1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38791

KIRK JULLIARD GOSCH , Petitioner-Appellant ,

v.

STATE OF IDAHO , Respondent

. ) ) ) ) ) ) ) ) ) ) ) ) ) 2012 Opinion No. 47 S

Filed: December 31, 2012
Stephen W. Kenyon, Clerk

SUBSTITUTE OPINION THE COURT ’S PRIOR OPINION DATED SEPTEMBER 5, 2012, IS HEREBY WITHDRAWN

Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Benjamin R. Simpson , District Judge.
Judgment dismissing petition for post

- conviction relief, vacated and remanded

.
Sara B. Thomas, State Appellate Public Defender; Sarah E. Tompkins, Deputy Appellate Public Defender, Boise, for appellant. Sarah E. Tompkins argued.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen , Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

________________________________________________ MELANSON, Judge Kirk Julliard Gosch appeals from the district court’s judgment dismissing his petition for post

- conviction relief. For the reasons set forth below, we vacate and remand.
I.
FACTS AND PROCEDURE Gosch was found guilty by a jury of manufacturing a controlled substance, I.C. § 37

- 2732(a); possession of marijuana with in tent to deliver, I.C. § 37

- 2732(a); and possession of marijuana in excess of three ounces, I.C. § 37

- 2732(e )

. Gosch filed a petition for post

- conviction
relief
, asserting that he received ineffective assistance of counsel because his trial counsel provide d erroneous advice as to the potential consequences of filing a n appeal

. At an evidentiary hearing on this claim, Gosch asserted that he also received ineffective assistance of counsel2 because he asked counsel to file an appeal in his underlying criminal case, but no appeal was
ever filed. The state did not object to the presentation of this addi tional claim at the evidentiary hearing , the parties argued the merits, and the district court considered the claim. In the district court’s findings of fact and conclusions of law in support of the judgment dismissing Gosch’s petition, the district court determined that Gosch’s claims of ineffective assistance of counsel
failed. Gosch appeals.
II.
ANALYSIS
Gosch argues that the district court erred when it dismissed his petition for post

conviction relief because he demonstrated that he received ineffective assistance of counsel based upon his trial counsel’s failure to file a notice of appeal in his underlying criminal case despite Gosch’s unequivocal request that counsel do so. 1 Thus, Gosch asserts that his case must be remanded to the district court for entry of an amended judgment of conviction to allow him to perfect a timely appeal.
Post

- conviction proce edings are civil in nature and therefore the petitioner must prove the allegations by a preponderance of the evidence. McKinney v. State , 133 Idaho 695, 699

- 700, 992 P.2d 144, 148

- 49 (1999). On review, the appellate court will not disturb the lower court ’ s factual findings unless the factual findings are clearly erroneous. Id. at 700, 992 P.2d at 149

. The credibility of the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence are all matters solely withi n the province of the district court. Peterson
v. State , 139 Idaho 95, 97, 73 P.3d 108, 110 (Ct. App. 2003)

. The appellate court exercises free
review of the district court ’ s application of the relevant law to the facts. Dunlap v. State , 141 Idaho 50, 5 6, 106 P.3d 376, 382 (2004). A claim of ineffective assistance of counsel may properly be brought under the 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 assi stance of counsel claim, the defendant must show that the attorney’s performance was deficient and that the defendant was prejudiced by the

1 Gosch does not challenge the district court’s determination that Gosch’s claim that he received ineffective assistance of counsel because his trial counsel provided erroneous advice as to the potential consequences of filing an appeal failed.3 deficiency. Strickland v. Washington , 466 U.S. 668, 687

- 88 (1984); Hassett v. State , 127 Idaho 313, 316, 900 P.2d 2 21, 224 (Ct. App. 1995). To establish a deficienc y, the petitioner has the burden of showing that the attorney’s representation fell below an objective standard of
reasonableness. Aragon v. State , 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). To es tab lish prejudice, the petitioner must show a reasonable probability that, but for the attorney’s deficient performance, the outcome of the trial would have been different. Id. at 761, 760 P.2d at 1177.
T he district court found that , after the jury rendered its verdict, Gosch left the courthouse
with his counsel in a confused and stressful state and informed counsel that he wanted to “ appeal everything

