               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 46654

JUSTIN LYNN McCALLUM,                           )
                                                )    Filed: February 27, 2020
       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                                                )    THIS IS AN UNPUBLISHED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 Fourth Judicial District, State of Idaho,
       Elmore County. Hon. Nancy A. Baskin, District Judge.

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

       Eric D. Fredericksen, State Appellate Public Defender; Sally J. Cooley, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Chief Judge
       Justin Lynn McCallum appeals from the district court’s final judgment in which the
district court dismissed McCallum’s petition for post-conviction relief. McCallum argues the
district court erred because it dismissed on grounds not set forth in the State’s motion and,
therefore, did not give McCallum twenty days to respond.          We affirm the district court’s
judgment and order dismissing McCallum’s petition for post-conviction relief because the
district court did not dismiss McCallum’s petition on a different ground than the State asserted.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       McCallum was originally convicted of lewd conduct with a minor child under sixteen
years of age and felony destruction of evidence. The district court imposed a unified sentence of
twenty-five years, with five years determinate, for lewd conduct and a five-year determinate


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sentence for felony destruction of evidence. McCallum appealed and this Court affirmed the
sentence for the lewd conduct conviction, but vacated the judgment of conviction for felony
destruction of evidence and remanded the case for sentencing on the charge of misdemeanor
destruction of evidence. State v. McCallum, Docket Nos. 43701, 43738 (Ct. App. Apr. 27, 2017)
(unpublished). McCallum was then resentenced for misdemeanor destruction of evidence.
       McCallum filed a petition for post-conviction relief. The State filed a combined answer
and motion to dismiss McCallum’s petition, 1 arguing McCallum failed to include any admissible
evidence to support his allegations, and in the alternative, failed to state a claim upon which
relief could be granted. McCallum requested the appointment of counsel, which the district court
granted. The State filed a separate motion for dismissal and claimed again that McCallum failed
to include any admissible evidence to support his allegations. McCallum then amended his
petition for post-conviction relief, and the State answered the amended petition and renewed its
motion to dismiss. In the answer, the State asserted three deficiencies in McCallum’s claims:
McCallum failed to provide evidence to support his post-conviction claims; McCallum failed to
state a claim upon which post-conviction relief could be granted; and because of the lack of
sufficient evidence in support of his claims, McCallum failed to raise a genuine issue of material
fact as to any of his claims. A hearing was held on the State’s motion to dismiss. After the
hearing, the district court granted the State’s motion and issued an order which dismissed
McCallum’s petition for post-conviction relief. The district court found McCallum failed to
support his allegations with admissible evidence since McCallum did not include any affidavits,
documents, or other admissible evidence to support his claim. The district court entered a
judgment dismissing McCallum’s petition for post-conviction relief. McCallum timely appeals.



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        The State used “motion to dismiss” for its motion. Although we will refer to the State’s
filings by the names set forth on the documents, we echo the district court and encourage the
State to abide by the guidance of the Supreme Court:
       [T]he preferable practice is: (1) to file a motion separate from the answer, (2) to
       identify that motion as a motion for summary disposition, not a motion to dismiss,
       and (3) to use the language of I.C. [§] 19-4906(c) and cite that specific statutory
       provision in support of the motion for summary disposition. It should be
       absolutely clear to a defendant that the State is not just responding to a petition
       but is seeking summary disposition.
Workman v. State, 144 Idaho 518, 524, 164 P.3d 798, 804 (2007).
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                                                 II.
                                   STANDARD OF REVIEW
         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 v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). 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).
                                                III.
                                           ANALYSIS
         McCallum argues the district court erred when it dismissed his post-conviction action
because the district court dismissed his petition on grounds other than the grounds articulated by
the State without giving him twenty days to respond. The State claims McCallum did not
properly preserve his argument for appeal, and even if he did, the district court dismissed the
petition on grounds substantially similar to those articulated by the State and, thus, McCallum
was not entitled to additional notice.
         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. 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).
         To the extent McCallum is arguing any of the State’s filings did not provide him with
adequate notice of the grounds for dismissal, in order to preserve his argument McCallum
needed to object to the insufficiency of the State’s notice so that the district court had the
opportunity to rule on the issue. See State v. Kelly, 149 Idaho 517, 522 n.1, 236 P.3d 1277, 1282
n.1 (2010). By failing to do so, McCallum waives these arguments on appeal.

