               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 40549

RONALD JOHN HUNTSMAN, SR.,                      )     2014 Unpublished Opinion No. 537
                                                )
       Petitioner-Appellant,                    )     Filed: May 30, 2014
                                                )
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STATE OF IDAHO,                                 )     THIS IS AN UNPUBLISHED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. Timothy L. Hansen, District Judge.

       Order summarily dismissing petition for post-conviction relief, affirmed.

       Greg S. Silvey, Star, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent. Lori A. Fleming argued.
                 ________________________________________________
GRATTON, Judge
       Ronald John Huntsman, Sr. appeals from the summary dismissal of his petition for post-
conviction relief. We affirm.
                                               I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       We previously reviewed the circumstances of Huntsman’s criminal case in State v.
Huntsman, 146 Idaho 580, 582-83, 199 P.3d 155, 157-58 (Ct. App. 2008):
              The evidence presented at trial was that in March 2005, Huntsman and
       Larry Hanslovan kidnapped Kyle Quinton and Becky Boden and took them to
       Barbara Dehl’s residence, where the three bound Quinton and Boden with
       packing tape, beat them, and questioned them about jewelry that Dehl claimed
       was missing from a safe in her house. During the incident, someone implicated
       John Schmeichel in the theft of the jewelry. Hanslovan and Huntsman then
       released Quinton from the restraints and took him to find Schmeichel.
              When the parties arrived at the residence where Schmeichel was staying,
       Hanslovan and Huntsman confronted him about the allegedly stolen property.
       Subsequently, Schmeichel left with them in Hanslovan’s vehicle. While they


                                               1
were driving back to Dehl’s residence, Huntsman turned around from his position
in the front passenger seat and shot Schmeichel in the face with a .38 caliber
revolver, killing him. When they reached Dehl’s residence, Hanslovan and
Huntsman enlisted Quinton’s help in removing the body from the vehicle and
wrapping it in trash bags and a tarp. A day or two later, Huntsman and Hanslovan
drove to Elmore County where they and two other individuals dug a shallow
grave and buried Schmeichel’s body.
         A grand jury indicted Huntsman on one count of first degree murder with
a sentence enhancement for using a firearm in the commission of the murder, and
two counts of kidnapping. In the same indictment, Hanslovan was charged with
two counts of kidnapping with firearm enhancements, and one count of trafficking
in methamphetamine, and Dehl was charged with two counts of kidnapping and
one count of trafficking in methamphetamine. After the court denied the
defendants’ motions for separate trials, but did allow the drug charges to be
severed, Huntsman and his co-defendants pled not guilty and trial was scheduled
to begin on October 11, 2005.
         At a hearing on September 30, 2005, Dehl and Hanslovan moved to
reschedule the trial for the purposes of continuing their investigation, and they
waived their speedy trial rights. The state joined in the motion, advising the court
that the previous day, one of its witnesses had turned over what was believed to
be the murder weapon. The state requested that the trial be rescheduled to
provide the parties the opportunity to investigate and test this newly discovered
evidence. Huntsman, however, objected to the continuance and declined to waive
his right to a speedy trial. The court granted the motion to continue as to Dehl
and Hanslovan, but denied the state’s request in regard to Huntsman, deciding that
there was not good cause to continue the trial in light of Huntsman’s assertion of
his statutory speedy trial rights.
         On October 6, the state filed a motion to dismiss the charges against
Huntsman without prejudice. After a hearing, the court granted the motion.
Several days later, a second indictment was filed charging Huntsman with the
same charges as he had initially faced. The state then moved to consolidate his
case with those of Hanslovan and Dehl. Huntsman opposed the motion, but it was
granted by the court. Trial was scheduled to begin on April 10, 2006--almost six
months after the second indictment had been filed.
         In January 2006, Huntsman filed a motion to dismiss, claiming that his
state and federal constitutional rights to a speedy trial had been intentionally
violated when the prosecution dismissed and re-filed the identical charges. The
district court never ruled on the motion and trial proceeded as scheduled--against
Huntsman alone as his co-defendants negotiated plea bargains.
         After a ten-day trial, the jury found Huntsman guilty as charged. The
district court entered a judgment of conviction and imposed a unified life sentence
with thirty years determinate for the first degree murder conviction and firearm
enhancement, and a concurrent unified sentence of twenty years with ten years
determinate for the kidnapping conviction.




