               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 36802

SHAUN ELMO HYER,                                 )      2010 Unpublished Opinion No. 689
                                                 )
       Petitioner-Appellant,                     )      Filed: October 29, 2010
                                                 )
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STATE OF IDAHO,                                  )      THIS IS AN UNPUBLISHED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 Fourth Judicial District, State of Idaho, Ada
       County. Hon. Michael E. Wetherell, District Judge.

       Order summarily dismissing application for post-conviction relief, affirmed in
       part, reversed in part, and case remanded; order denying motion for
       reconsideration, affirmed.

       Greg S. Silvey, Kuna, for appellant.

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

GUTIERREZ, Judge
       Shaun Elmo Hyer appeals from the district court’s order summarily dismissing his
petition for post-conviction relief and order denying his motion for reconsideration. For the
reasons stated below, we affirm in part, reverse in part, and remand for further proceedings.
                                                I.
                                        BACKGROUND
       In the underlying criminal case, Hyer pled guilty to one count of lewd conduct with a
minor under sixteen pursuant to a plea agreement. I.C. § 18-1508. Hyer entered the agreement
in exchange for the state dismissing three counts of possession of sexually exploitative material.
The district court imposed a unified twenty-year sentence, with six years determinate. Hyer
challenged the sentence through an Idaho Criminal Rule 35 motion arguing that he “received two
addenda to his presentence investigation report (PSI), which he was unaware of at the time his
sentence was imposed.”      The district court granted a hearing on the Rule 35 motion and
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subsequently entered a written order affirming the original sentence. Hyer appealed and this
Court vacated his judgment of conviction and remanded the case to the district court for
resentencing at a proceeding in which Hyer was in attendance. Following remand, the district
court re-entered judgment.
       More than four years after the re-entered judgment of conviction, Hyer filed a pro se
petition for post-conviction relief alleging: (1) ineffective assistance of counsel; (2) violation of
his Fifth Amendment privilege against self-incrimination; and (3) denial of “fundamental
fairness embedded in the Fourteenth Amendment due process clause.” In addition, Hyer filed a
motion for appointment of counsel. The district court granted Hyer’s request for counsel, and
also issued a notice of intent to dismiss all claims except for one claim of ineffective assistance
of counsel.   The district court subsequently entered an order summarily dismissing Hyer’s
petition after receiving no response from Hyer. Hyer then filed a motion for reconsideration
through counsel pursuant to Idaho Rule of Civil Procedure 60(b).            Hyer’s post-conviction
counsel submitted an affidavit in support of the motion in which he stated that he and Hyer were
in disagreement over which claims should be pursued. Hyer’s counsel acknowledged that he had
not complied with the district court’s notice, but asked the court to find good cause or excusable
neglect for his noncompliance. The district court determined that the disagreement between
Hyer and his counsel did not justify the failure to file a timely response and denied the motion to
reconsider. Hyer appeals from both the summary dismissal of his petition for post-conviction
relief as well as the denial of the motion for reconsideration.
                                                 II.
                                   STANDARD OF REVIEW
       An application for post-conviction relief initiates a proceeding that is civil in nature.
State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Clark v. State, 92 Idaho 827,
830, 452 P.2d 54, 57 (1969); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct.
App. 1992). As with a plaintiff in a civil action, the applicant must prove by a preponderance of
evidence the allegations upon which the request for post-conviction relief is based. I.C. § 19-
4907; Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). An application for
post-conviction relief differs from a complaint in an ordinary civil action. An application 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, an application for post-
conviction relief must be verified with respect to facts within the personal knowledge of the
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applicant, and affidavits, records or other evidence supporting its allegations must be attached, or
the application must state why such supporting evidence is not included with the application.
I.C. § 19-4903. In other words, the application must present or be accompanied by admissible
evidence supporting its allegations, or the application will be subject to dismissal.
       Summary dismissal is permissible only if the applicant’s evidence has failed to raise a
genuine issue of material fact which, if resolved in the applicant’s favor, would entitle him to
relief. I.C. § 19-4906(b)-(c); Gonzales v. State, 120 Idaho 759, 761, 819 P.2d 1159, 1161 (Ct.
App. 1991). If such a factual issue is raised, an evidentiary hearing must be held. Id. at 763, 819
P.2d at 1163; Ramirez v. State, 113 Idaho 87, 88, 741 P.2d 374, 375 (Ct. App. 1987). However,
because the trial court rather than a jury will be the trier of fact in the event of an evidentiary
hearing, summary disposition is permissible, despite the possibility of conflicting inferences to
be drawn from the facts, for the court alone will be responsible to resolve the conflict between
those inferences. State v. Yakovac, 145 Idaho 437, 444, 180 P.3d 476, 483 (2008). That is, the
judge in a post-conviction action is not constrained to draw inferences in favor of the party
opposing the motion for summary disposition but rather is free to arrive at the most probable
inferences to be drawn from uncontroverted evidentiary facts. Id.; Hayes v. State, 146 Idaho
353, 355, 195 P.3d 712, 714 (Ct. App. 2008).
       Our review of the district court’s construction and application of the limitation statute is a
matter of free review. Freeman v. State, 122 Idaho 627, 628, 836 P.2d 1088, 1089 (Ct. App.
1992). The statute of limitation for post-conviction actions provides that an application for post-
conviction relief may be filed at any time within one year from the expiration of the time for
appeal or from the determination of appeal or from the determination of a proceeding following
an appeal, whichever is later. I.C. § 19-4902(a). The appeal referenced in that section means the
appeal in the underlying criminal case. Freeman, 122 Idaho at 628, 836 P.2d at 1089. The
failure to file a timely application is a basis for dismissal of the application. Sayas v. State, 139
Idaho 957, 959, 88 P.3d 776, 778 (Ct. App. 2003).
                                                III.
                                          DISCUSSION
A.     Post-Conviction Petition
       Hyer asserts that it was error for the district court to dismiss his claim of ineffective
assistance of counsel for his counsel’s failure to file a requested notice of appeal because the
notice of intent to dismiss found it to be adequately pled and stated that it would not be
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dismissed, and therefore no response was required. Furthermore, he asserts that it was error for
the district court to dismiss his claim of violation of his Fifth Amendment right against self-
incrimination made pursuant to State v. Estrada, 143 Idaho 558, 149 P.3d 833 (2006), because
the district court misinterpreted that case. The state counters that Hyer has failed to establish
error in the district court’s summary dismissal of his petition because the petition was untimely.
       1.      Insufficient notice
       Hyer argues that he received insufficient notice of the district court’s intent to dismiss his
claim alleging his trial counsel was ineffective for failing to file an appeal after Hyer requested
him to. Idaho Code § 19-4906 provides, in pertinent part:
       (b)     When a court is satisfied, on the basis of the application, the answer or
       motion, and the record, that the applicant is not entitled to post-conviction relief
       and no purpose would be served by any further proceedings, it may indicate to the
       parties its intention to dismiss the application and its reasons for so doing. The
       applicant shall be given an opportunity to reply within 20 days to the proposed
       dismissal. . . .

