                 IN THE COURT OF APPEALS OF TIIE STATE OF IDAHO

                                    Docket Nos. 39594 I 40446

DENNIS L.     NIELSON,                             )    2014 Unpublished Opinion No.694
                                                   )
         Petitioner-Appellant,                     )    Filed: August 25' 2014
                                                   )
v.                                                 )    StePhen W. KenYon' Clerk
                                                   I
STATE OF IDAHO.                                    )    Trrrs $ AI\t TJNPUBLISHED
                                                   )    OPINIONANDSIIALLNOT
         Respondent.                               )    BECITEDASAUTHORITY


         Appeal from the District Court of the Fourth Judicial District, State of ldaho' Ada
         County. Hon. Michael R. Mclaughlin, District Judge.

         Judgments dismissing post-conviction actions, affrrmed.

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

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


LANSING, Judge
         Dennis L. Nielson was convicted of lewd conduct with a minor under sixteen. Nielson
challenged his conviction in two post-conviction actions: an original action and a successive
action. Both were summarily dismissed. Nielson challenges those dismissals in this appeal. He
argues that the district court should not have dismissed two        claims: a claim that he    was

prejudiced by an evidentiary ruling and a claim involving his competency'
                                                   I.
                                         BACKGROTJI{D
         Nielson was charged with lewd conduct with a minor under sixteen, Idaho Code $ 18-
1508. During most of the pretrial process and during the entire trial, Nielson was represented by
counsel. He represented himself, however, for a brief period beginning at a pretrial conference
scheduled to determine the admissibility of other rnisconduct evidence and ending immediately
before   jury selection.
          Pursuant to Idaho Rules of Evidence 404(b) and 609, the State submitted notice of its
intent to introduce evidence of Nielson's prior sexual contact with children. Ttrough counsel,
Nielson argued that the evidence should not be admitted. The court did not issue its oral ruling
until Nielson was again represented by counsel. In its ruling, the court held that Nielson's prior
sexuel contact with children could be admitted into evidence pursuant to I.R.E. 404(b). It also
ruled that his prior sex ofiense convictions were admissible pursuant to I.R.E. 609. In particular,
it found that the State could adduce this evidence ifNielson opened the door to it by testifuing.
          At various points, Nielson made unswom statements indicating that he might be mentally
ill.   In a pretrial conference, he staled that he had "started having psychotic events" and that, as a
result of these episodes, he had executed a power of attomey in favor of his             wife.   He also
indicated that he had been held in a mental health facility inside a prison, provided medicine for
his mental illness, and discharged from that writ only because he was not a danger to himself or
others. on the other hand, he stated that he "never had a psychiatric evaluation." Nielson's
counsel unequivocally stated that "there is no question in my mind fNielson] is competent to
proceed     today." ln   response      to Nielson's conflicting statements, the court concluded that
'Nielson is competent. . .    .   If   there are psychological issues, they have not been demonstrated
here."
          On the moming before jury selection, Nielson submitted a written motion asserting that
he was not competent. He claimed that a doctor had diagnosed him with schizophrenia. The
court denied this motion on the basis that Nielson failed to submit any evidence of his mental
illness. After the motion was denied, Nielson explained that he did not intend to assert his
mental illness as a defense and affirmatively stated that he was not ..crazy."

          The case proceeded to jury trial, where the state's evidence showed that Nielson
manually touched the genitals of his child victim. The State also adduced evidence of flight to
show consciousness of  guilt. Nielson did not present any evidence. Instead, he argued that the
victim was not credible when she reported the touching to one parent two years after the
incident. The jury found Nielson gurlty, and the court imposed a unified sentence offifty years
with thirty years fixed, to run consecutively to Nielson's sentences in other cases.
         Nielson appealed several of the district court's rulings. We addressed each in .Srafe         v.
Nielson, Docket No. 33823 (ct. App. Aug.          l,   2008) (rmpublished). As to several claims of error
relating to Nielson's brief period of pro se representation, we held that Nielson failed to show
 any prejudice and thereforp was not entitled to any relief. We also held that the district court did
 not abuse its discretion by not ordering a psychosexual evaluation or updated presenGnce
 investigative report. Finally, we determined that the district court did not abuse its discretion
when sentencing Nielson.

