               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 45232

MARCOS AYALA-JIMENEZ,                           )
                                                )    Filed: March 7, 2019
       Petitioner-Appellant,                    )
                                                )    Karel A. Lehrman, Clerk
v.                                              )
                                                )    THIS IS AN UNPUBLISHED
STATE OF IDAHO,                                 )    OPINION AND SHALL NOT
                                                )    BE CITED AS AUTHORITY
       Respondent.                              )
                                                )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho,
       Gooding County. Hon. John K. Butler, District Judge.

       Order denying petition for post-conviction relief, affirmed.

       Marcos Ayala-Jimenez, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

BRAILSFORD, Judge
       Marcos Ayala-Jimenez appeals from the district court’s order denying his petition for
post-conviction relief following an evidentiary hearing. We affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       In 2016, Ayala-Jimenez pled guilty to felony driving under the influence (DUI), in
violation of Idaho Code §§ 18-8004, 18-8005(6), in Gooding County (Gooding case). The
district court imposed a sentence of five years indeterminate. Further, the district court ordered
this sentence to run consecutively with Ayala-Jimenez’s sentence in a prior DUI case in Jerome
County (Jerome case). Because Ayala-Jimenez’s Gooding case violated his probation in his
Jerome case, the district court in the Jerome case revoked Ayala-Jimenez’s probation and
modified his sentence to five years with one year determinate.



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       Ayala-Jimenez filed a pro se petition for post-conviction relief in the Gooding case.
After he was appointed post-conviction counsel, Ayala-Jimenez filed an amended petition for
post-conviction relief, claiming his appointed trial counsel was ineffective. The crux of Ayala-
Jimenez’s petition is that his appointed trial counsel in the Gooding case did not explain to him
that his sentence in the Gooding case could run consecutively (versus concurrently) with his
sentence in the Jerome case and what that meant.
       The district court held an evidentiary hearing to determine whether Ayala-Jimenez’s trial
counsel was ineffective for not explaining the difference between consecutive and concurrent
sentencing and for failing to inform Ayala-Jimenez that he could be subject to consecutive
sentencing. Both Ayala-Jimenez and his trial counsel testified at the hearing. Thereafter, the
district court entered “Findings of Fact and Conclusions of Law,” denying Ayala-Jimenez’s
amended petition for post-conviction relief. Ayala-Jimenez timely appeals.
                                                 II.
                                           ANALYSIS
       A claim of ineffective assistance of counsel may properly be brought under the Uniform
Post-Conviction Procedure Act. Barcella v. State, 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct.
App. 2009). To prevail on an ineffective assistance of counsel claim, the petitioner must show
that the attorney’s performance was deficient and that the petitioner was prejudiced by the
deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Self v. State, 145 Idaho 578,
580, 181 P.3d 504, 506 (Ct. App. 2007). To establish a deficiency, the petitioner 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); Knutsen v. State, 144 Idaho
433, 442, 163 P.3d 222, 231 (Ct. App. 2007). Where, as here, the petitioner was convicted upon
a guilty plea, to satisfy the prejudice element, the petitioner must show that there is a reasonable
probability that, but for the attorney’s errors, he would not have pled guilty and would have
insisted on going to trial. Plant v. State, 143 Idaho 758, 762, 152 P.3d 629, 633 (Ct. App. 2006).
       On review of an order denying post-conviction relief after an evidentiary hearing, the trial
court’s determination that the petitioner has not met his burden of proof is entitled to great
weight, and a finding that the petitioner has failed to prove his claims will not be set aside unless
that finding is clearly erroneous. Murray v. State, 156 Idaho 159, 164, 321 P.2d 709, 714 (Ct.
App. 2014); Sanders v. State, 117 Idaho 939, 940, 792 P.2d 964, 965 (Ct. App. 1990). The

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credibility of the witnesses, the weight given to their testimony, and the inferences drawn from
the evidence are all matters solely within the district court’s province. Larkin v. State, 115 Idaho
72, 73, 764 P.2d 439, 440 (Ct. App. 1988).
       Ayala-Jimenez contends the district court erred in denying his amended petition for post-
conviction relief. He asserts that his trial counsel never explained the terms and conditions of the
plea agreement in the Gooding case, and thus Ayala-Jimenez claims his guilty plea in the
Gooding case was not knowing, intelligent, and voluntary. Addressing these arguments, the
district court concluded that “it is clear that [trial counsel] advised [Ayala-Jimenez] as to the
possibility his sentences would be ordered to be served consecutively” and “informed [Ayala-
Jimenez] that this meant he would have to serve his sentence in the Jerome case before serving
his sentence in the Gooding case.”       Based on these conclusions, the district court further
concluded that Ayala-Jimenez failed to show trial counsel’s “representation fell below an
objection standard of reasonableness.”
       The district court did not err in reaching this conclusion. During the evidentiary hearing,
trial counsel indicated he had discussed concurrent versus consecutive sentencing with Ayala-
Jimenez before he pled guilty. On direct examination, trial counsel testified as follows:
               Q. Okay. [Ayala-Jimenez] has made allegations that he wasn’t probably
       advised regarding the nature and extent of accepting a plea agreement. Did you, to
       your memory, properly advise him about a plea agreement?
               A. Yes. I specifically remember this case. I’ll tell you what I did. I used
       the interpreter. We met in the courtroom. I told him what my thoughts [were] on
       their offer, especially when I found out that he had a probation violation out of
       Jerome County.
               ....
               Q. Did you ever discuss concurrent or consecutive with [Ayala-Jimenez]?
               A. When I was telling him what I thought would happen to him, as
       painting a bleak picture, I told him that the Court could very well make it a
       consecutive, meaning he’d have to serve his first sentence first. [Those were] my
       exact words to him.
               Q. Okay. And then did you explain to him what would happen regarding
       his second sentence if that happened?
               A. Yeah. And then he would have to serve his first sentence before he
       would start serving his fixed sentence.
Additionally, during Ayala-Jimenez’s plea hearing, trial counsel informed the district court that
he advised Ayala-Jimenez that counsel wanted to further investigate Ayala-Jimenez’s pending
probation violation in the Jerome case; Ayala-Jimenez, however, wanted to enter a plea instead:


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       And for the record, Your Honor, I told [Ayala-Jimenez] [the plea agreement] was
       not binding on the Court. He had informed me that there, I think, is a pending
       probation violation before this Court in Jerome. I’ve told him I wanted to look
       into that further, but he told me he wanted to enter a plea today, so I’m doing that
       with that knowledge.
       During the evidentiary hearing, Ayala-Jimenez gave testimony that conflicted with trial
counsel’s testimony, but the district court found that “[trial counsel’s] testimony regarding
discussions on concurrent vs. consecutive sentencing, and not [Ayala-Jimenez’s] is credible.”
This Court will not substitute its view for that of the district court’s as to the credibility of the
witnesses, the weight given to their testimony, and the reasonable inferences drawn from the
evidence. See State v. Flowers, 131 Idaho 205, 207, 953 P.2d 645, 647 (Ct. App. 1998). Having
found trial counsel more credible, the district court did not err by concluding Ayala-Jimenez was
advised regarding the possibility of consecutive sentences.
                                                   IV.
                                          CONCLUSION
       Ayala-Jimenez has failed to demonstrate his trial counsel’s representation fell below an
objective standard of reasonableness. As a result, Ayala-Jimenez did not meet his burden of
proving ineffective assistance of counsel, and the district court’s order denying Ayala-Jimenez’s
petition for post-conviction relief is affirmed.
       Chief Judge GRATTON and Judge LORELLO CONCUR.




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