       A district court cannot “dismiss a claim on a ground not asserted by the State in its
motion unless the court gives the twenty-day notice required by Section 19-4906(b).” DeRushé
v. State, 146 Idaho 599, 602, 200 P.3d 1148, 1151 (2009). The notice procedure is necessary so
that the applicant is afforded an opportunity to respond and to establish a material issue of fact if
one exists. Flores v. State, 128 Idaho 476, 478, 915 P.2d 38, 40 (Ct. App. 1996). If a district
court dismisses on grounds not contained in the state’s motion, the applicant does not have the
opportunity to respond and attempt to establish a material issue of fact. Garza v. State, 139
Idaho 533, 537, 82 P.3d 445, 449 (2003).
       In its notice of intent to dismiss, the district court stated:
               In support of his ineffective assistance claim, Petitioner alleges his counsel
       failed to file an appeal after his most recent sentencing. The record supports
       Petitioner’s claim that no notice was filed. In addition, Petitioner makes the
       proper initial allegation to support this claim, that he requested his counsel file the
       appeal, but his counsel refused. See Mata v. State, 124 Idaho 588, 592, 861 P.2d
       1253, 1257 (Ct. App. 1993). In such a circumstance Petitioner need not show
       prejudice, as the loss of one’s right to appeal “is prejudice per se.” State v.
       Beasley, 126 Idaho 356, 359-60, 883 P.2d 714, 717-18 (Ct. App. 1994).
       Accordingly, this allegation and claim will not be dismissed.

