Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Gregory M. Culet, District Judge.
The opinion of the court was delivered by: Lansing, Judge
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
2013 Unpublished Opinion No. 433
Judgment summarily dismissing post-conviction relief action, affirmed.
Charles T. McCulloch appeals from the summary dismissal of his petition for post-conviction relief. We affirm.
McCulloch pleaded guilty to burglary in violation of Idaho Code § 18-1401. On April 20, 2009, the district court sentenced him to a unified term of ten years, with a minimum period of confinement of five years and retained jurisdiction for 180 days. McCulloch was placed at the North Idaho Correctional Institution (NICI) for the retained jurisdiction period and arrived at that facility on May 18, 2009.
Less than three months later, the facility filed an Addendum to the Presentence Investigation Report (APSI) recommending relinquishment of jurisdiction. The reasons for the recommendation were, in general summary, that McCulloch refused to follow basic rules and was generally argumentative and difficult with staff members. McCulloch declined the opportunity to provide a mitigating statement to the court for inclusion in the APSI. On August 14, 2009, the district court relinquished jurisdiction without a hearing. On August 28, 2009, McCulloch filed an Idaho Criminal Rule 35 motion seeking reduction of his sentence and further requested a hearing. The district court denied the motion. McCulloch appealed, asserting that the district court abused its discretion by imposing an excessive sentence, by relinquishing jurisdiction, and by denying his Rule 35 motion. This Court affirmed. State v. McCulloch, Docket No. 37193 (Ct. App. July 22, 2010) (unpublished).
While that appeal was pending, McCulloch filed this action for post-conviction relief. He asserted that the district court violated his due process rights by relinquishing jurisdiction without a hearing and that his appointed trial counsel was ineffective for failing to give McCulloch notice that the district court had relinquished jurisdiction. The district court dismissed the claims and entered judgment for the State. McCulloch appeals.
In an action for post-conviction relief, 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 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). Claims may be summarily dismissed if the petitioner's allegations are clearly disproven by the record of the criminal proceedings, if the petitioner has not presented evidence making a prima facie case as to each essential element of the claims, or if the petitioner's allegations do not justify relief as a matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281 (2010); McKay v. State, 148 Idaho 567, 570, 225 P.3d 700, 703 (2010); DeRushe v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009); Charboneau v. State, 144 Idaho 900, 903, 174 P.3d 870, 873 (2007); Berg v. State, 131 Idaho 517, 518, 960 P.2d 738, 739 (1998); Murphy v. State, 143 Idaho 139, 145, 139 P.3d 741, 747 (Ct. App. 2006); Cootz v. State, 129 Idaho 360, 368, 924 P.2d 622, 630 (Ct. App. 1996). Thus, summary dismissal of a claim for post-conviction relief is appropriate when the court can conclude, as a matter of law, that the petitioner is not entitled to relief even with all disputed facts construed in the petitioner's favor. For this reason, summary dismissal of a post-conviction petition may be appropriate even when the State does not controvert the petitioner's evidence. See Payne, 146 Idaho at 561, 199 P.3d at 136; Roman, 125 Idaho at 647, 873 P.2d at 901.
Conversely, if the petition, affidavits, and other evidence supporting the petition allege facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be summarily dismissed. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004); Berg, 131 Idaho at 519, 960 P.2d at 740; Stuart v. State, 118 Idaho 932, 934, 801 P.2d 1283, 1285 (1990); Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008); Roman, 125 Idaho at 647, 873 P.2d at 901. If a genuine issue of material fact is presented, an evidentiary hearing must be conducted to ...