              IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                     Docket No. 43800

WAYNE D. ANDERSON, II,                        )    2017 Unpublished Opinion No. 329
                                              )
       Petitioner-Appellant,                  )    Filed: January 25, 2017
                                              )
v.                                            )    Stephen W. Kenyon, Clerk
                                              )
STATE OF IDAHO,                               )    THIS IS AN UNPUBLISHED
                                              )    OPINION AND SHALL NOT
       Respondent.                            )    BE CITED AS AUTHORITY
                                              )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Christopher S. Nye, District Judge.

       Order denying motion to proceed pro se, motion to dismiss counsel, and motion to
       extend time, affirmed.

       Eric D. Fredericksen, Interim State Appellate Public Defender; Ben P. McGreevy,
       Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GRATTON, Chief Judge
       Wayne D. Anderson, II, appeals from the district court’s order denying Anderson’s
motions to proceed as a pro se litigant, dismiss court-appointed counsel, and extend time to
prepare an amended petition. We affirm.
                                              I.
                                FACTS AND PROCEDURE
       Anderson was charged with one count of lewd conduct with a minor under sixteen, Idaho
Code § 18-1508, and one count of sexual abuse of a child under the age of sixteen years, I.C.
§ 18-1506.   He was also charged with two mandatory minimum sentencing enhancements
pursuant to I.C. § 19-2520G(2) on the basis that he previously was convicted of lewd conduct




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with a minor under sixteen. He entered an Alford1 plea to one count of lewd conduct with a
minor and a previous sex offense conviction sentencing enhancement.
       Prior to sentencing, Anderson moved to withdraw his plea on the basis that his wife
coerced him into pleading guilty. The district court denied the motion. Anderson subsequently
moved for reconsideration arguing that, at the time he entered the plea, he suffered from undue
mental duress and severe depression and therefore his plea was not knowing, intelligent, or
voluntary. The district court denied the motion. The district court imposed a unified sentence of
forty years, with a minimum term of confinement of fifteen years. On direct appeal, this Court
affirmed Anderson’s judgment of conviction and sentence. State v. Anderson, 156 Idaho 230,
322 P.3d 312 (Ct. App. 2014). Thereafter, Anderson filed a pro se petition for post-conviction
relief alleging ineffective assistance of counsel for failing to present certain evidence regarding
Anderson’s mental health in support of the motion to withdraw guilty plea. The district court
granted Anderson’s motion for appointment of counsel to represent him in post-conviction
proceedings.
       The district court entered a notice of intent to dismiss Anderson’s petition on the ground
that Anderson failed to allege facts which, if true, demonstrated he was entitled to relief on any
of the claims alleged. The district court granted two requests to extend the time for Anderson to
respond. At the conclusion of the second extension, Anderson filed the following motions, pro
se: “Motion to Proceed Pro Se Litigant,” “Motion to Extend Time to Prepare Petition,” and
“Motion to Dismiss Court Appointed [Counsel].” Anderson alleged that his post-conviction
counsel had provided ineffective assistance in failing to obtain certain documentation and
interviewing potential witnesses. The district court considered Anderson’s motions at a status
conference. Anderson was not present but was represented by post-conviction counsel. At the
hearing, Anderson’s post-conviction counsel told the district court that his investigator had
followed up with the potential witnesses Anderson identified, but that the evidence was
insufficient to support an amended post-conviction petition.
       The district court denied Anderson’s motions. The court concluded that Anderson had
not provided any facts to warrant a third extension of time. The court further concluded that
because Anderson had no constitutional right to the effective assistance of post-conviction
counsel, Anderson’s assertion of ineffective assistance was not a valid basis upon which to grant

1
       See North Carolina v. Alford, 400 U.S. 25 (1970).
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his motions. The district court then summarily dismissed the post-conviction petition on the
grounds previously set forth in its notice of intent to dismiss. Anderson timely appeals.
                                                III.
                                            ANALYSIS
         Anderson argues that the district court abused its discretion when it denied his motions to
proceed as a pro se litigant, dismiss court-appointed counsel, and extend time to prepare an
amended petition, all of which were filed prior to the district court summarily dismissing his
post-conviction petition. 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).
         Anderson argues that the district court did not recognize his right to self-representation
and did not act consistently with applicable legal standards. Further, that a corollary to the right
to self-representation is the right to dismiss counsel. If a post-conviction petitioner is unable to
pay for the expenses of representation, the trial court may appoint counsel to represent the
petitioner in preparing the petition in the trial court and on appeal. I.C. § 19-4904. The decision
to grant or deny a request for court-appointed counsel lies within the discretion of the district
court. Grant v. State, 156 Idaho 598, 603, 329 P.3d 380, 385 (Ct. App. 2014). In this case, the
district court exercised its discretion to appoint Anderson post-conviction counsel. However,
Anderson later moved to dismiss appointed counsel and proceed pro se.
         When a trial court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi-tiered inquiry to determine whether the lower court correctly perceived the
issue as one of discretion; acted within the boundaries of such discretion and consistently with
any legal standards applicable to the specific choices before it; and reached its decision by an
exercise of reason. Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803
P.2d 993, 1000 (1991).
         Anderson cites two Idaho cases recognizing that plaintiffs in civil cases have a right to
self-representation: Idaho State Bar Assoc. v. Idaho Pub. Utils. Comm’n, 102 Idaho 672, 637