       The district court subsequently entered an order summarily dismissing Hyer’s petition
after receiving no response from Hyer. Clearly, the district court erred in dismissing Hyer’s

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claim that trial counsel was ineffective for failing to file a notice of appeal upon request to do so.
The notice of intent provided no grounds for dismissing this claim.               To the contrary, it
specifically gave notice that this claim would not be dismissed. Accordingly, we remand this
claim back to the district court for further proceedings.
       2.      Ineffective assistance of counsel
       A claim of ineffective assistance of counsel may properly be brought under the post-
conviction procedure act. Murray, 121 Idaho at 924-25, 828 P.2d at 1329-30. To prevail on an
ineffective assistance of counsel claim, the defendant must show that the attorney’s performance
was deficient and that the defendant was prejudiced by the deficiency. Strickland v. Washington,
466 U.S. 668, 687-88 (1984); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct. App.
1995). To establish a deficiency, the applicant has the burden of showing that the attorney’s
representation fell below an objective standard of reasonableness. Aragon v. State, 114 Idaho
758, 760, 760 P.2d 1174, 1176 (1988). To establish prejudice, the applicant must show a
reasonable probability that, but for the attorney’s deficient performance, the outcome of the trial
would have been different. Id. at 761, 760 P.2d at 1177. This Court has long-adhered to the
proposition that tactical or strategic decisions of trial counsel will not be second-guessed on
appeal unless those decisions are based on inadequate preparation, ignorance of relevant law, or
other shortcomings capable of objective evaluation. Howard v. State, 126 Idaho 231, 233, 880
P.2d 261, 263 (Ct. App. 1994). Claims of ineffective assistance of appellate counsel are subject
to the standards set forth in Strickland. Mintun v. State, 144 Idaho 656, 661, 168 P.3d 40, 45 (Ct.
App. 2007).
               a.      Estrada claim
       Hyer argues that the district court erred in dismissing his Estrada claim when it
misinterpreted Estrada by including an additional requirement for relief that was not in that case.
The district court addressed this claim in its notice of intent to dismiss stating in relevant part:
       . . . Petitioner complains only that he was not warned of his rights . . . . Because
       none of the other elements of this claim have been shown, and Petitioner has not
       supported his assertions with admissible evidence and portions of the record, the
       Court will dismiss this claim.

       Hyer failed to allege a prima facie Estrada violation that would entitle him to an
evidentiary hearing. Although Hyer alleged in his petition and affidavit that counsel had failed
to advise him regarding his right not to participate in the psychosexual evaluation (PSE), he

