              IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 43617

DOUGLAS BRENT MALAR,                           )    2016 Unpublished Opinion No. 674
                                               )
      Petitioner-Appellant,                    )    Filed: September 12, 2016
                                               )
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STATE OF IDAHO,                                )    THIS IS AN UNPUBLISHED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 First Judicial District, State of Idaho, Kootenai
      County. Hon. Cynthia K. C. Meyer, District Judge.

      Order dismissing petition for post-conviction relief, affirmed in part, reversed in part,
      and case remanded.

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

      Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney
      General, Boise, for respondent.
                ________________________________________________
HUSKEY, Judge
       Douglas Brent Malar appeals from the district court’s order summarily dismissing his
petition for post-conviction relief.   Malar contends the district court erred in summarily
dismissing his post-conviction petition because although a claim that counsel failed to appeal
his revocation of probation was not raised in his petition, the claim was tried by the consent of
the parties. The State asserts the district court correctly granted the motion for summary
dismissal because the issue was not raised in the petition and the claim could not have been
tried by consent because there was no trial. We hold the district court addressed the claim as if
it was raised in the petition and fully considered it on the merits and so, because the issue is
properly before this Court, we need not address whether it was tried by consent. Additionally,
because the district court incorrectly held the claim was time-barred, the order granting
summary dismissal of that claim is reversed and the case remanded.



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                                               I.
                                FACTS AND PROCEDURE
       Malar was sentenced in 2012 based upon his guilty plea to one count of felony driving
under the influence in violation of Idaho Code § 18-8004. He was sentenced to a unified term
of four years, with two years determinate, and placed on probation. No appeal was filed. On
January 9, 2015, following a determination that Malar had violated various terms and
conditions of probation, the district court revoked probation and executed the underlying
sentence. Malar filed an Idaho Criminal Rule 35 motion; no appeal was filed from the order
revoking probation or the order on the Rule 35 motion.
       Malar filed a petition for post-conviction relief on May 18, 2015. Therein, he alleged
as a basis for post-conviction relief: 1) counsel was ineffective for failing to raise issues at
appropriate times; 2) law enforcement withheld information favorable to the defense; and 3) he
was persuaded to plead guilty by threats from counsel. Later in the petition, Malar claimed
additional instances of ineffective assistance of counsel as follows: 1) counsel failed to file a
motion to suppress; 2) counsel failed to inform him of the elements of driving under the
influence; and 3) counsel wished to proceed to arraignment without discovery.              Malar
specifically petitioned from the January 9, 2015, order; although, he called it the date of
sentence rather than the date of probation revocation.
       Little detail regarding the claims was provided in Malar’s first affidavit attached to the
petition. Malar filed a second affidavit following the State’s motion for summary dismissal. In
that affidavit, Malar provided more detail, much of which related to the underlying criminal
conviction. The relevant portions are as follows:
      4.      When I violated my probation in September 2012, I again asked [my
              public defender] if there was a way to retract my plea, or appeal my case,
              and I was informed there was not.
      5.      In December 2014, I asked [my public defender], the assigned [p]ublic
              [d]efender, about having the issue revisited. She informed me she was not
              aware of a way to do so.
      6.      [Public defender] was assigned as my [p]ublic [d]efender when my
              sentence was imposed on January 9, 2015. I asked him about appealing
              my case and was told I could not appeal my sentence or conviction
              regardless of the fact that I entered an Alford Plea [sic].




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       The State filed an answer and a motion for summary dismissal, arguing the petition was
untimely filed. Malar’s counsel responded, arguing the district court should equitably toll the
time for filing the petition. The State requested the petition be summarily dismissed.
       The district court granted the State’s motion.         First, although the district court
referenced paragraphs two through six of Malar’s second affidavit wherein Malar listed four
occasions on which he asked for an appeal, the court made findings on only three of those
dates. The district court made no findings regarding Malar’s claim that he asked for an appeal
after the probation revocation in January of 2015. As to the three dates for which the district
court did find that Malar requested an appeal, the court held, “Petitioner has made out a prima
facie case of ineffective assistance of counsel: Petitioner has demonstrated, and the state has
not challenged, that he requested an appeal of his conviction, and Petitioner has suffered
prejudice because he thereby lost the opportunity to appeal.” However, the district court
ultimately concluded that because Malar’s request for an appeal was from his original
conviction, the petition was time-barred in its entirety, and there was no basis to equitably toll
the time for filing the petition. The district court then granted the State’s motion for summary
dismissal on that ground.
                                               II.
                                          ANALYSIS
       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). Like a plaintiff in a civil action, the petitioner must
prove by a preponderance of evidence the allegations upon which the request for post-
conviction relief is based. 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.
Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004). A petition must contain much
more than a short and plain statement of the claim that would suffice for a complaint under
Idaho Rules of Civil Procedure 8(a)(1). Rather, a petition for post-conviction relief 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 with the petition. I.C. § 19-4903. In other