                                         2
       Huntsman argued on appeal “that the district court erred by granting the state’s motion to
dismiss, that the dismissal without prejudice resulted in a violation of his due process rights, and
that the district court judge showed partiality by suggesting to the prosecution that it could
simply dismiss and re-file the charges against Huntsman.” Id. at 583, 199 P.3d at 158. This
Court affirmed explaining:
       Accordingly, where the court’s grant of the state’s motion to dismiss had the
       effect of terminating the criminal action against Huntsman in case number
       H0500555--and thus was an appealable order under I.A.R. 11(c)(4)--and
       Huntsman was aggrieved by the dismissal without prejudice, we conclude that
       Huntsman’s failure to appeal the dismissal and the judge’s actions in the initial
       case within forty-two days of the dismissal of that case or to pursue a motion to
       dismiss in the second case resulted in his appellate rights concerning case number
       H0500555 not being preserved.

Id. at 584, 199 P.3d at 159.
       Huntsman filed a post-conviction claim. A subsequent amended petition alleged that his
trial counsel was ineffective for failing to file a timely appeal from the dismissal of case number
H0500555 and for failing to pursue the speedy trial issue in case number H0501438 (the case in
which he was convicted). The petition alleged numerous other claims not relevant to this appeal.
The district court ultimately granted summary dismissal on both claims of ineffective assistance
of counsel. Huntsman timely appeals.
                                                II.
                                           ANALYSIS
        A petition for post-conviction relief initiates a civil, rather than criminal, proceeding
governed by the Idaho Rules of Civil Procedure. I.C. § 19-4907; State v. Yakovac, 145 Idaho
437, 443, 180 P.3d 476, 482 (2008). See also Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642,
646 (2008). Like plaintiffs in other civil actions, the petitioner must prove by a preponderance of
evidence the allegations upon which the request for post-conviction relief is based. Stuart v.
State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); 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, however, in that it must contain more than “a short and plain
statement of the claim” that would suffice for a complaint under I.R.C.P. 8(a)(1). State v. Payne,
146 Idaho 548, 560, 199 P.3d 123, 135 (2008); Goodwin, 138 Idaho at 271, 61 P.3d at 628. The
petition must be verified with respect to facts within the personal knowledge of the petitioner,


                                                 3
and affidavits, records, or other evidence supporting its allegations must be attached, or the
petition must state why such supporting evidence is not included. I.C. § 19-4903. In other
words, the petition must present or be accompanied by admissible evidence supporting its
allegations or it will be subject to dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169,
1172 (Ct. App. 2011); Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994).
       Idaho Code § 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.” I.C. § 19-4906(c). 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. Payne, 146 Idaho at
561, 199 P.3d at 136; Roman, 125 Idaho at 647, 873 P.2d at 901. Moreover, because the district
court rather than a jury will be the trier of fact in the event of an evidentiary hearing, the district
court is not constrained to draw inferences in the petitioner’s favor, but is free to arrive at the
most probable inferences to be drawn from the evidence. Yakovac, 145 Idaho at 444, 180 P.3d at
483; Wolf, 152 Idaho at 67, 266 P.3d at 1172; Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712,
714 (Ct. App. 2008). Such inferences will not be disturbed on appeal if the uncontroverted
evidence is sufficient to justify them. Chavez v. Barrus, 146 Idaho 212, 218, 192 P.3d 1036,
1042 (2008); Hayes, 146 Idaho at 355, 195 P.2d at 714; Farnsworth v. Dairymen’s Creamery
Ass’n, 125 Idaho 866, 868, 876 P.2d 148, 150 (Ct. App. 1994).
       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); McKay v. State, 148 Idaho 567, 570, 225 P.3d 700, 703 (2010); DeRushé v. State, 146
Idaho 599, 603, 200 P.3d 1148, 1152 (2009); Charboneau v. State, 144 Idaho 900, 903, 174 P.3d
870, 873 (2007); Berg v. State, 131 Idaho 517, 518, 960 P.2d 738, 739 (1998); Murphy v. State,
143 Idaho 139, 145, 139 P.3d 741, 747 (Ct. App. 2006); Cootz v. State, 129 Idaho 360, 368, 924
P.2d 622, 630 (Ct. App. 1996). Thus, summary dismissal of a claim for post-conviction relief is


