Andrus v. State

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 45297

LAWRENCE SCOTT ANDRUS, )
) Filed: January 9, 2019
Petitioner-Appellant, )
) Karel A. Lehrman, Clerk
v. )
)
STATE OF IDAHO, )
)
Respondent. )
)

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
Falls County. Hon. John K. Butler, District Judge.

Order denying Idaho Rule of Civil Procedure 60(b) motion for relief from
judgment, reversed; and case remanded.

Fyffe Law; Robyn A. Fyffe, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
Attorney General, Boise, for respondent.
________________________________________________

HUSKEY, Judge
Lawrence Scott Andrus appeals from the district court’s order denying his Idaho Rule of
Civil Procedure 60(b) motion following the summary dismissal of his petition for post-
conviction relief. Andrus claims that under the circumstances, he has established unique and
compelling circumstances that demonstrate the district court erred when it denied the
I.R.C.P. 60(b) motion. We reverse the district court’s order and remand the case for further
proceedings consistent with this opinion.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In the underlying criminal case, Andrus was charged with felony driving under the
influence of alcohol. After trial, the jury returned a guilty verdict. Andrus filed an Idaho
Criminal Rule 35 motion for a reduction of his sentence, which was denied by the district court.

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Andrus appealed and this Court affirmed the judgment of conviction and the sentence. State v.
Andrus, Docket No. 42878 (Ct. App. Jan. 14, 2016) (unpublished). Thereafter, Andrus filed a
petition for post-conviction relief and requested that counsel be appointed. Initially, the district
court appointed the Twin Falls County Public Defender’s Office. However, due to a conflict,
that office was unable to represent Andrus and needed to provide conflict counsel. These
circumstances made it unlikely that Andrus, with the assistance of counsel, could comply with
the sixty-day deadline for amending the petition as set forth in the district court’s scheduling
order. Consequently, the public defender’s office requested an extension of time to amend the
petition. The district court granted the extension and ordered that any amended petition be filed
by May 31, 2016.
Conflict counsel was appointed on April 21, 2016. The State filed its answer on June 15,
2016. On July 11, 2016, the district court filed a notice of intent to dismiss the initial petition
pursuant to Idaho Code § 19-4906(b). As of July 11, 2016, no documents had been filed by
appointed counsel. However, on July 26, 2016, conflict counsel requested an extension of time
to amend the petition. The motion, in its entirety, read as follows:
COMES NOW [conflict counsel], counsel for the Petitioner, LAWRENCE
SCOTT ANDRUS, and hereby requests an Extension of Time in which to file a
response to file a response in the Notice of Dismissal. The basis for this Motion
is that the counsel of the Petitioner has not been able to speak with the Petitioner
and obtain further information from him. The Petitioners schedule has not
allowed him sufficient time to allow him to respond. Counselor request an
additional 30 days.
Conflict counsel provided no explanation of the actions he took to contact Andrus or why he had
not spoken to his client in more than three months. Also on July 26, 2016, counsel sent what
appears to be the first and only letter to Andrus. 1 The district court granted Andrus a thirty-day
extension. However, the record reflects that counsel filed no other motions, documents,
amendments, or pleadings in the case. Andrus failed to reply within the thirty-day extension and
thereafter, the district court dismissed Andrus’s petition for post-conviction relief with prejudice.
Andrus timely appealed and this Court, on the record before it, affirmed the dismissal of the
petition. Andrus v. State, Docket No. 44686 (Ct. App. Jan. 24, 2018) (unpublished).

