               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 46120

CARL ROBERT BETANCOURT,                           )
                                                  )    Filed: May 16, 2019
       Petitioner-Appellant,                      )
                                                  )    Karel A. Lehrman, Clerk
v.                                                )
                                                  )    THIS IS AN UNPUBLISHED
STATE OF IDAHO,                                   )    OPINION AND SHALL NOT
                                                  )    BE CITED AS AUTHORITY
       Respondent.                                )
                                                  )

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

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

       Carl R. Betancourt, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jeff Nye, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GRATTON, Chief Judge
       Carl Robert Betancourt appeals from the district court’s order summarily dismissing his
petition for post-conviction relief. We affirm.
                                                  I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       In 2013, Betancourt pled guilty to grand theft, Idaho Code §§ 18-2403, 18-2407(1)(b),
18-2408. On September 9, 2013, the district court imposed a unified sentence of fourteen years
with two and one-half years determinate. Betancourt did not appeal.
       On March 21, 2018, almost five years later, Betancourt filed a pro se petition for post-
conviction relief asserting he is actually innocent, his plea was involuntary, and his trial counsel
was ineffective. Betancourt also requested that counsel be appointed for any post-conviction
proceedings. Shortly after, on March 27, 2018, the district court filed a notice of intent to


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dismiss the petition as untimely and denied Betancourt’s request for counsel because untimely
petitions are considered frivolous per se. In response, on April 16, 2018, Betancourt filed a
motion to reconsider; that motion failed to address the timeliness issue. The district court then
dismissed his petition as untimely. Betancourt timely appeals from that decision.
                                                II.
                                   STANDARD OF REVIEW
        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). All claims for post-conviction relief must be raised in an
original, supplemental, or amended petition. I.C. § 19-4908. 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 limitation 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, 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.
                                                III.
                                           ANALYSIS
A.      Petition for Post-Conviction Relief
        The district court summarily dismissed Betancourt’s petition for post-conviction relief
because it was untimely. The statute allows a petition to “be filed at any time within one year
from the expiration of the time for appeal or from the determination of an appeal or from the
determination of a proceeding following an appeal, whichever is later.” I.C. § 19-4902(a).
Accordingly, Betancourt’s time to file his post-conviction petition expired on October 21, 2014. 1



1
      Betancourt’s sentence was imposed and the judgment was entered on September 9, 2013.
Accordingly, his time to file a direct appeal expired on October 21, 2013. Idaho Appellate
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Because Betancourt did not file his petition until March 21, 2018, the district court dismissed the
petition as untimely.
       Betancourt, however, declined to assign error to the district court’s timeliness
determination, or to explain why his petition was filed almost four years after his time for appeal
had run. Instead, Betancourt’s statement of issues on appeal simply refers to his previously
denied motion for reconsideration, which appears to assert the district court erred in denying his
request for counsel in addition to claims regarding his underlying conviction. 2 The State argues
that because Betancourt failed to argue his petition was timely and the district court’s
determination was based solely on that issue, the dismissal must be affirmed. We agree. When
an appellant fails to contest the grounds upon which a district court based its grant of summary
dismissal, the judgment must be affirmed. State v. Goodwin, 131 Idaho 364, 366-67, 956 P.2d
1311, 1313-14 (Ct. App. 1998). Because Betancourt fails to assign error to the district court’s
grounds for summarily dismissing his petition for post-conviction relief, we affirm.
B.     Motion to Appoint Counsel
       The district court did not err when it denied Betancourt’s motion to appoint counsel
because the claims in his petition were frivolous. The standard for determining whether to
appoint counsel for an indigent petitioner in a post-conviction proceeding is whether the petition
alleges facts showing the possibility of a valid claim. Murphy v. State, 156 Idaho 389, 393, 327
P.3d 365, 369 (2014). If the court decides that the claims in the petition are frivolous, it should
provide sufficient notice regarding the basis for its ruling to enable the petitioner to provide
additional facts, if they exist, to demonstrate the existence of a non-frivolous claim. Charboneau
v. State, 140 Idaho 789, 793, 102 P.3d 1108, 1112 (2004).
       In order to establish he was entitled to counsel, Betancourt had to demonstrate his
petition was not frivolous. Untimely petitions for post-conviction relief are considered frivolous.
Hust v. State, 147 Idaho 682, 686, 214 P.3d 668, 672 (Ct. App. 2009). As we discussed in Hust,
when a petitioner declines to give any explanation as to why the petition, which appears to be



Rule 14. Accordingly, he had until October 21, 2014, to file a timely petition for post-conviction
relief.
2
       Betancourt’s additional issues on appeal include ineffective assistance of trial counsel,
actual innocence, due process violations, and a coerced guilty plea. In determining that
Betancourt’s petition is untimely we need not address these claims.
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time-barred, should be considered timely, there can be no showing of “even the possibility of a
valid claim that could be perfected with the aid of counsel.” Id. at 686, 214 P.3d at 672. Here,
the district court provided Betancourt with the required notice of its intent to dismiss his petition
and gave him the opportunity to demonstrate that his petition was either timely or warranted
equitable tolling. In response, Betancourt filed a motion to reconsider without addressing why
his petition should be considered timely. Though Betancourt now asserts he cannot be “expected
to know how to properly allege the necessary facts” without counsel, he is capable of
demonstrating some excuse, justification, or explanation as to why his petition was not filed
within the limitation period. As we held in Hust, these facts are clearly within the personal
knowledge of the petitioner and do not require the expertise of legal counsel. Accordingly, the
district court was not required to appoint counsel and Betancourt has failed to show it abused its
discretion in refusing to do so.
                                                IV.
                                         CONCLUSION
       Betancourt failed to challenge the district court’s only basis for summarily dismissing his
petition for post-conviction relief. He also failed to demonstrate that it erred in denying his
request for counsel. Accordingly, the district court’s order dismissing Betancourt’s petition for
post-conviction relief is affirmed.
       Judge HUSKEY and Judge LORELLO CONCUR.




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