                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 41409

HAROLD EDWARD GRIST, JR.,                        )    2015 Unpublished Opinion No. 366
                                                 )
       Petitioner-Appellant,                     )    Filed: February 23, 2015
                                                 )
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STATE OF IDAHO,                                  )    THIS IS AN UNPUBLISHED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 Second Judicial District, State of Idaho, Nez
       Perce County. Hon. Carl B. Kerrick, District Judge.

       Order of the district court partially granting motion for                   summary
       dismissal affirmed; judgment denying post-conviction relief, affirmed.

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

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

KIDWELL, Judge Pro Tem
     Harold Edward Grist, Jr. appeals from the district court’s order partially granting the
State’s motion for summary dismissal of his petition for post-conviction relief and its subsequent
denial of his remaining post-conviction claim following an evidentiary hearing. For the reasons
set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       In 2005, Grist was charged with seven counts of lewd conduct with a minor under
sixteen, one count of sexual abuse of a child under sixteen, and two counts of sexual battery of a
minor child sixteen or seventeen years of age. The victim was his girlfriend’s daughter, with
whom he lived. Grist’s first trial in 2006 resulted in the jury finding him guilty of all ten counts.

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Prior to sentencing, a psychosexual evaluation (PSE) was performed. The district court imposed
concurrent unified life sentences, with fifteen years determinate, for each of the seven lewd
conduct counts and, on the remaining counts, imposed determinate sentences of fifteen years, to
run concurrently with each other and with the lewd conduct sentences. Grist appealed and the
Idaho Supreme Court vacated his convictions after holding the district court committed
reversible error by admitting evidence of prior acts of sexual misconduct committed by Grist
against a different victim. State v. Grist, 147 Idaho 49, 55, 205 P.3d 1185, 1191 (2009).
       Grist was retried and was again found guilty of all ten counts. Prior to sentencing, the
parties agreed to rely on the PSE prepared after the first trial. The district court imposed
concurrent unified life sentences, with ten years determinate, on the lewd conduct counts, and on
the remaining counts, imposed determinate periods of confinement of five years, to run
consecutively with each other and with the lewd conduct sentences. Thus, Grist’s aggregate
determinate sentence was increased from fifteen years, imposed after the first trial, to twenty-five
years. On direct appeal, this Court granted relief as to Grist’s vindictive sentencing claim and
modified Grist’s sentences to those imposed after the first trial. State v. Grist, 152 Idaho 786,
795, 275 P.3d 12, 21 (Ct. App. 2012).
       In June 2012, Grist filed a pro se petition for post-conviction relief alleging several
claims. First, he contended his right to due process was violated by the empaneling of a juror at
his second trial who knew Grist prior to trial and had worked with the victim’s mother. He also
contended his right to due process was violated by the district court “allowing and using an
outdated [PSE] that was ordered and prepared in violation of the petitioner’s 5th and 6th
Amendment rights.” Specifically, he contended he was not advised by counsel when his PSE
was conducted that he could refuse to participate, a requirement of effective assistance as set
forth in Estrada v. State, 143 Idaho 558, 564-65, 149 P.3d 833, 838-39 (2006).              He also
contended his trial counsel at the second trial was ineffective because, while counsel filed an
Idaho Criminal Rule 35 motion for reduction of sentence, he failed to raise what Grist identified
as a meritorious issue in the motion. The State filed a motion for summary dismissal, which the
district court granted as to the juror and Rule 35 claims. The district court denied the motion for
summary dismissal “with respect to the claim addressing whether trial counsel was ineffective
regarding the advice given to [Grist] with respect to the [PSE] relied upon by the Court at
sentencing.”    Following an evidentiary hearing, the district court denied Grist’s claim,