. ” The district court also found that, upon making such request, counsel directed
Gosch to contact counsel’s office the next day by scheduling an appointment because counsel
wanted to allow Gosch time “ to digest the verdict
, and more clearly articulate exactly what he wanted to appeal. ” The district court found that , thereafter, Gosch never scheduled an appointment and never spoke with counsel regarding an appeal . Additionally, the district court
found that counsel made several unsuccessful attempts to contact Gosch following his request to

“ appeal everything
, ” including an attempt to make the public defender’s investigator available to Gosch prior to his sentencing. The district court also found that Gosch was notified at sentencing of his right to appeal.
T he district court correctly noted that, pursuant to Beasley v. State , 126 Id aho 356, 361

- 62, 883 P.2d 714, 719

- 20 (Ct. App. 1994)
, a defendant who proves that he or she was denied an appeal because counsel did not file an appeal as requested states a meritorious claim for
ineffective assistance of counsel because the loss of the right to appeal is sufficient prejudice, in and of itself, to support such claim. In that case, Beasley filed a petition for post

- conviction
relief
, asserting he received ineffective assistance of counsel because counsel failed to file an appeal from Beasley’s judgment of conviction

. Beasley and his trial counsel testified at the hearing on his petition

. Following the hearing, the district court denied reli ef and dismissed the petition , concluding that Beasley failed on his claim to show deficient performance by counsel or prejudice sufficient to satisfy the two

- pronged standard for ineffective assistance derived from
Strickland

. Beasley , 126 Idaho at 35 9, 883 P.2d at 717. On appeal, this Court noted that it was undisputed that Beasley advised his counsel of his desire to appeal his conviction and that the record clearly showed that counsel understood
Beasl e y desired to appeal. We determined that the loss of the opportunity to appeal due to4 counsel’s failure to file an appeal w hen a criminal defendant requested that counsel do so was sufficient prejudice to support a claim of ineffective assistance of counsel. Beasley
, 126 Idaho at 362, 883 P.2d at 720. H aving determined that Beasley ’ s counsel either neglected or refused to
fi le an appeal despite Beasley ’ s request, we conclude d that deficient performance of counsel deprived Beasley of his opportunity to appeal and that prejudice was presumed from such performance. Id. Accordingly, Beasley’s judgment of conviction had to be vacated and
reentered so Beasley could perfect a timely appeal. Id. Here, at the hearing on Gosch’s petition, the district court stated: I think this case is distinguishable from Beasley in the sense that Mr. Gosch was afforded an opportunity to discuss an appeal. He was invited to make an appointment to discuss it. And he failed to follow up on multiple opportunities to do so. The Court finds that based upon the distinguishing facts that he did not make a r equest after the judgment was filed, he did not make an appointment after he was invited to do so, that the Beasley rule doesn’t apply. There was no binding request for an appeal to be filed. Accordingly, the petition is denied.

In the written conclusio ns of law
, the district court stated that Beasley was distinguishable from
Gosch’s case “ because Beasley requested an appeal of his conviction, and the record clearly showed that trial counsel, and the public defender who assumed representation of Beasley after entry of his judgment of conviction, understood that Beasl e y desired to appeal. ” Relying upon Sanders v. State , 117 Idaho 939, 792 P.2d 964 (Ct. App. 1990); State v.
Dillard , 110 Idaho 834, 718 P.2d 1272 (Ct. App. 1986); and Flores v. State , 104 I daho 191 , 657 P.2d 488 (Ct. App. 1983)
, the district court properly concluded that its decision should be based