                                                  4
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 Payne, 146 Idaho at 561, 199 P.3d at 136; 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);
Berg, 131 Idaho at 519, 960 P.2d at 740; Stuart v. State, 118 Idaho 932, 934, 801 P.2d 1283,
1285 (1990); Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008); Roman,
125 Idaho at 647, 873 P.2d at 901. If a genuine issue of material fact is presented, an evidentiary
hearing must be conducted to resolve the factual issues. Kelly, 149 Idaho at 521, 236 P.3d at
1281; Payne, 146 Idaho at 561, 199 P.3d at 136; 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); Berg, 131 Idaho at 519, 960 P.2d at 740; Sheahan, 146 Idaho at 104, 190 P.3d at
923; Roman, 125 Idaho at 647, 873 P.2d at 901. 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); Martinez v. State, 130 Idaho 530, 532, 944 P.2d
127, 129 (Ct. App. 1997).
A.     Post-Conviction Jurisdiction Over a Dismissed Case
       Huntsman alleged his trial counsel was ineffective for failing to file a timely appeal in his
dismissed case. The district court concluded it did not have jurisdiction to grant post-conviction
relief in a dismissed case because of the absence of a conviction. Whether a court lacks
jurisdiction is a question of law that may be raised at any time and over which this Court
exercises free review. State v. Jones, 140 Idaho 755, 757, 101 P.3d 699, 701 (2004). The district
court reasoned that it lacked jurisdiction because the Uniform Post-Conviction Procedure Act
makes remedies available to those who have “been convicted of, or sentenced for, a crime.” See
I.C. § 19-4901(a).    We agree that application of the UPCPA requires a conviction and/or




                                                5
sentence from which relief may be granted. The statute’s language is plain and unambiguous. 1
Because Huntsman was not convicted in the dismissed case, he was not entitled to a remedy
under the post-conviction statute.
       Huntsman argues that he is entitled to relief because but for his counsel’s failure to timely
file an appeal, the conviction in the subsequent case would not have occurred. Huntsman
essentially makes the same claim he made in his direct appeal. Huntsman argued that by refiling
the charges, the dismissed case was resurrected. We rejected this argument explaining:
       Common sense dictates that the granting of a motion to dismiss does, indeed,
       “terminate” a criminal action regardless of the prosecution’s subjective intent to
       re-file the charges--in such a circumstance a defendant is no longer facing
       charges, is no longer in “jeopardy,” and must be freed from incarceration. That
       such a proceeding is “resurrected” if identical charges are filed does not find any
       support in the rules, nor in our caselaw, and we will not read such an unsupported
       assertion into the appellate rules.