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determining that, although counsel rendered deficient performance by failing to object to the use
of the PSE at Grist’s second sentencing, Grist had not established that absent this deficiency the
outcome of the sentencing would have been different. Grist now appeals.
                                                 II.
                                   STANDARD OF REVIEW
       On appeal from an order of summary dismissal, we apply the same standards utilized by
the trial courts and examine whether the petitioner’s admissible evidence asserts facts which, if
true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925,
929 (2010); Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). Over
questions of law, we exercise free review. Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066,
1069 (2009); Downing v. State, 136 Idaho 367, 370, 33 P.3d 841, 844 (Ct. App. 2001).
        When reviewing a decision denying post-conviction relief after an evidentiary hearing,
an appellate court will not disturb the lower court’s factual findings unless they are clearly
erroneous. I.R.C.P. 52(a); Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990).
The credibility of the witnesses, the weight to be given to their testimony, and the inferences to
be drawn from the evidence are all matters solely within the province of the district court.
Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). In order to prevail in a
post-conviction proceeding, the petitioner must prove the allegations by a preponderance of the
evidence. I.C. § 19-4907; Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990). We
exercise free review of the district court’s application of the relevant law to the facts. Nellsch v.
State, 122 Idaho 426, 434, 835 P.2d 661, 669 (Ct. App. 1992).
                                                III.
                                           ANALYSIS
       A petition for post-conviction relief initiates a proceeding that is civil in nature. I.C.
§ 19-4907; Rhoades, 148 Idaho at 249, 220 P.3d at 1068; 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

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claim that would suffice for a complaint under I.R.C.P. 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 why such supporting evidence is not included with the petition. I.C.
§ 19-4903.
A.      Summary Dismissal
        As noted above, the district court granted the State’s motion for summary dismissal as to
Grist’s claims regarding the allegedly biased juror and regarding counsel’s failure to file a
meritorious Rule 35 motion. Idaho Code section 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.   Summary dismissal of a petition pursuant to I.C. § 19-4906 is the procedural
equivalent of summary judgment under I.R.C.P. 56. A claim for post-conviction relief will be
subject to summary dismissal if the petitioner has not presented evidence making a prima facie
case as to each essential element of the claims upon which the petitioner bears the burden of
proof. DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary
dismissal is permissible when the petitioner’s evidence has raised no genuine issue of material
fact that, if resolved in the petitioner’s favor, would entitle the petitioner to the requested relief.
If such a factual issue is presented, an evidentiary hearing must be conducted. Goodwin, 138
Idaho at 272, 61 P.3d at 629.
        Pursuant to I.C. § 19-4906(b), the district court may sua sponte dismiss a petitioner’s
post-conviction claims if the court provides the petitioner with notice of its intent to do so, the
ground or grounds upon which the claim is to be dismissed, and twenty days for the petitioner to
respond. However, under I.C. § 19-4906(c), if the State files and serves a properly supported
motion to dismiss, further notice from the court is ordinarily unnecessary if the court dismisses
on the same grounds contained in the State’s motion. Martinez v. State, 126 Idaho 813, 817, 892
P.2d 488, 492 (Ct. App. 1995). If the State has filed a motion for summary disposition, but the
court dismisses the petition on grounds different from those asserted in the State’s motion, it
does so on its own initiative and the court must provide twenty days’ notice. Saykhamchone v.
State, 127 Idaho 319, 322, 900 P.2d 795, 798 (1995). This is so because if the district court
dismisses on grounds not contained in the State’s motion, the petitioner has no opportunity to
respond and attempt to establish a material issue of fact. See Baxter v. State, 149 Idaho 859, 865,