          Thereafter, Nielson filed   a petition for   post-conviction   relief. It was   summarily
dismissed, but Nielson appealed that dismissal. while that appeal was p€nding, Nielson filed a
successive post-conviction   action. It alleged that Nielson should be allowed to file a successive
petition because his aftomey in the first post-conviction action was ineffective. On Nielson's
motion, the Idaho supreme court stayed the appeal of the original post-conviction action,
pending a decision on his successive post-conviction action. Thereafter, the successive post-
conviction action was also summarily dismissed, and Nielson again appealed. The two post-
conviction appeals were consolidated and are now before this Court.
        Nielson argues that the district court erred by dismissing two claims of ineffective
assistance of counsel, one for defense counsel's failure to adequately preserve the I.R.E. 404(b)

issue for appeal and one for defense counsel's failure to request a competency evaluation.

                                                 IL
                                           ANALYSIS
      A petition for post-conviction relief initiates a civil, rather than criminal, proceeding
govemed by the Idaho Rules of civil Procedure. I.c. g 19-4907; state v. yakovac, 145 Idaho
437' 443,180 P.3d 476,482 (2008): see also Pizzuto v. state, 146ldaho 720,724,202p.3d, &2,
646 (2008). Like plaintiffs in other civil actions, the petitioner must prove by a preponderance of

the evidence the allegations upon which the request for post-conviction relief is based. Stuart v.
state,   llS   ldaho 865,869,801 p.2d1216, 1220(1990);Goodwinv. state,l38 Idaho 269,271,
6l 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. g(a)(l). state v. payne,
146 Idaho 548, 560, 199 P.3d 123,135 (200E); Goodwin, 138 Idatro         at27t,61p.3d at 628. The
petition must be verified with respect to facts within the personal knowledge of the petitioner,
and affrdavits, records, or other evidence supporting its allegations must be attached, or the
petition must state why such supporting evidence is not included. I.c. 194903. ln other
                                                                      $
words, the petition must present or be accompanied by admissible evidence supporting its
    allegations or it   will be subject to dismissal. ll/olf v. state,   152 Idaho 64,67,266 p.3d 1169.
    1172(Ct. App.20l1); Romanv. State,t25Idaho 644, 647,87l. p.2d 898,901 (Ct. App. 1994).
           Idaho code section 19-4906 authorizes summary dismissal                 of a petition for    post-
    conviction relief, eitler pursuant to a motion by a party or upon the court's own initiative,        if "it
 appears from the pleadings, depositions, answers               to   intenogatories, 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. l9-4906(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
aflegations, unsupported by admissible evidence, or the petitioner's conclusions              oflaw. 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      ajury will   be the trier of fact in the event   ofan 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
rdahoat444,l80P.3dat483; wolf,l52ldahoat67,266p.3d,atll72;Hayesv.state,l46 Idaho
353, 355, 195 P.3d 712,714 (ct. App. 2008). Such inferences will not be disturbed on appeal if
the uncontroverted evidence is suffrcient to       justiff them. chavez
                                                          Barrus,146ldaho 212,2lg,
                                                                           v.
192 P.3d 1036, 1042 (2008); Haves, 146 Idaho at 355, 195 p.2d at 714; Farnsworth v.
Dairymen's Creamery Ass'n 125 Idaho 866, 868, 876p.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 justifi relief as a matter of law. Ketly v. state,        149 Idaho 517, 521,236 p.3d 1277,         l2gl
(2010); McKav v. State, 148 Idaho 567, 570,225 p.3d700,703 (2010); DeRushd v. stute, 146
Idaho 599, 603,200 P.3d 1148, tt52(2009);charboneauv. state,l44ldaho 900,903. 174 p.3d
870,873 Q007); Berg v. State, 131 Idaho 517, 518, 960 p.2d738,739 (1998); Murphy v. state,
143 Idaho 139,145,139 P.3d 74t,747 (ct. App. 2006); cootz v. state,l2g Idaho 360, 368,g24

