Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. G. Richard Bevan, District Judge.
The opinion of the court was delivered by: Walters, Judge pro tem
2012 Unpublished Opinion No. 667
THIS IS AN UNPUBLISHED
OPINION AND SHALL NOT
BE CITED AS AUTHORITY
Order summarily dismissing amended petition for post-conviction relief, affirmed in part, vacated in part, and case remanded.
Spencer Jay Maschek appeals from the district court's order summarily dismissing his petition for post-conviction relief. Maschek claims that his counsel was ineffective for failing to withdraw his guilty plea after the district court relinquished jurisdiction and failing to adequately explain the plea agreement.
I. FACTUAL AND PROCEDURAL BACKGROUND
In the underlying criminal case, Maschek entered an Alford plea*fn1 to
conspiracy to commit arson. Pursuant to the plea agreement, the
State recommended Maschek be sentenced to a unified term of eight
years, with four years determinate. The State also recommended that
Maschek's sentence be suspended and he be placed on supervised
probation for four years, on
the condition that he participate in, and comply with the requirements
of, mental health court. In the event Maschek was not accepted into
mental health court, the State agreed "to limit itself to a period of
retained jurisdiction, not actual penitentiary time to be served."
At the hearing for the entry of his guilty plea, the district court asked Maschek if he understood the plea agreement and whether he felt his counsel had properly advised him. Maschek replied that he understood the plea agreement because he had discussed the agreement with counsel. The district court also attempted to explain to Maschek the consequences of signing the plea agreement.
Maschek was ultimately denied admittance into mental health court. The district court then sentenced him to a unified term of eight years, with four years determinate; however, the district court retained jurisdiction. Following the period of retained jurisdiction, the North Idaho Correctional Institution issued an addendum to the presentence investigation report, which recommended the district court relinquish jurisdiction because Maschek received multiple disciplinary sanctions for violating the rules of the retained jurisdiction program. The district court relinquished jurisdiction and this Court subsequently affirmed the sentence. State v. Maschek, Docket No. 36580 (Ct. App. Mar. 3, 2010) (unpublished).
Maschek then filed a pro se petition for post-conviction relief arguing, inter alia, he received ineffective assistance of counsel. Maschek requested appointed counsel, which the district court granted, and Joseph Rockstahl was appointed to represent Maschek. Rockstahl filed an amended petition for post-conviction relief, which merely restated Maschek's post- conviction claims. After filing an answer, the State filed a motion for summary dismissal with a supporting brief and statement of uncontested material facts. The State also requested the district court take judicial notice of thirty-one documents from the underlying criminal case. At the hearing on the motion for summary dismissal, Rockstahl failed to make any additional argument; instead, he relied entirely on the initial pro se petition and amended petition for post-conviction relief. The district court took judicial notice of the documents and ultimately rejected all of Maschek's claims and summarily dismissed the petition. Maschek timely appealed.*fn2
A petition for post-conviction relief initiates a civil, rather than criminal, proceeding, governed by the Idaho Rules of Civil Procedure. State v. Yakovac, 145 Idaho 437, 443, 180 P.3d 476, 482 (2008). See also Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642, 646 (2008). Like plaintiffs in other civil actions, the petitioner must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. I.C. § 19-4907; Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002). A petition for post-conviction relief differs from a complaint in an ordinary civil action, however, in that it must contain more than "a short and plain statement of the claim" that would suffice for a complaint under I.R.C.P. 8(a)(1). State v. Payne, 146 Idaho 548, 560, 199 P.3d 123, 135 (2008); Goodwin, 138 Idaho at 271, 61 P.3d at 628. The petition must be verified with respect to facts within the personal knowledge of the petitioner, and affidavits, records or other evidence supporting its allegations must be attached, or the petition must state why such supporting evidence is not included. I.C. § 19-4903. In other words, the petition must present or be accompanied by admissible evidence supporting its allegations, or it will be subject to dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011); Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994).
Idaho Code § 19-4906 authorizes summary dismissal of a petition for post-conviction relief, either pursuant to motion of a party or upon the court's own initiative, if "it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of facts, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." I.C. § 19-4906(c). When considering summary dismissal, the district court must construe disputed facts in the petitioner's favor, but the court is not required to accept either the petitioner's mere conclusory allegations, unsupported by admissible evidence, or the petitioner's conclusions of law. Payne, 146 Idaho at 561, 199 P.3d at 136; Roman, 125 Idaho at 647, 873 P.2d at 901. Moreover, because the district court rather than a jury will be the trier of fact in the event of an evidentiary hearing, the district court is not constrained to draw inferences in the petitioner's favor, but is free to arrive at the most probable inferences to be drawn from the evidence. Yakovac, 145 Idaho at 444, 180 P.3d at 483; Wolf, 152 Idaho at 67, 266 P.3d at 1172; Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. ...