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P.2d 1168 (1981); Weston v. Gritman Mem’l Hosp., 99 Idaho 717, 587 P.2d 1252 (1978).
Anderson also points to the common law in support of his claim of right of self-representation,
Iannaccone v. Law, 142 F.3d 553 (2d Cir. 1998) (discussing the history of the right to self-
representation in civil proceedings).      Further, Anderson notes that “a client has a right to
discharge a lawyer at any time, with or without cause, subject to liability for payment for the
lawyer’s services.”          IDAHO RULE   OF   PROF’L CONDUCT 1.16 cmt. 4 (2014).         Anderson
acknowledges that Idaho courts have not specifically addressed whether petitioners in post-
conviction proceedings have a right to self-representation. However, Anderson argues, a post-
conviction petitioner should be able to exercise a right to self-representation similar to that of
plaintiffs in civil cases.
        Anderson’s motions were based on the notion that court-appointed counsel had provided
ineffective assistance in failing to obtain certain documentation and interviewing potential
witnesses. There is no constitutionally protected right to the effective assistance of counsel in
post-conviction relief proceedings and such an allegation, in and of itself, is not among the
permissible grounds for post-conviction relief. Murphy v. State, 156 Idaho 389, 394, 327 P.3d
365, 370 (2014). Further, “[w]here there is no right to counsel, there can be no deprivation of
effective assistance of counsel.” Id. at 395, 327 P.3d at 371. When denying Anderson’s
motions, the district court correctly noted that Anderson does not have a right to counsel in a
post-conviction action and cannot maintain an ineffective assistance of counsel claim.
        Under the circumstances of this case, we need not resolve whether Anderson had a right
to self-representation in post-conviction proceedings because the district court did not abuse its
discretion in denying the motion for continuance. Anderson argues that the district court abused
its discretion when it denied the motion to extend time to prepare an amended petition “with
forthcoming [evidence] of additional witnesses, and documentation from both Canyon County
Medical and Detention Centers.” At the status conference, court-appointed counsel represented
to the district court that he had had his investigator check on potential witnesses and that counsel
had not discovered any good evidence upon which to base an amended petition. The district
court held that Anderson had not provided any facts to warrant an additional extension, noting
that the matter had been extended twice already.
        “The decision to grant or deny a motion for a continuance is vested in the sound
discretion of the trial court.” Hall v. State, 156 Idaho 125, 131, 320 P.3d 1284, 1290 (Ct. App.

                                                   4
2014). In order to prevail on appeal, the petitioner must show that the trial court abused its
discretion and that his substantial rights have been prejudiced. State v. Payne, 146 Idaho, 548,
567, 199 P.3d 123, 142 (2008). The issue here is whether the district court acted consistently
with the applicable legal standards when it denied Anderson’s motion as being unsupported and
untimely.
       The district court noted that it had already granted two extensions and found that
Anderson “hasn’t provided any facts to warrant an additional extension.” The district court had
the discretion to consider the foundation and timeliness of Anderson’s motion.            “[B]road
discretion must be granted trial courts on matters of continuances; only an unreasoning and
arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay’ violates
the right to the assistance of counsel.” Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (quoting
Ungar v. Sarafite, 376 U.S. 575, 589 (1964)). See also State v. Cagle, 126 Idaho 794, 797, 891
P.2d 1054, 1057 (Ct. App. 1995) (holding that, when trial courts consider motions which may
cause delay in the proceedings, the timing of the motion, length of the delay, and whether the
delay is an attempt to manipulate proceedings are relevant factors in the trial court’s
consideration).
       Anderson proffered no evidence as to what the additional witnesses and documentation
would prove, nor did he request any specific length of delay. Based on the limited information
provided by Anderson, the district court was within its discretion to find that Anderson’s motion
was unsupported and would have caused undue delay to the proceedings. Anderson has failed to
show that the district court committed reversible error or otherwise failed to act consistently with
applicable legal standards. Accordingly, the district court did not err in denying Anderson’s
motion for a continuance. Thus, even if he had a right to represent himself, Anderson would
only have been able to provide argument against dismissal at the hearing, but no new evidence.
Anderson was still searching for new evidence to support his arguments and therefore would not
have avoided the summary dismissal of his petition.




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                                               III.
                                        CONCLUSION
       The district court did not err in denying Anderson’s motions to proceed as a pro se
litigant, dismiss court-appointed counsel, and extend time to prepare an amended petition.
Accordingly, the district court’s order denying the motions is affirmed.
       Judge GUTIERREZ and Judge MELANSON CONCUR.




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