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Counsel represented in his motion for extension of time that he had been unable to speak
with him; Andrus claims counsel made no effort to speak with him prior to filing the motion.
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Andrus then filed a request in the district court for a copy of the register of actions. Next,
Andrus filed a motion seeking relief pursuant to I.R.C.P. 60(b)(6). He alleged that aside from
counsel notifying him that he had filed a motion for extension of time, Andrus had no written or
oral communication with or from his appointed post-conviction counsel. He further asserted his
appointed counsel filed no motions, amendments, or other documents on behalf of Andrus,
despite Andrus having sent two letters requesting investigation and/or asking questions about the
case. Andrus asserted that this inaction constituted a complete absence of meaningful
representation and that Andrus relied on his counsel’s representation to Andrus’s detriment.
Andrus further argued that because he could not file a successive petition, relief was warranted
under I.R.C.P. 60(b)(6). Post-conviction counsel was not listed on the certificate of service for
the I.R.C.P. 60(b) motion.
The State objected to the motion, arguing that the district court no longer had jurisdiction
because the case was already on appeal, Andrus could not file documents pro se when he was
represented by counsel, and the motion was not filed within six months of the entry of judgment.
Post-conviction counsel was listed on the certificate of service for the objection, thus it appears
that counsel was aware that such a motion had been filed.
The district court determined it had jurisdiction to hear the I.R.C.P. 60(b) motion
pursuant to Idaho Appellate Rule 13(b)(6), Andrus was not prevented from filing a motion
although counsel had been appointed, the motion need only be filed within a reasonable time,
and the State did not provide any argument that the time was unreasonable. Nonetheless, the
district court denied Andrus’s motion, holding that Andrus had not established a unique and
compelling circumstance justifying relief because the district court had dismissed the petition on
its merits and because Andrus had not shown by way of affidavit or otherwise that there were
any amendments to the petition or additional facts or arguments that would have prevented
summary dismissal.
Andrus timely appealed.
II.
STANDARD OF REVIEW
The decision to grant or deny a motion under I.R.C.P. 60(b) is committed to the
discretion of the trial court. Pullin v. City of Kimberly, 100 Idaho 34, 36, 592 P.2d 849, 851
(1979). When a trial court’s discretionary decision is reviewed on appeal, the appellate court

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conducts a multi-tiered inquiry to determine whether the lower court correctly perceived the
issue as one of discretion, acted within the boundaries of such discretion, acted consistently with
any legal standards applicable to the specific choices before it, and reached its decision by an
exercise of reason. Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018).
A determination under I.R.C.P. 60(b) turns largely on questions of fact to be determined
by the trial court. Waller v. State, Dep’t of Health and Welfare, 146 Idaho 234, 237, 192 P.3d
1058, 1061 (2008). Those factual findings will be upheld unless they are clearly erroneous. Id.
at 238, 192 P.3d at 1062. If the trial court applies the facts in a logical manner to the criteria set
forth in I.R.C.P. 60(b), while keeping in mind the policy favoring relief in doubtful cases, the
court will be deemed to have acted within its discretion. Waller, 146 Idaho at 237-38, 192 P.3d
at 1061-62.
III.
ANALYSIS
Here, the district court correctly perceived the grant or denial of an I.R.C.P. 60(b) motion
as discretionary. However, the district court did not act consistently with the relevant legal
standards when it determined that the holding of Eby v. State, 148 Idaho 731, 228 P.3d 998
(2010) was inapplicable.
The Court has noticed a significant increase in I.R.C.P. 60(b) motions in post-conviction
cases following the Idaho Supreme Court’s opinion in Murphy v. State, 156 Idaho 389, 327 P.3d
365 (2014). In Murphy, the Court addressed Murphy’s appeal from the dismissal of a successive
petition for post-conviction relief, as well as a denial of her I.R.C.P. 60(b) motion. Murphy, 156
Idaho at 390, 327 P.3d at 366. The Murphy opinion addressed the issue of successive post-
conviction petitions. Id. Relevant to this case is the Court’s holding that a claim of ineffective
assistance of post-conviction counsel was no longer a sufficient reason under I.C. § 19-4908 to
allow Murphy to file a successive petition. Murphy, 156 Idaho at 391, 327 P.3d at 367. The
Court’s analysis was as follows:
A request for appointment of counsel in a post-conviction proceeding is governed
by I.C. § 19-4904, which provides that in proceedings under the UPCPA, a court-
appointed attorney “may be made available” to an applicant who is unable to pay
the costs of representation. I.C. § 19-4904; Charboneau v. State, 140 Idaho 789,
792, 102 P.3d 1108, 1111 (2004). The decision to grant or deny a request for
court-appointed counsel lies within the discretion of the trial court. Eby v. State,
148 Idaho 731, 738, 228 P.3d 998, 1005 (2010). The standard for determining