Huntsman, 146 Idaho at 584, 199 P.3d at 159. Similarly, Huntsman’s claim that a court has the
power to grant post-conviction relief in a dismissed case fails. The post-conviction statute
applies in cases where a defendant has been convicted.         This allows courts to review the
proceedings in which a defendant was convicted and provide an appropriate remedy. Where
charges are dismissed, the post-conviction statute is not implicated because there is no conviction
in that case. A defendant who is later prosecuted after a case is dismissed may seek relief for any
deficiencies that occurred in the case in which the conviction was obtained.
       Huntsman also argues that Article I, § 5 of the Idaho Constitution and common law
habeas corpus require a remedy regardless of whether there is a judgment of conviction in the
dismissed case. However, as the State points out, habeas corpus has been subsumed by the post-



1
        Other provisions of the Uniform Post-Conviction Procedure Act similarly make clear that
a court’s authority to grant post-conviction relief from an otherwise final criminal proceeding is
limited to criminal cases in which there was a conviction or sentence. See I.C. §§ 19-4902 (post-
conviction “proceeding is commenced by filing an application verified by the applicant with the
clerk of the district court in which the conviction took place”), 19-4903 (post-conviction
application must “identify the proceedings in which the applicant was convicted” and “give the
date of the entry of the judgment and sentence complained of”), 19-4907(a) (“[i]f the court finds
in favor of the applicant, it shall enter an appropriate order with respect to the conviction or
sentence in the former proceedings”). Nowhere in the statutory scheme is there any indication
that a court has jurisdiction to grant relief in a criminal case in which the charges have been
finally dismissed.

                                                6
conviction statute. See I.C. § 19-4901(b). 2 Thus, in order to be entitled to relief, a petitioner
must meet the requirements of the post-conviction statute, which requires a conviction.
Additionally, even assuming there was freestanding habeas corpus relief available apart from the
post-conviction statute, Huntsman would not be entitled to relief because he is not in custody
under the dismissed case. He is in custody under the refiled case. Those proceedings resulted in
his incarceration and are the means by which Huntsman is entitled to post-conviction review.
B.     Timeliness of Petition From the Dismissed Case
       The district court also dismissed Huntsman’s petition stemming from the dismissed case
as untimely. Our review of the district court’s construction and application of the limitation
statute is a matter of free review. Kriebel v. State, 148 Idaho 188, 190, 219 P.3d 1204, 1206 (Ct.
App. 2009). The statute of limitations for post-conviction actions provides that a petition 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. Gonzalez v. State, 139 Idaho 384, 385, 79 P.3d 743, 744
(Ct. App. 2003). The failure to file a timely petition is a basis for dismissal of the petition.
Kriebel, 148 Idaho at 190, 219 P.3d at 1206.
       The district court entered its order dismissing the prosecution against Huntsman in case
number H0500555 on October 7, 2005. Huntsman did not file a timely notice of appeal from the
order of dismissal, and his dismissal became final forty-two days later on November 18, 2005.
See State v. Johnson, 152 Idaho 41, 47, 266 P.3d 1146, 1152 (2011) (“A district court’s dismissal
of a criminal case is tantamount to a judgment and is final 42 days later, when the time for appeal
runs.”). Huntsman did not file his post-conviction petition until February 20, 2009. The refiling
of the criminal charges did not change the determination of when the statutory clock began. See
Huntsman, 146 Idaho at 583-84, 199 P.3d at 158-59 (the filing of charges did not resurrect the
dismissed case for purposes of calculating the timeliness of the appeal). Huntsman claims that
the statute of limitations period began after his direct appeal in case number H0501438. He



2
       “Except as otherwise provided in this act, it comprehends and takes the place of all other
common law, statutory, or other remedies heretofore available for challenging the validity of the
conviction or sentence. It shall be used exclusively in place of them.” Idaho Code § 19-4901(b).