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243 P.3d 675, 681 (Ct. App. 2010). When the district court summarily dismisses a post-
conviction petition relying in part on the same grounds presented by the State in its motion for
summary dismissal, the notice requirement has been met. Kelly v. State, 149 Idaho 517, 523, 236
P.3d 1277, 1283 (2010).
        1.     Juror bias
       Grist contends the district court erred by granting the State’s motion for summary
dismissal in regard to his claim that his right to due process was violated by the empaneling of a
juror at his second trial who knew Grist and the victim’s mother because the district court
dismissed the claim on a ground not raised by the State--that the issue could have been raised on
direct appeal and was therefore waived on post-conviction. He also argues that even if he had
the requisite notice, the district court incorrectly concluded that the issue could have been raised
below and applied an incorrect standard of review in addressing the issue.
       We need not discuss the correctness of this basis for summary dismissal because the
district court included an alternate basis for dismissal which was also advanced by the State in its
motion for summary dismissal. In its motion to dismiss, the State contended that Grist’s due
process claim was without merit because the juror did not fit within a category set forth by I.C.
§ 19-2020. That section allows a challenge for implied bias where, among other things, the juror
has a relationship of “consanguinity or affinity within the fourth degree” with the victim or
defendant, has a relationship of control or authority over the victim or defendant, or “ha[s]
formed or expressed an unqualified opinion or belief that the prisoner is guilty or not guilty of
the offense charged.” The State then cited to State v. Yager, 139 Idaho 680, 688-89, 85 P.3d
656, 664-65 (2004), for the proposition that when a juror states he can put aside his personal
experience or opinion, the court will not dispute it. Finally, the State discussed the fact that the
juror in Grist’s case did not have a relationship that automatically disqualified him; that he was
only an acquaintance of Grist and the victim’s mother; and that even after being thoroughly
questioned by the State and defense counsel at voir dire, he did not express any biased opinions
and affirmed that nothing would prevent him from being impartial.
       In its order partially granting the State’s motion for summary dismissal, the district court,
in addition to stating that the issue could have been pursued on direct appeal, went on to discuss
the fact that the juror was only a past acquaintance of Grist and the victim’s mother and had very
indirect contact with them. The court set forth an excerpt from Yager, 139 Idaho at 688-89, 85

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P.3d at 664-65, including language that, although not dispositive, a trial judge is entitled to rely
on assurances from venire persons concerning partiality or bias and that a challenge for cause is
to be decided within the trial court’s discretion. The district court further noted that the juror in
question had repeatedly stated that he did not have a bias as a result of having worked at the
same business as the victim’s mother and noted the fact that the juror was “fully examined
during voir dire.” There is no substantial difference between the court’s discussion in this regard
and that set forth by the State in its motion for summary dismissal; thus, the district court
dismissed on a ground that was set forth by the State, fulfilling the requisite notice requirement. 1
See Kelly, 149 Idaho at 523, 236 P.3d at 1283. Accordingly, the district court did not err by
granting the State’s motion for summary dismissal of this issue.
        2.      Failure to file meritorious Rule 35 motion
        Grist also contends the district court erred by summarily dismissing his claim that
counsel rendered ineffective assistance by failing to file a meritorious Rule 35 motion, arguing
the district court dismissed the claim on grounds not cited by the State and without giving him
the requisite twenty days’ notice and the opportunity to respond. The district court dismissed
this claim on the basis that Grist did not show counsel’s failure to file a meritorious motion was
prejudicial as he did not “show there was any evidence that his counsel could have presented in
support of a Rule 35 motion that would have created a reasonable likelihood th[e] Court would
have reduced or modified [his] sentence.” As Grist points out, and the State does not dispute, the
State did not specifically reference this claim in its motion for summary dismissal and
memorandum in support. However, the State contends that its statement in the motion for
summary dismissal that Grist’s petition “presents no genuine issue of material fact” and in the
accompanying memorandum that Grist’s “claims fail because there was . . . no deficient or
prejudicial conduct by counsel” provided sufficient notice for the court’s eventual dismissal of
the claim on the latter basis.
        Because a post-conviction proceeding is governed by the Idaho Rules of Civil Procedure,
a motion for summary dismissal filed pursuant to I.C. 19-4906(c) must state the grounds for
dismissal with particularity, as set forth in I.R.C.P. 7(b)(1). DeRushé, 146 Idaho at 601, 200
P.3d at 1150. The level of particularity is sufficient if the other party cannot assert surprise or