on whether Gosch ’s desire to appeal was adequately communicated to his counsel and whether
counsel ’s failure to file an appeal result ed from deficient performance that deprived Gosch of the opportunity to appeal. The district court then reiterated that, in this case, Gosch made a single request to “ appeal everything” during a time of confusion and stress directly after the jury
rendere d its verdict and before a sentence or judgment had been entered. The district court again
noted that
, while Gosch’s counsel directed him to set up an appointment to discuss a potential appeal, Gosch did not thereafter contact counsel or respond t o attemp ted correspondence from counsel and never again evidenced a desire to appeal. The district court determined that Gosch’s request to appeal was not ignored by counsel but
, rather, Gosch ignored counsel. The district

court also determined that it was not c ounsel ’s inaction that caused Gosch to not appeal, but5 Gosch’s own inaction that resulted in failure to file an appeal. Thus, the district court concluded
that Gosch’s request was not fully and fairly communicated to counsel s o as to warrant a conclusion that it was counsel ’ s ineffective assistance that deprived Gosch of the opportunity to appeal. The district court finally concluded that counsel reasonably believed Gosch had abandoned any desire to file an appeal because Gosch ignored counsel ’ s repeated attempts to communicate with Gosch regarding an appeal. Accordingly, the district court entered a judgment dismissing Gosch’s petition.
I t is undisputed that
, after the jury rendered its verdict
, Gosch requested that counsel

“ appeal everything.” It is also undisputed that , thereafter, Gosch’s counsel never filed an appeal.
The fact that Gosch requested that his counsel “ appeal everything” after the jury rendered its verdict as opposed to after s entencing and entry of judgment is of no consequence and d oes not distinguish this case from Baesley. What is of consequence is that Gosch instructed his counsel to appeal. Indeed, the United States Supreme Court has long held that: [A] lawyer who disregards specific instructions from the defendant to file a no tice of appeal acts in a manner that is professionally unreasonable. See Rodriquez v. United States , 395 U.S. 327, 89 S. Ct. 1715, 23 L. Ed. 2d 340 (1969); cf. Peguero v. United States , 526 U.S. 23, 28, 119 S. Ct. 961, 143 L. Ed. 2d 18 (1999) (“[W]hen cou nsel fails to file a requested appeal, a defendant is entitled to [a new] appeal without showing that his appeal would likely have had merit”). This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to fi le the necessary notice. Counsel’s failure to do so cannot be considered a strategic decision; filing a notice of appeal is a purely ministerial task , and the failure to file reflects inattention to the defendant’s wishes.

Roe v. Flores

- Ortega , 528 U.S . 470, 477 (2000) (emphasis added). Gosch has cited no authority to support a ruling that a request to file an appeal must be made after entry of judgment in order to sustain a claim of deficient performance when counsel fails to file an appeal. We concl ude that Gosch’s request made after return of the verdict was sufficient to impose a duty o n counsel to file an appeal. 2 We need not address whether an appeal filed prior to entry of judgment would have invoked appellate jurisdiction under Idaho Appellate Rul e 17(e)(2) as argued by Gosch. In

2 We do not address a request to appeal a conviction made prior to the jury reaching a verdict.6 the instant situation, absent a withdrawal of the request, Gosch’s counsel was duty

- bound to file a notice of appeal before the time to file expired.
The district court also erred in ruling that Beasley does not app ly in this case because the
record does not show Gosch’s counsel did not understand that Gosch desired t o appeal . At the hearing on Gosch’s petition, Gosch’s counsel testified that, after the jury rendered its verdict and
counsel left the courthouse with Gosch, he requested that counsel “ appeal everything.” Thus, the
record shows that Gosch’s counsel understood that Gosch des ired to ap peal. Similarly , the district court erred in ruling that Gosch’s request to file an appeal was not fully and fairly comm unicated to counsel because , after making such request, Gosch did not
sched ule an appointment with counsel as directed and did not respond to counsel’s attempted correspondence prior to sentencing to discuss a potential appeal. This case is unlike Sanders
where this Court affirmed the district court’s dismissal of Sanders’ petition after the district court, when faced with conflicting evidence about whether Sanders ever requested an appeal, made a credibility determination and concluded that Sanders failed to communicate his de sire to appeal to counsel. Sanders , 117 Idaho at 940