                                                7
claims the failure of his counsel to timely appeal was not ripe until this Court declined to
consider the issues in his direct appeal in case number H0501438. However, Huntsman knew
that his attorney did not file an appeal in case number H0500555, and thus, his claim was ripe, if
at all, as soon as that case became final forty-two days after its dismissal. Even assuming the
district court could hear a post-conviction claim stemming from a dismissed case, Huntsman
failed to timely file the claim within the statute of limitations period.
C.     Right to a Speedy Trial
       The district court also summarily dismissed Huntsman’s claim of ineffective assistance of
counsel for failing to pursue the motion to dismiss in case number H0501438 based on his
speedy trial rights. 3 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). To establish prejudice, the
petitioner must show a reasonable probability that, but for the attorney’s deficient performance,
the outcome of the trial would have been different. Aragon, 114 Idaho at 761, 760 P.2d at 1177;
Knutsen, 144 Idaho at 442, 163 P.3d at 231. In a post-conviction proceeding challenging an
attorney’s failure to pursue a motion in the underlying criminal action, the district court may
consider the probability of success of the motion in question in determining whether the
attorney’s inactivity constituted ineffective assistance. Hoffman v. State, 153 Idaho 898, 904,
277 P.3d 1050, 1056 (Ct. App. 2012). Where the alleged deficiency is counsel’s failure to file a
motion, a conclusion that the motion, if pursued, would not have been granted by the trial court




3
       Additionally, Huntsman argues that the dismissal and refiling of the charges against him,
and the impartiality of the original judge, violated his due process rights. However, he did not
present these claims in the amended petition and thus, the arguments are not properly before this
Court. See State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992).

                                                   8
is generally determinative of both prongs of the Strickland test. Hoffman, 153 Idaho at 904, 277
P.3d at 1056.
       Huntsman alleges his trial counsel failed to pursue the motion to dismiss based on his
right to a speedy trial under the Sixth Amendment to the United States Constitution and Art. I,
§ 13 of the Idaho Constitution. Whether there was an infringement of a defendant’s right to
speedy trial presents a mixed question of law and fact. State v. Clark, 135 Idaho 255, 257, 16
P.3d 931, 933 (2000).       We will defer to the trial court’s findings of fact if supported by
substantial and competent evidence; however, we will exercise free review of the trial court’s
conclusions of law. Id. To determine if there is a speedy trial violation under either the United
States or Idaho Constitutions, the court employs the Barker balancing test. State v. Rodriquez-
Perez, 129 Idaho 29, 34, 921 P.2d 206, 211 (Ct. App. 1996) (citing Barker v. Wingo, 407 U.S.
514, 530 (1972)). The court weighs: (1) the length of the delay; (2) the reason for the delay;
(3) whether the defendant asserted the right to a speedy trial; and (4) the prejudice to the
defendant. State v. Risdon, 154 Idaho 244, 249, 296 P.3d 1091, 1096 (Ct. App. 2012) (citing
Barker, 407 U.S. at 530).
       1.       Length of delay
       The length of delay is a triggering mechanism.           Unless there is a delay that is
presumptively prejudicial, it is unnecessary to inquire into the other three factors. State v. Folk,
151 Idaho 327, 332, 256 P.3d 735, 740 (2011). Whether the delay is presumptively prejudicial
depends on the circumstances, nature, and complexity of each case. Id. at 332-33, 256 P.3d at
740-41. For example, the delay tolerated in the prosecution of an ordinary street crime is
considerably less than what is tolerated in a complex conspiracy case. Risdon, 154 Idaho at 250,
296 P.3d at 1097. Generally, a delay is not presumptively prejudicial until it approaches one
year. Doggett v. United States, 505 U.S. 647, 652 n.1 (1992). Under the Sixth Amendment, the
length of delay is measured from the date of the indictment, information, or arrest. United States
v. Marion, 404 U.S. 307, 320 (1971). Under the Idaho Constitution, the length of delay is
measured from the date formal charges are filed or the defendant is arrested, whichever occurs
first. State v. Young, 136 Idaho 113, 117, 29 P.3d 949, 953 (2001).
       Here, Huntsman was arrested on March 24, 2005, and the indictment was filed on
April 26, 2005. Huntsman’s jury trial began on April 10, 2006. Thus, the period of delay was
approximately twelve and one-half months.         Huntsman argues that because the State was