1
        Because Grist does not challenge the merits of this basis for summary dismissal of his
juror bias claim, we need not further address it.
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prejudice. Id. For example, to prevail on an ineffective assistance of counsel claim, a 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). However, reasonable particularity only
requires pointing out that there is a lack of evidence showing deficient performance or prejudice.
See DeRushé, 146 Idaho at 601-02, 200 P.3d at 1150-51. It does not require explaining what
further evidence is necessary to substantiate a petitioner’s claim. Id. at 602, 200 P.3d at 1151. If
a petitioner believes the grounds for dismissal alleged by the State in its motion for summary
dismissal are insufficient, he or she must object in the court below. Kelly, 149 Idaho at 522 n.1,
236 P.3d at 1282 n.1. A petitioner for post-conviction relief cannot challenge the sufficiency of
the State’s grounds for dismissal for the first time on appeal. DeRushé, 146 Idaho at 602, 200
P.3d at 1151. However, a petitioner may assert for the first time on appeal that his or her post-
conviction claims were dismissed without any notice at all. Kelly, 149 Idaho at 522, 236 P.3d at
1282.
        Grist argues that because the State’s motion and memorandum in support of summary
dismissal did not specifically address his ineffective assistance of counsel claim, he did not
receive notice required when the State moves for summary dismissal pursuant to I.C. § 19-
4906(c). Pursuant to Idaho Supreme Court precedent, however, this is not the case. In Kelly,
149 Idaho 517, 236 P.3d 1277, the appellant argued, among other things, that he received no
notice regarding the summary dismissal of his claim that counsel was ineffective for failing to
file a motion to suppress because that claim was not specifically addressed in the State’s
memorandum accompanying its motion for summary dismissal of his petition. This Court
agreed with Kelly, determining that even under the relaxed notice standards of DeRushé, Kelly
had not received any notice in regard to this claim because the State’s memorandum never
mentioned the failure to file a suppression motion and therefore, he could challenge the lack of
notice for the first time on appeal. Kelly v. State, Docket No. 33773 (Ct. App. April 13, 2009)
(unpublished). The Idaho Supreme Court disagreed, determining Kelly received at least some
notice in the State’s motion for summary dismissal, which included a generic statement seeking
dismissal of all claims on the ground that Kelly “has no evidentiary basis to support his claims”;
set forth the two-pronged test for ineffective assistance established in Strickland, 466 U.S. 668;
and cited to State v. Chapman, 120 Idaho 466, 816 P.2d 1023 (Ct. App. 1991) for the proposition

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that Kelly had the burden of identifying acts or omissions of counsel that did not arise as a result
of reasonable professional judgment. Kelly, 149 Idaho at 522, 236 P.3d at 1282. “Clearly,” the
Court determined, “the State’s [motion for summary dismissal] gave Kelly notice of the ground
on which this claim was dismissed, irrespective of whether that notice was sufficient (an issue
Kelly waived by failing to raise it before the district court) it was notice nonetheless.” Id.
       Here, although not specifically referencing Grist’s contention that counsel was ineffective
for failing to file a meritorious Rule 35 motion, the State’s motion and memorandum identified
two grounds for dismissal--failure to set forth an issue of material fact and failure to show
deficient or prejudicial conduct by counsel--applicable to the issue. The district court then
specifically granted the motion on the basis Grist had not shown prejudice. Because the State set
forth these two (albeit general) grounds for dismissal, pursuant to Kelly, Grist cannot claim that
there was no notice of the grounds on which his ineffective assistance of counsel claim would be
dismissed and cannot raise the sufficiency of the notice for the first time on appeal. The district
court did not err by granting the State’s motion for summary dismissal of this claim.
B.     Dismissal Following Evidentiary Hearing
       With regard to Grist’s claim concerning the PSE, which the district court dismissed
following the evidentiary hearing, Grist contends the district court erred by not analyzing his
claim as an independent Fifth Amendment violation in addition to a Sixth Amendment
ineffective assistance of counsel claim. In his post-conviction petition, Grist stated that “his right
to due process as found under the 5th Amendment and his right to effective assistance of counsel
as found under the 6th Amendment” were violated by the Court’s use of an “outdated [PSE] that
was ordered by the court and prepared in violation of the 5th Amendment right to be free from
self-incrimination.” Aside from this assertion, the balance of Grist’s argument is largely focused
on the ineffective assistance claim. Additionally, Grist never objected to the district court’s
failure to address a specific, stand-alone Fifth Amendment claim, even after the court explicitly
limited the scope of the evidentiary hearing to the Sixth Amendment issue and issued a dismissal
of only that claim following the hearing.
       If we accept Grist’s assertion for the purposes of argument that he properly raised a
separate Fifth Amendment claim and the district court erred by failing to address it, we
nonetheless affirm the dismissal of the claim on an alternate basis. Dismissal of the claim was
appropriate because to show a violation of the Fifth Amendment right against self-incrimination,

