               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 43371

BRADLEY JOSEPH VANZANT,                          )    2016 Unpublished Opinion No. 521
                                                 )
       Petitioner-Appellant,                     )    Filed: May 5, 2016
                                                 )
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STATE OF IDAHO,                                  )    THIS IS AN UNPUBLISHED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. Gerald F. Schroeder, District Judge. Hon. Kevin Swain,
       Magistrate.

       Order of the district court, on intermediate appeal from the magistrate, affirming
       order summarily dismissing petition for post-conviction relief, affirmed.

       Alan Trimming, Ada County Public Defender; Adam Kimball, Deputy Appellate
       Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

MELANSON, Chief Judge
       Bradley Joseph Vanzant appeals from the district court’s order affirming the magistrate’s
summary dismissal of Vanzant’s petition for post-conviction relief. For the reasons set forth
below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       Vanzant was charged with domestic battery in the presence of a child and, in a separate
case, driving without privileges. Vanzant’s trial was set for May 2, 2013. However, on the day
of trial, the magistrate held a hearing and reset the trial because the magistrate was in the second
day of another trial and because Vanzant’s defense counsel was unavailable. On May 23,


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Vanzant entered into a plea agreement in which he pled guilty to an amended charge of
intentional destruction of a telecommunication line or telecommunication instrument.
I.C. § 18-6810. The driving without privileges charge was dismissed. Vanzant later learned that
his defense counsel was unavailable on May 2 because she was arrested for driving under the
influence of alcohol (DUI) on the morning of his trial. Vanzant filed a motion to withdraw his
guilty plea, which was denied. Vanzant appealed and the denial of his motion was affirmed by
the district court.
        Vanzant filed a petition for post-conviction relief alleging ineffective assistance of
counsel. Vanzant claimed that his trial counsel’s assistance was ineffective as a result of her
pending DUI charge and also alleged that his trial counsel failed to investigate medical records
that could have been used to provide a defense. The magistrate dismissed Vanzant’s petition,
holding that his ineffective assistance of counsel claim was raised on direct appeal and could not
be relitigated in his post-conviction proceeding. Vanzant appealed and the district court held that
Vanzant’s ineffective assistance of counsel claim was not considered on direct appeal and,
therefore, could be raised in his post-conviction petition. The district court addressed the merits
of Vanzant’s post-conviction petition, holding that Vanzant’s claims were conclusory and that he
failed to show that he was prejudiced by his counsel’s pending criminal charges. Accordingly,
the district court affirmed the magistrate’s summary dismissal of Vanzant’s petition for
post-conviction relief. Vanzant again appeals.
                                                 II.
                                   STANDARD OF REVIEW
        For an appeal from the district court, sitting in its appellate capacity over a case from the
magistrate division, this Court’s standard of review is the same as expressed by the Idaho
Supreme Court. The Supreme Court reviews the magistrate record to determine whether there is
substantial and competent evidence to support the magistrate’s findings of fact and whether the
magistrate’s conclusions of law follow from those findings. Pelayo v. Pelayo, 154 Idaho 855,
858-59, 303 P.3d 214, 217-18 (2013). If those findings are so supported and the conclusions
follow therefrom, and if the district court affirmed the magistrate’s decision, we affirm the
district court’s decision as a matter of procedure. Id. Thus, the appellate courts do not review




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the decision of the magistrate. Bailey v. Bailey, 153 Idaho 526, 529, 284 P.3d 970, 973 (2012).
Rather, we are procedurally bound to affirm or reverse the decision of the district court. Id.
       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 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. In other words, the petition must present or be
accompanied by admissible evidence supporting its allegations or the petition will be subject to
dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011).
       Idaho Code Section 19-4906 authorizes summary dismissal of a petition for
post-conviction relief, either pursuant to a motion by a party or upon the court’s own initiative, if
it appears from the pleadings, depositions, answers to interrogatories, and admissions and
agreements of fact, together with any affidavits submitted, that there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. When considering
summary dismissal, the district court must construe disputed facts in the petitioner’s favor, but
the court is not required to accept either the petitioner’s mere conclusory allegations,
unsupported by admissible evidence, or the petitioner’s conclusions of law. Roman v. State, 125
Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994); Baruth v. Gardner, 110 Idaho 156, 159, 715
P.2d 369, 372 (Ct. App. 1986). Moreover, the district court, as the trier of fact, is not constrained
to draw inferences in favor of the party opposing the motion for summary disposition; rather, the
district court is free to arrive at the most probable inferences to be drawn from uncontroverted
evidence. Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). Such