                                                 9
prepared to go to trial within six months, the twelve-month delay is sufficient to trigger the
consideration of the Barker factors. The district court assumed the delay was presumptively
prejudicial, and on appeal the State concedes that the delay is sufficient to trigger the Barker
analysis. Like the district court, we will assume that the delay was presumptively prejudicial, but
conclude that in light of the complexity and circumstances of Huntsman’s case, the length of
delay is minimal.
       Despite Huntsman’s characterization of the case as a “straightforward murder,”
Huntsman’s case went well beyond a simple street level crime. Huntsman and a co-defendant
kidnapped two people and took them to a residence. They were joined by another co-defendant
and they bound and beat the victims and questioned them about allegedly stolen jewelry. When
Huntsman learned of the identity of the suspected thief, he and one of the co-defendants went to
confront him. After the confrontation and while transporting the man back to the residence,
Huntsman shot him in the face. Huntsman and the co-defendant, with the help of others,
wrapped the body in trash bags and eventually buried the body in a shallow grave.
       Huntsman was indicted for first degree murder and two counts of kidnapping. The co-
defendants were charged with kidnapping and trafficking in methamphetamine. The district
court denied the request to separate the trials, but allowed the drug charges to be tried separately.
The initial trial was set to begin October 11, 2005. On September 30, 2005, the two co-
defendants sought to continue the trial to allow further investigation to prepare a defense. The
State joined the motion to continue due to the discovery of the murder weapon. The court
granted the co-defendants’ motion, but allowed Huntsman to exercise his statutory speedy trial
rights. However, the State filed a motion to dismiss the charges against Huntsman to allow
forensic testing of the recovered firearm. The motion was granted without prejudice. The State
then filed a second indictment charging Huntsman with the same charges contained in the first
indictment. The State moved to consolidate the trials; Huntsman opposed the motion, but the
district court granted the State’s request. Huntsman was ultimately tried alone due to the co-
defendants reaching plea agreements with the State.         Huntsman filed a motion to dismiss
claiming that his speedy trial rights were violated, but the court never ruled on the motion. After
a ten-day trial, the jury found Huntsman guilty as charged. Based on the foregoing, even
assuming the delay of twelve and one-half months is sufficient to trigger the analysis of the




                                                 10
remaining Barker factors, the delay is minimal when compared with the complexity and
circumstances of Huntsman’s crime, the investigation, and the criminal case.
       2.      Reason for delay
       The second factor weighs heavily against Huntsman. The State sought the continuance,
which ultimately required a dismissal, to allow the testing of the recently discovered murder
weapon. Considering Huntsman was charged with first degree murder, the State’s desire to have
the weapon tested to confirm or dispel its relationship to the murder is sound. Further, this Court
has previously approved of the dismissal and refiling of charges to allow the admittance of newly
discovered evidence. See State v. Averett, 142 Idaho 879, 885, 136 P.3d 350, 356 (Ct. App.
2006) (“Such new evidence constitutes a sufficient basis to dismiss and re-file charges.”).
       Huntsman concedes that the reason for delay was the State’s desire to test and evaluate
the firearm to establish its relevance at trial, but he argues that because the State wanted the
continuance, the reason for delay weighs in his favor. Huntsman also contends that the State
sought the delay to allow the admittance of evidence that was not disclosed within the original
discovery deadline. However, Huntsman has pointed to nothing in the record to show the State
willfully delayed the trial to preempt the court’s discovery order. The motion to continue
hearing and the circumstances surrounding the discovery of the firearm contradict Huntsman’s
unsupported claim that the State intentionally sought to delay the case to gain an advantage.
       Huntsman also relies on State v. Davis, 141 Idaho 828, 837, 118 P.3d 160, 169 (Ct. App.
2005), where this Court distinguished the validity of a reason to delay a trial based on the true
unavailability of a witness, which is a valid reason, with the mere inconvenience of a witness,
which fails to justify a delay. Huntsman asks this Court to apply the reasoning in Davis and hold
that like the mere inconvenience of a witness that fails to justify a delay, “the same should be
true for the missing murder weapon.” Huntsman contends that because the State was ready to
proceed without the murder weapon and the State could have presented witness testimony in
place of the weapon, that the weapon is more akin to a witness’s inconvenience. We decline to
equate the newly discovered murder weapon with a witness’s convenience in attending a trial.
       Huntsman also contends that the State’s failure to earlier search the trailer where the
firearm was given to officers suggests that the reason for the delay weighs in his favor. The
firearm was eventually given to police by a known witness. The witness had misled officers
about the firearm, but eventually turned over the weapon at his trailer. From this, Huntsman


