               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 40555

MARK S. WILBANKS,                                 )     2014 Unpublished Opinion No. 614
                                                  )
       Petitioner-Appellant,                      )     Filed: July 9, 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STATE OF IDAHO,                                   )     THIS IS AN UNPUBLISHED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. Melissa Moody, District Judge.

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

       Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Chief Judge
       Mark S. Wilbanks appeals from the district court’s judgment summarily dismissing his
petition for post-conviction relief. For the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       In 2010, Wilbanks was found guilty of domestic violence with traumatic injury, Idaho
Code §§ 18-903, 18-918(2); domestic assault, I.C. § 18-918; witness intimidation, I.C.
§ 18-2604; and being a persistent violator, I.C. § 19-2514. This Court affirmed his sentences on
direct appeal. State v. Wilbanks, Docket No. 37837 (Ct. App. Feb. 27, 2012) (unpublished).
Wilbanks filed a timely petition for post-conviction relief claiming, among other things, that his
trial counsel was ineffective for failing to investigate documents regarding alleged prior bad acts
and mental health issues of the victim. Wilbanks was appointed counsel.




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       In its answer to Wilbanks’ petition, the State asserted the petition should be dismissed
because the issues could have been raised on direct appeal and Wilbanks failed to present a
genuine issue of material fact. The district court filed a notice of intent to dismiss and gave
Wilbanks twenty days to respond. Wilbanks filed no response, and the district court entered a
judgment summarily dismissing Wilbanks’ petition for the reasons contained in the notice of
intent to dismiss. Wilbanks now appeals.
                                                 II.
                                           ANALYSIS
       Wilbanks contends the district court erred by summarily dismissing his claim that he
received ineffective assistance of counsel. 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 Idaho Rule of Civil Procedure 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, 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


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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.
       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
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, 140 Idaho at 792, 102 P.3d at 1111; Berg, 131 Idaho at 519,
960 P.2d at 740; Stuart, 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


                                                  3
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 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. 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. Gonzales v. State, 151 Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011).
       In his petition for post-conviction relief, Wilbanks argued his counsel was ineffective for
failing to obtain certain documents pertaining to the victim, including police reports from another
domestic violence case, arrest records (presumably for the victim), and a mental health report
about the victim, and utilizing the information to “adequately impeach” the victim as a “drunken
liar.” Contending the case hinged on credibility, Wilbanks argued that, had counsel utilized this
information, there was a reasonable probability he would have been acquitted.


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       The district court granted the State’s motion for summary dismissal in regard to this
claim on two bases: the claim was waived because it could have been pursued on direct appeal
and, even assuming the facts Wilbanks alleged were true, he failed to state a claim that counsel’s
performance was deficient. In regard to the former basis, as Wilbanks points out on appeal and
the State does not contest, a claim of ineffective assistance of counsel is not waived even if not
pursued on direct appeal. See Matthews v. State, 122 Idaho 801, 806, 839 P.2d 1215, 1220
(1992). Thus, we turn to the alternative basis upon which the court relied. In determining that
Wilbanks failed to assert facts amounting to deficient performance, the court stated:
                Petitioner’s allegations, as set forth in his Petition and his affidavit,
       amount to nothing more than a disagreement with his attorney’s trial strategy.
       Disagreements with trial strategy do not establish that counsel’s performance
       was deficient. Gabourie v. State, 125 Idaho 254, 260, 860 P.2d 571, 577 (Ct.
       App. 1994). The fact that it was trial counsel’s considered trial strategy to forgo
       inquiry into the victim’s background--as opposed to inadequate preparation,
       ignorance of the law, or another shortcoming capable of objective evaluation--is
       supported by Petitioner’s statement in his Affidavit. He writes: “On the day of
       trial, public defender said he wasn’t able to get ‘letter of recant’ because it’s not in
       existance [sic] no more,” and “wasn’t able to get the police records/medical
       records because prosecution warned him if I tried to bring up that information, the
       prosecution would get me convicted on being an ex-felon alone when I get on the
       stand.”
                According to Petitioner’s own allegations, trial counsel considered
       Petitioner’s request that counsel obtain certain evidence and made reasonable
       efforts to obtain that evidence; and, according to Petitioner’s own allegations, trial
       counsel had strategic reasons why he did not pursue the course that Petitioner now
       advocates in hindsight. Petitioner’s disagreement with his attorney’s trial strategy
       does not constitute deficient performance.

       On appeal, Wilbanks contends the district court erred in this conclusion because, “rather
than drawing all reasonable inferences in favor of Mr. Wilbanks, including an inference that
defense counsel’s strategic decision was based on ignorance of the law, it instead presumed that
defense counsel’s strategic decision was not the result of inadequate preparation, ignorance of
the law, or other shortcomings.” Specifically, he contends that from his statement quoted by the
district court, “it is possible to conclude that the reason for defense counsel’s failure to conduct
an adequate cross-examination of the alleged victim was a fear that the State would
cross-examine Mr. Wilbanks concerning prior felony convictions if he testified.” Wilbanks
argues that, taking all inferences in his favor, this indicates that counsel “made a tactical decision



                                                  5
based on a potentially unlawful threat by the prosecutor, as felony convictions are not
automatically permissible grounds for impeachment” under Idaho Rule of Evidence 609. 1
       Wilbanks’ argument is in contravention of well-settled law pertaining to summary
dismissal of post-conviction petitions. Although Wilbanks was entitled to have disputed facts
considered in his favor, Payne, 146 Idaho at 561, 199 P.3d at 136; Roman, 125 Idaho at 647, 873
P.2d at 901, 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, 146 Idaho at 355,
195 P.3d at 714.     An appellate court must defer to reasonable inferences drawn from the
evidence by the trial court if the uncontroverted evidentiary facts are sufficient to justify them.
Hayes, 146 Idaho at 355, 195 P.3d at 714.
       Here, even assuming (in Wilbanks’ favor) that defense counsel made the statements to
Wilbanks as quoted in the district court’s decision and acted in conformance to those statements,
the district court was not required to infer that counsel did so as a result of ignorance of the law.
Rather, the court was free to draw a reasonable inference as to the motivation behind counsel’s
actions, which in this case, was that counsel acted pursuant to legitimate trial strategy as opposed
to ignorance of the law. A review of the record indicates this was a reasonable inference to draw
from the evidence presented (and Wilbanks does not argue otherwise).               Wilbanks himself
indicated that counsel researched the issue, but ultimately indicated several reasons why counsel
chose not to utilize this evidence at trial. In addition, Wilbanks did not present any evidence that
defense counsel believed that Rule 609 allowed for automatic admissibility of witnesses’ prior
felony convictions and acted on reliance on such an erroneous interpretation of the rule. Given
that the district court came to a reasonable inference based on the evidence before it, we must
defer to its finding. The district court did not err in granting the State’s motion for summary
dismissal. The judgment summarily dismissing Wilbanks’ petition for post-conviction relief is
affirmed.
       Judge LANSING and Judge GRATTON CONCUR.

1
       Idaho Rule of Evidence 609 provides for the use of a prior felony conviction to impeach a
witness if the conviction occurred within the preceding ten years and “only if the court
determines in a hearing . . . that the fact of the prior conviction or the nature of the prior
conviction, or both, are relevant to the credibility of the witness and that the probative value of
admitting this evidence outweighs its prejudicial effect.”

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