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words, the petition must present or be accompanied by admissible evidence supporting its
allegations or the petition will be subject to dismissal. Wolf v. State, 152 Idaho 64, 67, 266
P.3d 1169, 1172 (Ct. App. 2011).
       Idaho Code Section 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). Moreover, the district court, as the
trier of fact, is not constrained to draw inferences in favor of the party opposing the motion for
summary disposition; rather, the district court is free to arrive at the most probable inferences
to be drawn from uncontroverted evidence. 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. Id.
       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); DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). 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 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);

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Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). If a genuine issue of
material fact is presented, an evidentiary hearing must be conducted to resolve the factual
issues. 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); Sheahan, 146 Idaho at 104, 190 P.3d at 923. Over questions of law, we
exercise free review. Rhoades, 148 Idaho at 250, 220 P.3d at 1069; Downing v. State, 136
Idaho 367, 370, 33 P.3d 841, 844 (Ct. App. 2001).
       Malar asserts on appeal his claim of ineffective assistance of counsel for failing to
appeal after probation was revoked was tried by the consent of the parties. The State claims
the issue could not have been tried by consent because absent a trial, there can be no “trial” by
consent, and moreover, that theory is specifically exempted from summary dismissal
proceedings. We hold that the district court treated the issue of whether trial counsel was
ineffective for failing to appeal from the revocation of probation as if it were raised in the
petition. Because the claim was actually considered and ruled upon by the district court, the
claim is properly before this Court. Because we freely review the issue, we can determine
whether the district court erred in summarily dismissing the claim.
       In his petition, Malar claimed his trial counsel failed “to raise issues at appropriate
times.” Broadly speaking, this could include, among other things, failing to file an appeal from
the revocation of probation, and the district court apparently read the claim as involving the
filing of the various appeals. Malar provided additional factual support for this claim in
paragraphs four through six of his second affidavit, where he asserted he requested an appeal
on his case and counsel declined to file one. As such, Malar raised and factually supported a
claim which, if true, would entitle him to relief. The State conceded and the district court
found Malar’s trial counsel rendered deficient performance for failing to file the appeal. The
district court also found Malar suffered prejudice as a result of the failure because he lost the
opportunity to appeal. This is because prejudice is presumed when the court finds a petitioner
requested an appeal, but one was not filed. See Roe v. Flores Ortega, 528 U.S. 470 (2000).
       In the district court’s order granting the State’s motion for summary dismissal, the court
found that Malar sought post-conviction relief based on claims of ineffective assistance of

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counsel and a coerced guilty plea.        The district court cites to Malar’s second affidavit,
specifically to paragraphs two through six, when discussing Malar’s request for appeals.
Thereafter, the district court cites generally to the second page of the affidavit and states, in
part: “Petitioner avers that he received ineffective assistance of counsel because he had asked
whether he could appeal his conviction on three occasions and in every instance he was told
that he could not appeal the conviction.” The district court further cites from Malar’s affidavit
to note, “Petitioner alleges that he asked his public defender in May of 2012, September of
2012, and again in December of 2014, if he could appeal his case and each time was told he
could not.” As noted, the district court did not reference the January 2015 discussion regarding
appeal.
          The district court denied the claim erroneously believing it was time-barred.        In
paragraphs two through six of Malar’s second affidavit, Malar references four dates on which
he requested an appeal:       May 2012 (paragraph three); September 2012 (paragraph four);
December 2014 (paragraph five); and January 2015 (paragraph six).             The district court
correctly determined that all of the claims except for the claim relating to the filing of an
appeal from the revocation of probation were time-barred. However, as to the claim regarding
trial counsel’s failure to file an appeal from the revocation of probation, the district court did
not recognize that appealing the case was not limited to the original judgment of conviction,
but could also include appealing from the order revoking probation and the order on the
Rule 35 motion, both of which would be timely claims. Moreover, the district court erred in
failing to make a factual finding regarding the January 2015 request for an appeal and in
finding both the December 14, 2014, and January 9, 2015, claims were time-barred.
      In short, because the claim on which the district court found Malar was entitled to relief
was not time-barred, it was error to grant the State’s motion for summary dismissal.
                                                III.
                                         CONCLUSION
          The district court correctly found that any claims relating to the original judgment of
conviction were time-barred and that trial counsel rendered ineffective assistance of counsel
for failing to file an appeal as requested by Malar from the revocation of probation and the
order on the Rule 35 motion. However, because the district court erroneously held that claim
was time-barred and dismissed Malar’s petition for post-conviction relief, we reverse the order

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summarily dismissing that claim and remand the case for further proceedings consistent with
this opinion. The summary dismissal of all the other claims is affirmed.
       Judge GUTIERREZ and Judge GRATTON CONCUR.




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