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       As to McCallum’s second claim that the district court dismissed his petition on grounds
other than those articulated by the State, we disagree.        The notice requirement for post-
conviction cases is set forth in I.C. § 19-4906, which permits a court to rule summarily on
applications for post-conviction relief by dismissing the application sua sponte under I.C. § 19-
4906(b) or by granting a motion of either party under I.C. § 19-4906(c). Workman v. State, 144
Idaho 518, 523, 164 P.3d 798, 803 (2007). Where a trial court dismisses a claim based upon
grounds other than those offered by the State, the defendant seeking post-conviction relief must
be provided with twenty days’ notice. Kelly, 149 Idaho at 523, 236 P.3d at 1283. However,
when the dismissal of the petition is based upon the grounds offered by the State, the Court need
not provide additional notice. Id. Even when a district court relies only in part on the arguments
presented by the State, the notice requirement has been met. Id.
       Here, following McCallum’s original petition for post-conviction relief, the State filed a
combined answer and motion to dismiss which claimed McCallum failed to include any
admissible evidence supporting his allegations, failed to state a claim upon which relief can be
granted, and failed to establish a genuine issue of material fact. The State later moved for
dismissal and argued to the district court that McCallum failed to support his claims with
sufficient evidence. Specifically, the State claimed not only that McCallum made only bare and
conclusory allegations, and thus failed to satisfy the requirements of I.C. § 19-4903, but also that
the allegations contained in McCallum’s petition were so vague and broad that the State did not
have an opportunity to prepare a defense to them. After being on notice of this insufficiency,
McCallum filed an amended petition for post-conviction relief, and the State again argued in
response that McCallum’s petition contained “bare and conclusory allegations unsubstantiated by
affidavits, records, or other admissible evidence.” The State concluded in the third motion to
dismiss that McCallum failed to raise a genuine issue of material fact under I.C. §§ 19-4902(a),
19-4903, and 19-4906. At the hearing on the State’s motion, the State argued once again that
McCallum failed to comply with I.C. § 19-4903 because the only evidence to support
McCallum’s petition was an affidavit from McCallum that failed to provide any factual support
for his claims.
       In the order dismissing McCallum’s petition for post-conviction relief, the district court
categorized the claims within McCallum’s petition and amended petition and addressed them



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individually but found generally, that McCallum had not provided a sufficient factual basis to
create a genuine issue of material fact.
       McCallum’s first post-conviction claim involved alleged errors by the prosecution in
pursuing the case, including claims that the prosecution based the trial on the destruction of
evidence charge, those responsible for the investigation did not speak with witnesses, and
investigators did not timely seek phone records which resulted in a loss of evidence. The district
court dismissed the allegations within this first claim because McCallum failed to include any
evidence to support the allegations. Because the district court dismissed this claim with the
identical reasoning set forth by the State, McCallum received adequate notice on this ground.
       McCallum’s second post-conviction claim broadly encompassed five allegations that
McCallum’s trial counsel was ineffective. The five allegations include: (1) counsel did not call
any witnesses or use any statements; (2) counsel did not conduct a proper investigation and did
not question the lack of investigation; (3) counsel did not use any defense information provided
by his previous attorney; (4) McCallum was denied his Constitutional right to testify in his own
defense; and (5) McCallum admitted to a probation violation in an unrelated case only because
he had been found guilty of the offense that served as the basis for his petition.
       The district court addressed the first three allegations together and found each allegation
involved strategic decisions made by trial counsel. The district court found McCallum failed to
provide sufficient evidence from which the court could evaluate the performance of trial counsel.
Specifically, the district court considered the reasonableness of the strategic decisions but
concluded there was no evidence presented that trial counsel’s performance fell outside the range
of competent representation or overcame the presumption that counsel performed in a competent
and diligent manner. This ground for dismissal was the same ground set forth by the State--that
McCallum failed to provide sufficient evidence to support the claim. Thus, McCallum received
adequate notice of the grounds for dismissing the first three allegations within McCallum’s
ineffective assistance claim.
       As for the fourth allegation within McCallum’s ineffective assistance claim--McCallum
was denied his Constitutional right to testify in his own defense--the district court dismissed the
claim on two grounds: first because the claim was not supported by the record in the underlying
criminal case and second, because McCallum failed to present sufficient evidence to establish a
genuine issue of material fact. The State concedes that dismissing a claim because the claim is

                                                  5
belied by the record is a different basis than failing to support a claim with admissible evidence,
but the State argues there is substantial overlap with the State’s bases for dismissing the petition.
We agree.
       The State sought to dismiss McCallum’s petition based on lack of admissible evidence to
support a claim; similarly, the district court found that McCallum provided no evidence beyond
his own declaration supporting his claim that he was unduly influenced to waive his right to
testify. The district court also noted that McCallum provided no evidence that any alleged
ineffective assistance would have changed the jury verdict. Although the district court provided
additional analysis about the deficiencies of the claim, its ultimate conclusion--that McCallum’s
claims were not supported by admissible evidence and therefore he failed to raise a genuine issue
of material fact--was not different in kind to the grounds for dismissal asserted by the State.
        The district court also found that McCallum’s fifth allegation of ineffective assistance
was not supported by the record. In his petition, McCallum argued he admitted to a probation
violation in an unrelated case only because he was found guilty of the offense that served as the
basis for his petition. The district court explained McCallum failed to establish his ineffective
assistance of counsel claims, and thus, any collateral attack on his admission to a probation
violation must also be denied. To the extent it relies upon the district court’s previous findings,
this explanation regarding McCallum’s fifth allegation is substantially similar to the grounds for
dismissal set forth by the State.
        The district court’s dismissal of McCallum’s claims was based on either the same
grounds articulated by the State in its motion to dismiss, or was sufficiently similar, such that
McCallum was not entitled to notice different to or in addition to what the State provided in its
motion to dismiss.
                                                  IV.
                                         CONCLUSION
       The district court did not dismiss McCallum’s petition on grounds different than those
articulated by the State. Consequently, McCallum had notice of the grounds for dismissal of his
post-conviction petition. Therefore, we affirm the district court’s final judgment dismissing
McCallum’s petition for post-conviction relief.
       Judge GRATTON and Judge LORELLO CONCUR.



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