James Arthur Cherniwchan v. State Idaho

This appeal is from the judgment of the district court denying, without an evidentiary hearing, appellant's application for post-conviction relief. The judgment of the district court is reversed and the case is remanded. Petitioner-appellant James A. Cherniwchan pleaded guilty to charges of second degree kidnapping and was sentenced to twenty-five years imprisonment. Appellant then applied for post-conviction relief, alleging that he had been denied effective assistance of counsel at his sentencing hearing. When the state failed to respond to the post-conviction relief application, appellant moved for summary Disposition of the application pursuant to I.C. § 19-4906(c). The district court summarily dismissed the application based on the sentencing hearing transcript, the application for post-conviction relief and the affidavits of appellant and appellant's counsel. Appellant appeals from the denial of post-conviction relief pursuant to I.C. § 19-4909 and requests a resentencing hearing.