE had evaluated Hughes as a moderate risk of re-offense when,
based upon the totality of the evidence, the court believed Hughes to be a high risk.
d. Totality of the Evidence.
In this case, the sentencing court set forth its reasons for imposition of Hughes‟ sentence,
thus providing a record for review. In addition to the court‟s comments discussed above, the
sentencing court cited other evidence in the record in consideration of the I.C. § 19-2521(2)
factors and determined that Hughes “acted to help [him]self and no one else and cared little
about the results on others;” that there were “no grounds which excuse or justify [Hughes‟]
behavior in this case, none whatsoever;” that Hughes “took advantage of [P.M.‟s] weaknesses;”
that Hughes had “stolen a young woman‟s childhood and [the court didn‟t] think there [was] any
way [he] could give that back;” and, that Hughes‟ conduct with P.M. was not “something where
[he] gave in to a moment‟s worth of weakness or a stroke of bad judgment . . . [because it] was
over and over and over.” Regarding whether Hughes‟ character and attitude indicated that the
commission of another crime was likely, I.C. § 19-2521(2)(i), the court stated, “I think frankly
that if left unsupervised in this community, or even supervised on probation, the likelihood that
you would commit additional crimes is highly probable.” The court ultimately determined that
“the long and short of it is that I find that none of the factors which would favor probation, or for
that matter retained jurisdiction as outlined in subsection (2) of Idaho Code Section 19-2521
apply here.”
The sentencing court cited other evidence in the record in consideration of the I.C. § 19-
2521(1) factors stating, “I am to determine whether a lesser sentence will depreciate the
seriousness of the defendant‟s crime. I think that any lesser sentence than I have determined in
this case will do that.” The court also stated, regarding the appropriateness of punishment and
deterrence, that “[imprisonment] is the only potential form of deterrent and it is the only probable

28
deterrent for others who would be so inclined.” The court‟s determination as to future
dangerousness was certainly based not only on the facts of the instant offense, but also on the
existence of other victims. As set forth above, the evidence of the existence of other victims
most important to the sentencing court was Hughes‟ sexually explicit photographs of Z.M. and
A.G, as well as a passing reference to C.C., the knowledge of which did not come from
admissions made by Hughes in the PSE.10 The court concluded that the PSE evaluator was
wrong in the conclusion that Hughes was a moderate risk to re-offend, when the court believed
that he was a high risk. Thus, the court concluded that, based upon facts and conclusions outside
the PSE and in consideration of all of the factors, imprisonment was appropriate.
Hughes pled guilty to ten of twenty-one original counts in exchange for dismissal of the
remaining counts. In his plea, Hughes admitted to engaging in a sexual relationship with P.M.
over the course of approximately six months. During that span of time, Hughes repeatedly raped
and engaged in acts of sexual abuse of P.M., made pornography available to P.M., and had in his
possession photographs and videos of P.M. where she was shown to be naked, exposing her
genitalia, and engaging in sexual conduct.
After weighing the sentencing factors as discussed above, immediately prior to imposing
sentence, the court stated:
There are several other things that I want to say to you. The first of those
things is that I think you genuinely are remorseful, but as I said earlier, I‟m not
sure it‟s for what you did or for being caught at what you did. I guess neither one
of those decisions is particularly important to me because I think irrespective of
the level of your remorse, sir, your conduct speaks louder than any words that you
could possibly say to me today.
You have engaged in what you characterize as a sin. It‟s more accurate to
say, sir, that it‟s a violent, dangerous crime. You say that you wish to recompense
the community. There is no way to recompense the community for what you’ve
done here.
[Defense counsel] indicates that you aren‟t a monster but a man. I agree
you‟re a man, but I‟m not sure you‟re not a monster, sir. Grown men don‟t
engage in the kind of conduct you engaged in in this case. They just don‟t do it

10
We note that the PSE does not mention Z.M. or A.G. specifically, which information may
have been important to the risk category determination. In addition, the determination from the
polygraph that Hughes was not honest when he denied the existence of other victims was clearly
supported in the record by the pornographic photographs of Z.M. and A.G. on Hughes‟
computer.

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 unless there is something very evil down deep inside and I think that‟s maybe
what I‟m looking at, sir.
I think that you are a person who is manipulative. I think that you are
skillful at it. I think you used those skills to take advantage of someone who was
vulnerable. And I think that in order to impose a fair judgment in this case I must
impose a lengthy term of imprisonment.

(Emphasis added.) The court‟s focus in these comments was on the facts of this case, without
reference to the PSE or other victims. The sentencing court relied very heavily upon the totality
of the evidence, as opposed to any admissions and/or conclusions from such admissions in the
PSE.
Hughes pled guilty to five counts of rape, each count punishable by a maximum of life;
two counts of sexual battery of a minor, each count punishable by a maximum of fifteen years;
one count of disseminating material harmful to minors, punishable by a maximum of one year;
and two counts of possession of sexually exploitive materials, each count punishable by a
maximum of five years. The court sentenced Hughes to an indeterminate life term with twenty-
five years determinate.
Thus, the question before this Court is whether there is a reasonable probability that,
absent the PSE, the outcome of the proceeding (sentence) would have been more favorable to
Hughes. We have considered the extent and character of any admissions by Hughes and
conclusions based thereon in the PSE, the extent of the sentencing court‟s reliance on the PSE
which can be demonstrated from the record, and the totality of the evidence before the
sentencing court. From this review, we cannot say that there is a reasonable probability that,
absent the PSE, Hughes would have received a more favorable sentence. Hughes has failed to
demonstrate prejudice in satisfaction of the second prong of the Strickland standard. Therefore,
the district court‟s dismissal of Hughes‟ claim of ineffective assistance of counsel for counsel‟s
failure to advise Hughes regarding his rights prior to the PSE is affirmed.
III.
CONCLUSION
Hughes has failed to meet his burden of showing that his counsel provided ineffective
assistance by failing to be present at the PSE, failing to move to suppress the PSE, failing to
ensure that Hughes was read his Miranda rights prior to the PSI, and failing to secure an
independent psychiatric evaluation. Hughes has failed to meet his burden of showing prejudice

30
resulting from his counsel‟s ineffective assistance in failing to advise him of his rights prior to
the PSE. The district court‟s order summarily dismissing Hughes‟ application of post-conviction
relief is affirmed.
Chief Judge LANSING and Judge Pro Tem PERRY, CONCUR.

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