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 s6l, 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 I l0g, I I I I (2004);
 Berg,   l3l Idahoat519,960p.2dat740;stuartv.state, llgrdaho932,934,g0l                         p.2d, 12g3,
 1285 (1990); Sheahanv. 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 rnaterial fact is presented, an evidentiary
 hearing must be conducted to resolve the factual issues.                              p.3d at
                                                          ^Kel/y, 149 Idaho at 521,236
 l28l;Payne,146 Idaho at56l,l99 P.3dat136; Goodwin,l3gIdaho at272.61p.3dat629.
          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 enritle the petitioner to relief. Ridgley v. state, l4g ldaho 671, 675,227 p3dg25,
929 (2010); Berg, 131 Idaho at 519, 960 p.2d, at740; 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. stote, 148ldaho 247,250,220 p.3d 1066, 1069 (2009); Downing v.                 state, 136 rdaho
367,370,33 P.3d 841, 844 (ct. App. 2001); Martinez v. state, 130 Idaho 530. 532. g44 p.2d,
r27,r29 (Ct. App. 1997).
         A claim of ineffective     assistance of counsel may properly be brought rmder the Uniform
Post-Conviction Procedure Act. Murray v.           state,l2l Idaho glg,     924-25, g2g p.2d 1323, l32g_
30 (Ct. App. 1992). To prevail on an ineffective assistance of counsel claim, the petitioner
                                                                                             must
show that the attomey's performance was deficient and that the petitioner was prejudiced
                                                                                           by the
deficiency. stricHand v. washington,466 u.s. 66g, 6g7-gg (19g4); Hassett v. state, 127
                                                                                       ldaho
313,316,900 P.2d 221,224 (ct. App. 1995). To establish a deficiency, the petitioner has                 the
burden    of   showing that the attomey's representation           fell below an objective standard of
reasonableness. strickland,466        u.s. at 6g7-gg;      Aragon v. state, ll4Idaho 75g, 760,760p.2d,
ll74'    1176 (1988). To establish prejudice, the petitioner must show a reasonable probability
that, but for the attomey's deficient performance, the outcomeof the trial would have been
different. strickland,466 u.s. at 696; Aragon,l14 Idaho at76l,760p.2datll77. 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 231,233,880P.2d261,263 (Ct App. 1994).

 A.     Successive Petition
        We begin by holding that Nielson's successive petition was not authorized by Idaho law
 and therefore was properly disrnissed. The circrrmstances under which a successive post-
 conviction petition may be presented are defined in Idaho Code g 19490g:
                All grounds for relief available to an applicant under this act must be
        raised in his original, supplemental or amended application. Any ground frnally
        adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in
        the proceeding that resulted in the conviction or s€ntence or in any other
        proceeding the applicant has taken to secure relief may not be the bas'is for a
        subsequent application, unless the court finds a ground for relief asserted which
        for suffrcient r€ason was not asserted or was inadequately raised in the original,
        suppl emental, or amended application.

When Nielson's successive petition was filed, Idaho case law held that allegations of ineffective
assistance   of prior post-conviction counsel could provide a sufficient reason to permit a
successive post-conviction petition. palmer v. Dermitt, 102 Idaho 5gl, 596, 635 p.2d g55,
                                                                                          960
(1981). That case law has recently been ovemrled, however, in Murphy v. state,156 Idaho 3g9,
327 P.3d 365 (2014). The ldaho Supreme Court abrogated the prior line of cases and held
                                                                                        that
"ineffective assistance of post-conviction counsel is not a suffrcient reason under I.C. l9-490g
                                                                                        $
for allowing a sucrcessive petition." Murphy, 156 Idaho at 392,327 p.3d, at 367. Nielson's
successive petition, which was filed before Murphy was issued, asserted only a single ..sufficient

reason," the ineffective assistance of his counsel in the original post-conviction agtion.
                                                                                           Because
under current Idaho law that     is not a "sufficient   reason,', his successive petition was not
permissible. Accordingly, we affirm the dismissal of the successive petition on this
                                                                                     basis and do
not lirther address any of claims raised in the successive petition.
B.      I.R.E.404(b) Claim
        On appeal, Nielson claims that the post-conviction court erroneously dismissed his claim
that his trial counsel was ineffective for failing to make an adequate record. He argues
                                                                                         that trial
counsel should have had him     testif   as an offer of proof   in order to preserve his potential
testimony for the purposes of an appeal. However, because this claim was not raised
                                                                                    in the
original post-conviction action, we will not consider this claim of error.
       In his original post-conviction action, Nielson affirmatively stated "trial counsel did
provide effective assistance of counsel" and argued that appellate counsel was ineffective.
 (emphasis added). Nielson first claimed ineffective assistance of trial counsel in his successive
 petition. For the reasons stated above, we will not review claims of ineffective assistance raised
 solely in the successive post-conviction action. Accordingly, we conclude that Nielson has
 failed to show error.
 C.     Competency Claim
        Nielson argues that his defense counsel provided ineffective assistance by not filing a
 motion requesting a competency evaluation. Nielson has asserted error both in the dismissal       of
his otiginal post-conviction action and in the dismissal of his successive post-conviction action.
once again, however, we will consider only Nielson's claims challenging a ruling made in the
initial post-conviction case.
       In that action, the district court held that Nielson had presented no evidence that he was
mentally ill. On appeal, Nielson concedes that "[i]nitial post-conviction counsel failed to present
the requested evidence." As stated above, a petition that is not supported by admissible evidence
is "subject to dismissal." IYolf,l52Idaho at 67, 266p.3d, at Ll72; Roman,l25 Idaho at 647, g73
P.2d at 901' After our own review of the record, we find no error in the post-conviction court's
dismissal of this claim, for Nielson presented no admissible evidence sufficient to raise an
inference that he was incompetent during the criminal proceedings.

