ALIK TAKHSILOV v. STATE OF IDAHO (2016)

BRIEF IN SUPPORT OF PETITION FOR REHEARING

COMES NOW Appellant Alik Takhsilov, through counsel of record, pursuant to Idaho Appellate Rule 42, and offers this brief in support of his petition for rehearing.

Rehearing should be granted for two reasons. First, this Court erroneously concluded that Mr. Takhsilov's verified statement that prior to the entry of his guilty plea he began hearing voices and was suffering greatly from his mental illness making him once again incompetent was inadmissible hearsay. R 62, 64, Slip Op. p. 6. Second, this Court's opinion is internally inconsistent and will lead to confusion in future cases regarding the holding of Ridgley v. State, 148 Idaho 671. 227 P.3d 925 (2009).

Rehearing Should be Granted because the Statement that Mr. Takhsilov was Hearing Voices and Suffering Greatly From his Mental illness Prior to Entry of the Guilty Plea was Not Hearsay

Mr. Takhsilov's verified amended petition includes this statement: “Mr. Takhsilov reports that prior to the entry of his guilty plea on March 5, 2013, he began hearing voices and was suffering greatly from his mental illness, deeming him once again incompetent.” R 62. This Court found that this was inadmissible hearsay and could not be considered in a summary dismissal analysis because counsel included the word “reports” in the statement. Slip Op. p. 6.

This Court has long held that in considering a petition for post-conviction relief, the courts are to look to the substance and disregard defects of form. Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969).

In considering form over substance, courts have held that the reality underlying the language takes precedent over the language. Thus, in State v. Beard, 135 Idaho 641, 647, 22 P.3d 116, 122 (Ct. App. 2001), the Court of Appeals held that the defendant could not escape liability by titling herself as a “debt negotiator” instead of a “debt counselor.” “We reject Beard's assertion because it raises form over substance and thereby ignores the actual activity for which Beard was found guilty.” Id., italics original. Likewise, in Watson v. Weick, 142 Idaho 275, 279, 127 P.3d 178, 182 (2005), this Court held that Weick could not avoid a contempt finding by relying on the fact that the district court had entered an “amended order” which set a new court date instead of a “second order,” “subsequent order,” “another order,” or “order.” This Court wrote, “Weick's ‘plain meaning’ argument impermissibly elevates form over substance and this Court will not exalt form over substance.” Id., citing Bone v. City of Lewiston, 107 Idaho 844, 849, 693 P.2d 1046, 1052 (1984). And, in Fish Breeders v. Rangen, Inc., 108 Idaho 379, 385, 700 P.2d 1, 6 (1985), this Court held that IRCP 48(b) which at the time provided, “The verdict must be in writing and signed by the foreman if all the jurors agree, but if not all jurors agree, the written verdict must be signed by all agreeing jurors,” did not require a new trial. Noting that the jury found against Fish Breeders on each of its theories, this Court held that granting a new trial because the jurors did not sign their non-unanimous responses to jury interrogatories would be to exalt form over substance.

In this case, this Court writes, “The critical word is ‘reports.’ Slip Op. p. 6. Had the petition stated, “Mr. Takhsilov reports to this court that prior to the entry of his guilty plea ․” or “Mr. Takhsilov alleges that ․” this Court would not have found that the statement was hearsay and would have relied upon the fact that he was hearing voices and suffering from his mental illness prior to entry of the plea in determining whether to affirm the grant of summary dismissal.

Instead of looking to substance over form, this Court concludes that the petition is silent as to when, where, and to whom Mr. Takhsilov was making the report. Thus, the fact that he was hearing voices and suffering from mental illness prior to entry of the plea could not be considered because it was relayed in a hearsay statement within the petition. Id.

By verifying the petition, Mr. Takhsilov declared under penalty of perjury that the matters and allegations set forth in his amended petition were true. R 64. Under any reasonable interpretation, Mr. Takhsilov's verification verifies that his statement that he was hearing voices and suffering from his mental illness prior to entry of this plea is true. To hold otherwise is to exalt form over substance and to penalize Mr. Takhsilov for the sloppy draftsmanship of his attorney - an especially unfair result as Mr. Takhsilov is not a native English speaker, is mentally ill, and is not trained in the intricacies of the hearsay rules. R 10-11.

This Court has erred in finding that Mr. Takhsilov's allegation that he was hearing voices and suffering from mental illness prior to entry of his guilty plea cannot be considered in determining whether he raised a genuine issue of material fact as to ineffective assistance of counsel. This Court should grant rehearing, find that Mr. Takhsilov's allegation can be considered, and that considering all of the information before the court, summary dismissal should not have been granted.

Rehearing Should be Granted because this Court's Opinion is Internally Inconsistent and will Result in Future Confusion Regarding the Scope of Ridgley v. State

The opinion in this case clarifies Ridgley v. State, supra:

The State's assertions regarding the holding [of Ridgley] were somewhat overstated because, although a qualified expert's opinion is necessary to ultimately demonstrate incompetence, an expert opinion is not essential to survive a motion for summary dismissal.