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whether to appoint counsel for an indigent petitioner in a post-conviction
proceeding is whether the petition alleges facts showing the possibility of a valid
claim. Workman v. State, 144 Idaho 518, 529, 164 P.3d 798, 809 (2007). “In
deciding whether the pro se petition raises the possibility of a valid claim, the trial
court should consider whether the facts alleged are such that a reasonable person
with adequate means would be willing to retain counsel to conduct a further
investigation into the claims.” Swader v. State, 143 Idaho 651, 654, 152 P.3d 12,
15 (2007). Although “the petitioner is not entitled to have counsel appointed in
order to search the record for possible nonfrivolous claims,” counsel should be
appointed if the facts alleged raise the possibility of a valid claim.
Murphy, 156 Idaho at 392-93, 327 P.3d at 368-69. The Court noted there was no federal
constitutional right to counsel in state post-conviction cases. See Coleman v. Thompson, 501
U.S. 722, 752 (1991) (“a petitioner cannot claim constitutionally ineffective assistance of
counsel in such proceedings”); Murphy, 156 Idaho at 394, 327 P.3d at 370. The Court also noted
that appointment of counsel in collateral review proceedings in Idaho is discretionary. Murphy,
156 Idaho at 395, 327 P.3d at 371. Consequently, the Court held that I.C. § 19-4904 does not
create a statutory right to post-conviction counsel. Murphy, 156 Idaho at 394, 327 P.3d at 370.
In reaching this conclusion, the Court explicitly overruled Palmer v. Dermitt, 102 Idaho
591, 635 P.2d 955 (1981). As a result, in cases where post-conviction petitioners have been
appointed counsel but counsel provides less than ideal representation (at best) and unacceptable
representation (at worst), the petitioner no longer has the ability to attempt a remedy through a
successive post-conviction petition. Instead, petitioners have utilized I.R.C.P. 60(b)(6) as a
procedural mechanism to challenge the inactivity of counsel to secure meaningful review and
development of their post-conviction petition claims.
Andrus utilized that mechanism in this case and filed an I.R.C.P. 60(b)(6) motion to
allege a complete lack of any representation in his post-conviction case. In Eby, the Idaho
Supreme Court held that the “complete absence of meaningful representation” in a post-
conviction action “may present the ‘unique and compelling circumstances’ in which
I.R.C.P. 60(b)(6) relief may well be warranted.” Eby, 148 Idaho at 737, 228 P.3d at 1004. In its
order denying Andrus’s I.R.C.P. 60(b)(6) motion, the district court quoted the following passage
from the Eby opinion:
We recognize and reiterate today that there is no right to effective
assistance of counsel in post-conviction cases. We likewise recognize that “this
Court has infrequently found reason to grant relief under I.R.C.P. 60(b)(6).” Berg
v. Kendall, 147 Idaho 571, 576 n.7, 212 P.3d 1001, 1006 n.7 (2009). However, we
are also cognizant that the Uniform Post–Conviction Procedure Act is “the
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exclusive means for challenging the validity of a conviction or sentence” other
than by direct appeal. Rhoades v. State, 148 Idaho 215, 217, 220 P.3d 571, 573
(2009) (quoting Hays v. State, 132 Idaho 516, 519, 975 P.2d 1181, 1184
(Ct.App.1999)). Given the unique status of a post-conviction proceeding,
and given the complete absence of meaningful representation in the only available
proceeding for Eby to advance constitutional challenges to his conviction and
sentence, we conclude that this case may present the “unique and compelling
circumstances” in which I.R.C.P. 60(b)(6) relief may well be warranted.
Eby, 148 Idaho at 737, 228 P.3d at 1004. Despite this language, the district court distinguished
Andrus’s case from Eby, reasoning that:
In both Eby and Berg 2 there was no opportunity for appellate review of the
merits of the petition or complaint, since dismissal was not based on the merits of
the claims asserted. In the case of petitioner herein, the petition for post-
conviction relief with or without appointed counsel’s participation was dismissed
on its merits or lack of merit and is presently the subject of a pending appeal.
The petitioner has not made any showing by way of affidavit or otherwise
that there were any amendments to the petition that would have prevented
summary dismissal or that there were any additional facts or legal authority that
appointed counsel could have presented or argued that would have prevented
summary dismissal. The petitioner has made no cogent argument of a valid claim
that could have withstood summary dismissal on the merits. Therefore, the
petitioner has failed to make a proper showing for relief pursuant to
I.R.C.P. 60(b)(6).
The district court’s analysis was not consistent with the applicable legal standards; consequently,
the district court abused its discretion.
We read Eby to apply in circumstances where the record reveals a complete absence of
meaningful representation. Eby recognized the competing policy concerns as articulated by the
Court. On the one hand, the Court recognized that the Uniform Post-Conviction Procedure Act
is the exclusive means for challenging the validity of a conviction or sentence and that if counsel
is appointed, counsel is expected to provide meaningful representation. On the other hand, the
Court was clear that an I.R.C.P. 60(b) motion should be carefully evaluated so that the narrow
circumstance in which it applies does not become the rule instead of the exception. Thus, a
petitioner does not need to establish “years of shocking or disgraceful neglect” as occurred in
Eby to avail himself of I.R.C.P. 60(b) relief but neither is that relief available where counsel
performs some duties such that the claims have been reviewed or counsel participates by
pleading or appearance. Here, the district court did not address whether there had been a lack of