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inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify
them. Id.
       Claims may be summarily dismissed if the petitioner’s allegations are clearly disproven
by the record of the criminal proceedings, if the petitioner has not presented evidence making a
prima facie case as to each essential element of the claims, or if the petitioner’s allegations do
not justify relief as a matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281
(2010); DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary
dismissal of a claim for post-conviction relief is appropriate when the court can conclude, as a
matter of law, that the petitioner is not entitled to relief even with all disputed facts construed in
the petitioner’s favor. For this reason, summary dismissal of a post-conviction petition may be
appropriate even when the state does not controvert the petitioner’s evidence. See Roman, 125
Idaho at 647, 873 P.2d at 901.
       Conversely, if the petition, affidavits, and other evidence supporting the petition allege
facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be
summarily dismissed. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004);
Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). If a genuine issue of
material fact is presented, an evidentiary hearing must be conducted to resolve the factual issues.
Goodwin, 138 Idaho at 272, 61 P.3d at 629.
       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, 146 Idaho at 104, 190 P.3d at 923. Over questions of law, we exercise free
review. Rhoades, 148 Idaho at 250, 220 P.3d at 1069; Downing v. State, 136 Idaho 367, 370, 33
P.3d 841, 844 (Ct. App. 2001).
                                                 III.
                                            ANALYSIS
       Vanzant alleges that the magistrate erred in summarily dismissing his petition for
post-conviction relief because he raised a genuine issue of material fact with regard to ineffective
assistance of his trial counsel. Thus, Vanzant alleges the district court erred in affirming the
magistrate. A claim of ineffective assistance of counsel may properly be brought under the


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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 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); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221,
224 (Ct. App. 1995). 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). To establish prejudice, the petitioner must
show a reasonable probability that, but for the attorney’s deficient performance, the outcome
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).
A.     Deficient Performance
       Vanzant alleges a number of instances of deficient performance by his trial counsel.
Vanzant alleges his trial counsel was not prepared to proceed on the day scheduled for Vanzant’s
trial because trial counsel had been arrested for DUI on the morning of the trial. Vanzant also
alleges that his trial counsel failed to investigate medical records that could have been used to
provide a defense. Vanzant alleges that his trial counsel was ineffective when she had another
attorney appear in her place without first consulting Vanzant. Finally, Vanzant alleges that his
trial counsel was ineffective for failing to discuss with Vanzant a potential conflict of interest.
Based upon these allegations and the record before us, we hold that Vanzant raised a genuine
issue of material fact regarding his trial counsel’s deficient performance.
B.     Prejudice
       Vanzant alleges that, had he known about his counsel’s criminal charges, he would have
terminated his trial counsel’s representation. Accordingly, Vanzant alleges:
       This would have led to a different outcome of the proceeding as Vanzant would
       have retained alternative counsel. With alternative counsel, Vanzant believes that
       the errors above would have been rectified and he would have rejected the plea
       agreement and insisted on going to trial.




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       Where, as here, a petitioner was convicted upon a guilty plea, to satisfy the prejudice
element, he or she must show that there is a reasonable probability that, but for counsel’s errors,
he or she would not have pled guilty and would have insisted on going to trial. Keserovic v.
State, 158 Idaho 234, 239, 345 P.3d 1024, 1029 (Ct. App. 2015). In order to obtain relief, a
petitioner must show that a decision to reject the plea bargain would have been rational under the
circumstances. Id.
       Despite Vanzant’s retrospective claim, this Court is not convinced that Vanzant would
have rejected the favorable plea offer or that it would have been rational under the circumstances
to do so.   Vanzant faced two serious charges--domestic battery in the presence of a child and
driving without privileges, a third offense. The state agreed to amend the battery charge to
intentional destruction of a telecommunication instrument or line and dismissed the driving
without privileges charge. In addition, the state agreed to waive fines and recommend a sentence
of unsupervised probation. Vanzant has not shown that it would have been rational for him to
proceed to trial on the charges of domestic battery in the presence of a child and driving without
privileges charge rather than accept the plea offer to a single, lesser offense along with the
sentencing recommendation of unsupervised probation. Accordingly, Vanzant has failed to meet
his burden of showing that he was prejudiced by his counsel’s deficient performance.
                                                IV.
                                         CONCLUSION
       Vanzant raised a genuine issue of material fact with regard to his trial counsel’s deficient
performance. However, Vanzant has not shown that he was prejudiced by the deficiency.
Therefore, the district court’s order, affirming the magistrate’s summary dismissal of Vanzant’s
petition for post-conviction relief, is affirmed. No costs or attorney fees are awarded on appeal.
       Judge GUTIERREZ and Judge HUSKEY, CONCUR.




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