- 41, 792 P.2d at 965

- 66. Here, as noted above, it is undisputed that
, after the jury rendered its verdict
, Gosch requested that his counsel “ appeal everything ” and the record shows that counsel understood that Gosch desired to appeal.
W hile the d istrict court concluded that Gosch’s failure to schedule an appointment with
counsel as directed and failure to respond to correspondence from counsel after he requested that
counsel “ appeal everything” excused counsel from filing an appeal, such conclusion goes against this Court’s holding in Beasley

. Specifically , we held that if cou nsel either neglects or refuses to fil e an appeal despite a criminal defendant’s request to do so
, cou nsel is deficient. Beasley , 126 Idaho at 362, 883 P.2d at 720. W hether counsel was able to make contact with Gosch after the jury rendered its verdict and Gosch requested that counsel “ appeal everything,” absent an express withdrawal of such request, cou nsel was required to file an appeal

. 3

3 We also note that Gosch appeared at sentencing with counsel. Gosch’s counsel testified at the hearing on Gosch’s petition for post

- conviction relief that, just prior to sentencing, counsel reviewed the presentence investigation report with Gosch but did not discuss the possibil ity of an appeal. Further, Gosch’s counsel testified that she did not discuss the possibility of an appea l with Gosch after sentencing and entry of the judgment of conviction.7 The district court’s conclusion that lack of contact with Gosch after he requested that
counsel “ appeal everything” excused counsel from filing an appeal is also inconsistent with the holding of the U nited States Supreme Court in Roe v. Flores

- Ortega that a defendant reasonably relies on counsel to file an appeal after instructing counsel to do so and that filing the notice of appeal is a purely ministerial task. Additionally, t o require that, after a defendant makes a

spec ific request that counsel file an appeal after the jury renders its verdict , the defendant must schedule an appointment with counsel if directed to do so or respond to attempted correspondence from counsel before such request will be honored permits counsel to condition the filing of an appeal upon such requirements. This goes against precedent indicating that the decision whether to prosecute an appeal rests with the defendant. See Mata v. State , 124 Idaho 588, 593, 861 P.2d 1253, 1258 (Ct. App. 1993)

. Again, i t is undisputed that in this case
, after the jury rendered its verdict in Gosch ’s underlying criminal case
, Gosch requested that counsel “ appeal everything.” The record shows
that Gosch’s counsel understood that Gosch desired to appeal and, thereafter, never filed an appeal. We hold that, when a defendant makes an unequivocal request that counsel file an appeal after the jury renders its verdict, counsel has an obligation to file such appeal unless the
defendant there after expressly communicates to counsel that he or she no longer wishes to pursue the appeal. Here, t here is no e vidence tha t Gosch did so

. 4 Thus, because Gosch’s coun sel did

not file an appeal despite G osch’s unequivocal request that counsel do so after the jury rendered
its verdict and Gosch did not expressly withdraw his request , we conclude that deficient performance of counsel deprived Gosch of the opportunity to appeal and that prejudice is presumed from such performance. Therefore, t he district c o urt erred by dismissing Gosch’s petition for post

- conviction relief

. Gosch ’s judgment of conviction must be amended to allow
Gosch to perfect a timely appeal.
III.
CONCLUSION
Gosch demonstrated that he received ineffective assistance of counsel based upon his counsel’s failure to file a notice of appeal in his underlying criminal case

. Accordingly, we

4 We recognize that, after an appeal is filed, an appellant might abandon h is or her desire to prosecute an appeal and that, presumably, such abandonment could be inferred from conduct such as failure to communicate with counsel. We need not decide that question here.8 vacate the district court ’s judgment dismissing Gosch’s petition for post

- convict ion relief and
remand to the dis trict court for e ntry of an amended judgment of conviction consistent with this opinion. Costs
, but not attorney fees
, are a warded to Gosch as the prevailing party on appeal. Chief Judge GRATTON and Judge GUTIERREZ, CONCUR

.