2013 Unpublished Opinion No. 507
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael R. McLaughlin, District Judge.
Order summarily dismissing petition for post-conviction relief, affirmed.
Ellsworth, Kallas & DeFranco, PLLC; Joseph L. Ellsworth, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent.
Edward Dean Olson appeals from the district court's order summarily dismissing his petition for post-conviction relief. We affirm.
I. FACTS AND PROCEDURE
Olson pled guilty to possession of a controlled substance, Idaho Code § 37-2732, and forgery, I.C. § 18-3601. The district court imposed a unified term of seven years with one year determinate for his possession of a controlled substance conviction and a consecutive unified term of fourteen years with seven years determinate for his forgery conviction. On December 30, 2008, Olson's counsel filed an Idaho Criminal Rule 35 motion requesting leniency in his sentence. Thereafter, in early January 2009, a riot occurred at the Idaho State Correctional Institution where Olson was incarcerated. Olson allegedly prevented several inmates from participating in the riot and helped a prisoner who was badly beaten. Following the riot, Olson claims he tried to inform counsel of his actions during the riot, but counsel allegedly failed to communicate with him. On January 27, 2009, the district court denied Olson's Rule 35 motion. In an unpublished opinion, this Court determined that the sentences imposed were not excessive. State v. Olson, Docket No. 36087 (Ct. App. July 23, 2009) (unpublished).
While the appeal was pending, Olson filed a petition for post-conviction relief. He was appointed counsel and his counsel filed an amended petition for post-conviction relief. The petition asserted that trial counsel provided ineffective assistance of counsel for failing to communicate with Olson following the prison riot and for failing to produce evidence of Olson's actions during the riot to the district court for its consideration when determining his Rule 35 motion. The district court summarily dismissed his motion, finding that Olson failed to demonstrate prejudice. Olson timely appeals.
Olson claims that the district court erred in failing to conduct an evidentiary hearing regarding his claim of ineffective assistance of counsel. 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. 2008). ...