      Nielson presented, unsworn statements from the trial transcript along with an ambiguous
and unswom document of uncertain provenance. Because neither is a statement made under
oath, neither is admissible evidence. see r.c. g 194906(c); I.R.c.p. 56(e); I.R.E. 603. In his
verified, amended petition, Nielson did state that he had been diagnosed with schizophrenia
began experiencing "psychotic events" a year prior, and had been treated      for his schizophrenia.
While these statements are admissible evidence, for the reasons that follow we conclude that
they do not raise a factual issue as to whether he was incompetent to stand trial or assist in his
defense during the criminal proceedings.

       An illustrative   case is Ridglev v.   state, 148 Idaho 671,227 p.3d,925, (2010), where the
post-conviction petitioner submitted an expert report stating that the petitioner currently suffered
from major depression, post-traumatic stress disorder, and anxiety disorder. The Idaho Supreme
Court held that this evidence was insufficient because      it did not show that the petitioner was
    incompetent when he pleaded guilty, which was the relevant point in time. Id. at 679,227           p.jd,
    at 933. It also held that the petitioner's own opinion that he was incompetent at the time of his
    guilty plea "was not admissible evidence" because the petitioner was not a qualified expert. For
    these reasons, the   court affumed the order granting summary dismissal of his claim.
           Similar deficiencies in the evidence exist here. First, the evidence submitted in the
 original post-conviction action does not describe Nielson's mental status at the appropriate time.
 Second, the mere diagnosis of schizophrenia is insufficient to show incompetence.r Third,
 Nielson presented no evidence of his mental condition from a qualified expert. Because he has
 not provided evidence showing that he was incompetent at the relevant time, Nielson has
                                                                                            not
 shown that his attomey was deficient in failing to move for a competency evaluation
                                                                                        or that
Nielson was prcjudiced thereby.
         We note that Nielson was twice told by the court that he would be permitted to rectifu
this failure of evidence and twice failed to do so. In both the criminal case and in the first post-
conviction case,     tle trial court   indicated that   it   was willing to consider Nielson's claims of
mental illness once he presented appropriate evidence showing he was mentally            ill.   Nielson did
not do so on either occasion.2

                                                    nI.
                                             CONCLUSION
        Idaho law governing successive petitions for post-conviction relief no longer permits
                                                                                                a
petitioner to raise claims in a successive petition because his counsel in prior post-conviction
                                                                                  a



'        In recent cases, we have emphasized the capacity of people with physical and mental
disabilities and have observed:
         Disabilities that gravely influence one sphere of a person's life may not limit a
         person in another sphere. consequently, legal detirminations of Lpacity
                                                                                          and
         competency do not rely upon sweeping generalizations.
state v. Hamlin 156 Idaho 307,324 p.3d 1006, l0l4 (ct. App. 2014). There may
                                                                                         exist cerrain
                                                    will aknost universally warrant a finding of
                                                   at render a percon nonresponsive. However, it
                                                   dispositive of competency. To hold otherwise
                                                   side of its institutional competence.
2         We also note that the record tends to indicate that Nielson was competent. His
                            during the criminal case was lucid. It was clear that he understood
                            interests in the case, the evidence against him, and how he could
action was deficient. AccordinglS Nielson's claims in his successive petition were properly
dismissed because these claims were pr€dicated on his contention that counsel in his original
post-conviction action was ineffective. Nielson's claim in this appeal of ineffective assistance   of
defense counsel regarding I.R.E. 4040) evidence is not the same I.R.E. 404(b) claim raised in
his first post-conviction actiog and we therefore do not address   it.   The competency claim raised
on appeal was raised in Nielson's first post-conviction action, but was properly dismissed
because Nielson failed to provide admissible evidence      to support the claim. Therefore, the
judgrnents of the district court dismissing Nielson's post-conviction actions are affirmed.

       Chief Judge GUTIERREZ and Judge CRATTON CONCIJR




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