                                                11
contends officers should have searched the trailer previously and he presumes that if the
residence had been searched, the firearm would have been recovered. We decline to speculate as
to whether a search would have resulted in earlier discovery of the firearm. The weapon was in
the possession of a third party and unavailable to the State. When it was given to officers, the
prosecutor immediately contacted defense counsel to alert them of the discovery. With the
discovery, there existed a compelling reason to delay the trial and this factor weighs heavily
against Huntsman.
       3.      Assertion of rights
       The third factor, assertion of speedy trial rights, weighs in favor of Huntsman. When his
co-defendants and the State sought to continue the trial beyond the statutory six-month time
requirement, Huntsman affirmatively asserted his speedy trial rights.
       4.      Prejudice
        The nature and extent of prejudice is the most important of the Barker factors. State v.
Lopez, 144 Idaho 349, 354, 160 P.3d 1284, 1289 (Ct. App. 2007). Prejudice is to be assessed in
light of the interests the right to a speedy trial is designed to protect: (1) to prevent oppressive
pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the
possibility the defense will be impaired. Risdon, 154 Idaho at 251, 296 P.3d at 1098. “The third
of these is the most significant because a hindrance to adequate preparation of the defense skews
the fairness of the entire system.” Id. (citing Barker, 407 U.S. at 532). Huntsman argues that he
was prejudiced by the delay because the State was able to introduce evidence at trial that it
would not have been able to introduce but for the State dismissing and refiling the case,
specifically fingerprint and ballistic evidence.     The firearm was also introduced with FBI
analysis and two additional witnesses testified who were discovered after the original trial date.
       However, Huntsman was given the opportunity to prepare for the evidence and witnesses.
The evidence was initially excluded because the State failed to comply with the discovery
deadline. Upon refiling, the deadline was reset and Huntsman then had the necessary time to
review and present a defense to the evidence.          Similarly, the firearm and the witnesses
discovered after the dismissal did not prejudice Huntsman’s ability to present his defense.
Relevant prejudice under speedy trial analysis is the type that inhibits a defendant’s ability to
adequately prepare a defense, not the State’s ability to prepare the prosecution. On the other




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hand, Huntsman was incarcerated for a little over one year and undoubtedly felt the anxiety that
any individual would feel while awaiting charges of first degree murder and kidnapping.
       Weighing the limited prejudice suffered from incarceration and Huntsman’s assertion of
his speedy trial rights against the relatively short length of delay (considering complexity of the
case) and the valid reason to delay the trial, the district court correctly concluded that Huntsman
could not establish a reasonable probability of success on the abandoned motion.
                                                   III.
                                          CONCLUSION
       The district court was without jurisdiction to consider a petition for post-conviction relief
from the dismissed case. In addition, the claim arising from the dismissed case was not timely
filed. Huntsman also could not establish a reasonable probability of success on the abandoned
motion to dismiss.     Therefore, the district court’s order summarily dismissing Huntsman’s
petition for post-conviction relief is affirmed.
       Judge LANSING and Judge MELANSON CONCUR.




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