2
Berg v. Kendall, 147 Idaho 571, 121 P.3d 1001 (2009).
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meaningful representation because the court believed it had analyzed the claims on the merits. It
did not.
The district court could not evaluate the claims on the merits without first determining
whether the initial claims were the claims the petitioner, after having had the assistance of
counsel, wished to pursue. Although the appointment of counsel is discretionary, counsel
“should” be appointed when there is the possibility of a valid claim; failure to do so is an abuse
of discretion. Murphy, 156 Idaho at 392-93, 327 P.3d at 368-69. This is because:
Although the petitioner is not entitled to have counsel appointed in order to search
the record for possible nonfrivolous claims, he should be provided with a
meaningful opportunity to supplement the record . . . prior to the dismissal of his
petition where, as here, he has alleged facts supporting some elements of a valid
claim.
Charboneau, 140 Idaho at 793, 102 P.3d at 1112. Where counsel has been appointed, it is error
to dismiss those same claims “on the merits” when there is an allegation, supported by some
evidence, of the complete absence of any assistance of counsel to review, develop, or amend
those claims. In this case, Andrus alleged the potential merits were never explored, developed,
investigated, or amended even after counsel was on notice of the deficiencies of the claims.
Andrus alleged counsel provided no assistance in evaluating the deficiencies or responding to the
notice of intent to dismiss, resulting in potentially valid claims being dismissed before any
validity could be established. Andrus further claimed counsel had never contacted him except
for notifying him that he filed a motion for extension of time. Support for Andrus’s claims can
be found in the record--it is devoid of any pleadings or filings by appointed counsel except for
the initial request for an extension of time to file an amended petition.
The district court did not act consistently with the applicable legal standards when
determining this case was distinguishable from Eby on the ground that the claims were reviewed
on the merits because Andrus’s claims were reviewed only as initially pleaded. Like in Eby,
counsel was appointed to help Andrus investigate, refine, or amend existing claims. As alleged
by Andrus, because counsel did nothing, Andrus was not able to meaningfully respond to the
alleged deficiencies outlined in the notice of intent to dismiss. Moreover, without counsel
participating in the case, the merits of each claim were not explored or developed by counsel nor
did Andrus have the opportunity to investigate or amend his claims; thus, the apparent complete
lack of representation may have prevented Andrus from meaningfully participating in the only
proceeding available to address his post-conviction claims.
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Additionally, the district court erred in denying Andrus’s I.R.C.P. 60(b)(6) motion on the
grounds that Andrus had not “made any showing by way of affidavit or otherwise that there were
any amendments to the petition that would have prevented summary dismissal or that there were
any additional facts or legal authority that appointed counsel could have presented or argued that
would have prevented summary dismissal.” These are precisely the types of activities for which
counsel was appointed. To deny Andrus’s motion because Andrus did not do what his appointed
counsel was appointed to do is contrary to the holding in Eby and further demonstrates the
prejudice associated with a lack of meaningful representation.
In cases where counsel has been appointed, summary dismissal of the claims is not “on
the merits” when the record reveals counsel has not meaningfully participated in the proceedings.
Consequently, in the context of a post-conviction case, when the petitioner alleges a complete
lack of meaningful representation in an I.R.C.P. 60(b)(6) motion and the record does not dispel
that claim, the district court abuses its discretion in dismissing the claims on the merits without
establishing a record of some meaningful representation on those claims. We recognize that the
court record may not reflect the work of counsel that does not result in a pleading or hearing.
However, in the circumstances where the record reflects no activity of counsel that a court could
determine as meaningful, the district court must either establish the necessary record or grant
I.R.C.P. 60(b)(6) relief.
Under the circumstances described above, the denial of Andrus’s I.R.C.P. 60(b)(6)
motion was an abuse of discretion. As this is a matter of discretion for the trial court, we reverse
and remand the case to the trial court. “When the discretion exercised by a trial court is affected
by an error of law, our role is to note the error made and remand the case for appropriate
findings.” Gem State Ins. Co. v. Hutchison, 145 Idaho 10, 15-16, 175 P.3d 172, 177-78 (2007).
IV.
CONCLUSION
Based upon the record in this case, the district court erred in denying Andrus’s
I.R.C.P. 60(b)(6) motion. We reverse the district court’s order denying relief from judgment and
remand the case for further proceedings consistent with this opinion.
Chief Judge GRATTON and Judge LORELLO CONCUR.

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