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a defendant must show that he actually asserted the right. See State v. Person, 145 Idaho 293,
297, 178 P.3d 658, 662 (Ct. App. 2007) (holding the defendant’s failure to assert the privilege in
regard to the use of suppressed statements in his PSI, and his reiteration of his version of the
crime to the PSI investigator, was fatal to his Fifth Amendment claim); State v. Curless, 137
Idaho 138, 143, 44 P.3d 1193, 1198 (Ct. App. 2002) (holding that the defendant’s failure to
assert the Fifth Amendment during a PSE precluded him from asserting the privilege on appeal).
Grist never alleges or proves that he asserted his privilege or that he was threatened with penalty
if he did not participate. Thus, Grist did not prove this allegation by a preponderance of the
evidence and dismissal was appropriate. I.C. § 19-4907. 2
                                                 IV.
                                          CONCLUSION
       Grist received the requisite notice in regard to his claim of juror bias, and therefore the
district court did not err by granting the State’s motion for summary dismissal of this claim. He
received at least some notice regarding his claim that counsel was ineffective for failing to file a
meritorious Rule 35 motion and may not challenge the sufficiency of that notice for the first time
on appeal. Finally, even assuming Grist properly raised an independent Fifth Amendment claim
regarding his participation in the PSE, the district court did not err by denying the claim because
Grist did not assert the requisite facts (that he exercised his right) to sustain a Fifth Amendment
violation. The district court’s order partially granting the State’s motion for summary dismissal
and judgment denying Grist post-conviction relief following an evidentiary hearing are affirmed.
       Judge GRATTON CONCURS.




2
        Grist contends that a vacation of the district court’s denial of relief is required pursuant to
DeRushé v. State, 146 Idaho 599, 603-04, 200 P.3d 1148, 1152-53 (2008), where the Supreme
Court vacated the district court’s summary dismissal of DeRushé’s post-conviction claim upon
determining that the district court erred by analyzing his claim of a Fifth Amendment violation
only as a Sixth Amendment ineffective assistance of counsel claim. DeRushé does not dictate
the outcome here. There, the Supreme Court vacated the summary dismissal because DeRushé
had alleged admissible facts showing that his counsel denied him the right to testify in his own
behalf. By contrast, here we are analyzing the issue following an evidentiary hearing and affirm
the district court’s dismissal on an alternate basis. Abbott v. State, 129 Idaho 381, 385, 924 P.2d
1225, 1229 (Ct. App. 1996) (holding that if an order of the trial court is incorrect on a particular
theory, but is supported by an alternative legal theory, the appellate court may uphold the trial
court’s decision).
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       Judge LANSING, SPECIALLY CONCURRING
       I concur in the foregoing opinion. I write separately to make some suggestions to the
trial court and to the attorney who represented Grist in the district court that could avoid the need
for similar appeals in the future.
       To the district court’s credit in the present case, the court issued an opinion that set forth
the basis for dismissal of each of Grist’s claims, with citations to applicable authority and
references to the evidence, or to omissions in the evidence. Most of the present appellate
challenge to the summary dismissal order could have been prevented if the district court had
presented this detailed opinion as a notice of intent to dismiss and allowed Grist twenty days to
respond before the court entered its dismissal order. It would have entailed no significant
additional effort for the court and could have insulated the court’s order from attack on appeal on
the basis of lack of notice. Therefore, I suggest that our district judges consider employing such
a procedure.
       I would also point out to Grist’s counsel--and to all attorneys who represent post-
conviction petitioners in the trial court--that when you believe a post-conviction action was
dismissed without adequate notice, rather than taking an immediate appeal it would ordinarily be
much more expedient for the petitioner to file a motion in the district court for relief from the
judgment under Idaho Rule of Civil Procedure 59(e). With such a motion, Grist could have
presented any additional evidence and legal argument that he might deem appropriate to contest
the grounds relied upon by the district court. This procedure could have eliminated several of
the issues raised on this appeal.




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