Slip Op. p. 4.

However, when it applied this holding to Mr. Takhsilov, this Court implicitly holds that an expert opinion is necessary to survive the state's motion for summary dismissal.

Mr. Takhsilov, as this Court noted, had been deemed incompetent to proceed and was transferred to Idaho State Hospital South pursuant to I.C. § 18-212. After three months' treatment, he was found to have regained competency and returned to the district court. However, his diagnoses included PTSD and major depression with psychotic features. His status upon release was “severe” as he had chronic mental illness combined with substance abuse and limited social support. He was prescribed several medications to manage his mental illness. R 58.

In addition, as set out in his pro se original petition, Mr. Takhsilov believed, based upon information from counsel, that upon his successful release from the hospital he would no longer face felony charges. Therefore, with the aid of a friend and her friend who worked at the hospital, he untruthfully answered questions in the hospital's evaluations to obtain his release despite ongoing illness. R 10.

In his amended petition, Mr. Takhsilov stated “because his symptoms returned prior to the entry of his guilty plea, that he was not competent to enter his guilty plea on March 5, 2013.” R 62. He further stated in his affidavit in support of the amended petition:

During the time after my stay at Idaho State Hospital-South, and prior to the entry of my guilty plea, I was suffering from the symptoms of my mental illness. I did not understand what was going on in my case.

R 66.

In analyzing whether the district court erred in summarily dismissing Mr. Takhsilov's petition, this Court recited some of this information - including that he had been transferred to State Hospital South prior to entry of the guilty plea and his averment that he was suffering from the symptoms of his mental illness and did not understand what was going on in his case. However, this Court did not reference either his diagnoses, the hospital's conclusion that his status was severe due to chronic mental illness, nor his statements that he had answered the hospital's evaluations untruthfully with the help of an employee to secure his release.

In finding no error in the summary dismissal, this Court stated that the statement “Mr. Takhsilov reports that prior to entry of his guilty plea on March 5, 2013, he began hearing voices and was suffering greatly from his mental illness, deeming him once again incompetent” is inadmissible hearsay and thus cannot be relied upon to avoid summary dismissal. Slip Op. pp. 6-7.

This Court then looked only to the statement in the affidavit in support of the petition and concluded:

The second statement contains ‘conclusory and bare assertions' that do not address Takhsilov's mental condition at the time he entered his guilty pleas. Ridgley, 148 Idaho at 678, 227 P.3d at 932. The State's motion correctly notes that, with only those claims, in the absence of an expert opinion, ‘[t]he Court is left with the petitioner's bare assertion of incompetence.’ Takhsilov's conclusory allegations of his medical history and condition do not suffice to create a genuine issue of fact regarding his competency. The district court properly granted the State's motion for summary dismissal.

Slip Op. p. 7.

This Court's holding that an expert opinion is not required to survive a motion for summary dismissal is inconsistent with its holding that Mr. Takhsilov's medical history including chronic mental illness and his allegations that he had misled the hospital in order to be released and further that he continued to suffer from the symptoms of mental illness prior to entry of the plea and did not understand what was happening in the case is not sufficient to survive a motion for summary dismissal. The only thing more that Mr. Takhsilov could have presented that would have satisfied this Court would have been an expert opinion; no one but Mr. Takhsilov can tell a court what was going on in his mind, and a non-expert's opinion of his competence would be inadmissible per IRE 701 because it would be “based upon scientific, technical or other specialized knowledge within the scope of Rule 702.” Thus, although this Court holds on page 4 that an expert opinion is not required to survive a summary judgment motion, it implicitly holds on page 7 that an expert opinion is required. This will lead to confusion in future cases and unnecessary litigation.

Mr. Takhsilov requests rehearing to resolve the inconsistency in this Court's opinion. He specifically requests that this Court find that his medical history, his chronic mental illness, and his nonhearsay statements are sufficient to raise a genuine issue of material fact requiring an evidentiary hearing.

Conclusion

Both because of the error in deeming Mr. Takhsilov's statement regarding hearing voices and suffering from his mental illness as inadmissible hearsay and because of the internal inconsistency of the opinion as to the necessity of an expert opinion to survive summary dismissal, individually and collectively, Mr. Takhsilov requests that this Court grant rehearing and hold that his petition should not have been summarily dismissed.

Dennis Benjamin Attorneys for Alik Takhsilov

Deborah Whipple

CERTIFICATE OF SERVICE

I CERTIFY that on December 6th 2016, I caused a true and correct copy of the foregoing document to be:

___ mailed

__ hand delivered

___ faxed

to: John McKinney

Deputy Attorney General

Criminal Law Division

P.O. Box 83720

Boise, ID 83720-0010

Deborah Whipple