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never alleged that had his counsel advised him of this right, he would have refused to undergo
the evaluation. In addition, Hyer failed to set forth any relevant evidence from the record such as
the PSE and the sentencing hearing transcript to support his allegations that he was prejudiced by
his attorney’s deficient performance, nor did he explain why they were not attached to his
petition. See Esquivel v. State, 149 Idaho 255, 258, 233 P.3d 186, 189 (Ct. App. 2010) (holding
that access to the PSE is essential for the reviewing court to be able to determine if the defendant
was prejudiced by the attorney’s deficient performance). Accordingly, the district court did not
err in concluding that Hyer was not entitled to an evidentiary hearing on his Estrada claim.
B.     Motion for Reconsideration
       Hyer asserts that the district court erred in denying his I.R.C.P. 60(b) motion to
reconsider. The decision to deny or grant relief pursuant to a Rule 60(b) motion is reviewed on
appeal under the abuse of discretion standard. Kirkland v. State, 143 Idaho 544, 547, 149 P.3d
819, 822 (2006). In support of the motion to reconsider, Hyer’s post-conviction counsel filed an
affidavit explaining that he had failed to comply with the court’s notice of intent to dismiss
because he could not reach an agreement with Hyer as to what claims to pursue.
       Rule 60(b)(1) states that a court may relieve a party from a final judgment or order for
“mistake, inadvertence, surprise, or excusable neglect.” The decision whether to grant relief
under Rule 60(b) is committed to the discretion of the district court. When exercising its
discretion, the district court must examine whether “the litigant engaged in conduct which,
although constituting neglect, was nevertheless excusable because a reasonably prudent person
might have done the same thing under the circumstances.” Washington Fed. Savings & Loan
Ass’n v. Transamerica Premier Ins. Co., 124 Idaho 913, 915, 865 P.2d 1004, 1006 (Ct. App.
1993) (holding that overlooking a notice of service because of a mistaken belief that there was
thirty days to respond instead of twenty was not inadvertence or excusable neglect); see also
Gro-Mor Inc. v. Butts, 109 Idaho 1020, 1023, 712 P.2d 721, 724 (Ct. App. 1985) (holding that
being unaware of the twenty-day answering time in Idaho constituted abject neglect but not
excusable neglect because no reasonably prudent person under those circumstances would have
stood idly by as did the defendant). Merely attaching labels such as inadvertence and neglect to
one’s actions does not automatically make those actions excusable. Washington Fed. Savings &
Loan Ass’n, 124 Idaho at 915-16, 865 P.2d at 1006-07.
       Hyer argues that the disagreement with his post-conviction counsel about what issues
should be pursued “seems to fall neatly under the inadvertence and/or excusable neglect grounds
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for relief in I.R.C.P. 60(b)(1).” Hyer argues that his counsel’s failure to comply with the district
court’s notice of intent to dismiss was inadvertent because there was no evidence that counsel
was intentionally attempting to have the petition dismissed. He further argues that the neglect is
excusable because the affidavit shows that appointed counsel was attempting to resolve the
problem, as opposed to doing nothing and having the time expire. The district court determined
that Hyer’s failure to comply with the court’s notice of intent to dismiss due to his inability to
agree with his counsel regarding what claims were viable in post-conviction did not constitute
good cause or excusable neglect. We agree. Even though Hyer’s counsel was not intentionally
attempting to have the petition dismissed, it does not automatically follow that he was acting
inadvertently or that it amounted to excusable neglect because as an attorney he knew or should
have known of the time requirements. Disagreements between client and counsel are a very
common occurrence, and hardly constitute an excusable reason for failure to either comply with
procedural deadlines or move for an extension of time, neither of which was done here.
Therefore, Hyer has failed to establish that the district court abused its discretion in denying his
motion to reconsider.
                                                IV.
                                         CONCLUSION
       The district court erred by not giving Hyer proper notice before it dismissed his claim
based on his trial counsel’s failure to file an appeal. Therefore, we remand this claim back to the
district court. The district court did not err in concluding that Hyer was not entitled to an
evidentiary hearing on his Estrada claim for failure to establish a prima facie case of ineffective
assistance of counsel. Moreover, the district court did not err in denying his motion to reconsider
wherein the failure to timely respond to the notice of intent to dismiss did not occur due to
inadvertence or excusable neglect. Accordingly, we affirm in part, reverse in part, and remand
for further proceedings.
       Chief Judge LANSING and Judge MELANSON, CONCUR.




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