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Ash v. State

Court of Appeals of Idaho

June 7, 2017

TERRY LEE ASH, Petitioner-Appellant,
v.
STATE OF IDAHO, Respondent.

         2017 Opinion No. 27

         Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Patrick H. Owen, District Judge.

         Judgment summarily dismissing petition for post-conviction relief, affirmed.

          Nevin, Benjamin, McKay & Bartlett, LLP; Deborah A. Whipple, Boise, for appellant. Dennis A. Benjamin argued.

          Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent. Jessica M. Lorello argued.

          GRATTON, Chief Judge

         Terry Lee Ash appeals from the district court's judgment summarily dismissing his petition for post-conviction relief. We affirm.

         I.

         FACTUAL AND PROCEDURAL BACKGROUND

         In the underlying case, the State charged Ash with driving under the influence, Idaho Code §§ 18-8004, 18-8005(9), and a persistent violator enhancement, I.C. § 19-2514. In the State's case-in-chief at trial, the prosecutor asked the arresting officer, "Now, after he performed those FSTs and you arrested him, did he say anything about drinking any more alcohol besides the one beer?" The officer responded, "He decided not to say anything more after that." Trial counsel moved for a mistrial, asserting the question and answer violated Ash's privilege against self-incrimination. The prosecutor opposed the motion, filing an affidavit in which she stated she understood how the Fifth Amendment applied to Ash's rights, would not intentionally attempt to violate those rights, and was trying to impeach anticipated testimony from Ash that contradicted prior statements he made to the officer. Relying on State v. Ellington, 151 Idaho 53, 253 P.3d 727 (2011), the district court stated: "a prosecutor cannot use post-custody silence to infer guilt in its case in chief." The court held the prosecutor's question and officer's answer constituted fundamental error, granted the motion for mistrial, and scheduled the case for a second trial. The jury in the second trial convicted Ash of driving under the influence. Ash appealed, and this Court affirmed his conviction.

         Ash filed a pro se petition for post-conviction relief and requested appointed counsel. The district court appointed counsel, and counsel amended Ash's petition. In his amended petition, Ash asserted his trial counsel was ineffective for failing to object to his second prosecution on double jeopardy grounds and his "rights to be free from double jeopardy . . . were violated by the second prosecution and conviction." Ash attached a transcript of the proceedings in the underlying case and the prosecutor's affidavit to his amended petition. The State moved for summary dismissal, and Ash moved for summary judgment in response. The district court dismissed the petition. Ash timely appeals.

         II.

         ANALYSIS

         Ash asserts the district court erred in summarily dismissing his petition for post-conviction relief. A petition for post-conviction relief initiates a proceeding that is civil in nature. I.C. § 19-4907; Rhoades v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009); State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct. App. 1992). Like a plaintiff in a civil action, the petitioner must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. 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. Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004). A petition must contain much more than a short and plain statement of the claim that would suffice for a complaint under Idaho Rule of Civil Procedure 8(a)(1). Rather, a petition for post-conviction relief 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 ...


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