               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 43746

JAY NEWBERRY,                                   )    2017 Unpublished Opinion No. 373
                                                )
       Petitioner-Appellant,                    )    Filed: February 21, 2017
                                                )
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STATE OF IDAHO,                                 )    THIS IS AN UNPUBLISHED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 Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. Randy J. Stoker, District Judge.

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

       Jay Newberry, Boise, pro se appellant.

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

GUTIERREZ, Judge
       Jay Newberry appeals from the district court’s order summarily dismissing Newberry’s
petition for post-conviction relief. He specifically argues the district court erred in sentencing
and in relinquishing jurisdiction. For the reasons explained below, we affirm the district court.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Following a felony driving under the influence (DUI) conviction out of Twin Falls
County, the district court imposed Newberry’s sentence and ordered it to run consecutively to his
DUI sentence out of Ada County. The Twin Falls County district court retained jurisdiction
under the condition that Newberry would be placed in a Therapeutic Community rider program.
Newberry was removed from the program after he violated the probation terms in his Ada
County DUI case. The Twin Falls County district court relinquished jurisdiction and ordered the
original sentence executed.

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       Newberry filed a petition for post-conviction relief. He included various allegations
pertaining to his sentence and the district court’s decision to relinquish jurisdiction.
Additionally, Newberry filed an application for appointment of counsel. The district court
denied this application, reasoning Newberry’s post-conviction claims were frivolous and, as
such, counsel would not assist in developing any claims. After providing notice, the district
court summarily dismissed Newberry’s petition. The district court found that all of Newberry’s
claims were forfeited because Newberry could have raised them on direct appeal, and Newberry
failed to allege facts which, if true, entitled him to relief on any of his post-conviction claims.
Newberry timely appeals.
                                                II.
                                           ANALYSIS
       Newberry asserts the district court erred in summarily dismissing his petition for post-
conviction relief. 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 I.R.C.P. 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 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

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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);
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

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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).
       The scope of post-conviction relief is limited. Knutsen v. State, 144 Idaho 433, 438, 163
P.3d 222, 227 (Ct. App. 2007). A petition for post-conviction relief is not a substitute for an
appeal. I.C. § 19-4901(b). A claim or issue that was or could have been raised on appeal may
not be considered in post-conviction proceedings. Id.; Mendiola v. State, 150 Idaho 345, 348-49,
247 P.3d 210, 213-14 (Ct. App. 2010).
       In his petition, Newberry alleged his sentence was unconstitutional, his sentences should
have run concurrently instead of consecutively, the district court lacked jurisdiction to impose
the sentence, the district court erred in relinquishing jurisdiction, and the case should have been
dismissed. However, such claims were forfeited under Idaho Code Section 19-4901(b) because
Newberry could have raised the claims on direct appeal. Sentencing is a matter left to the
discretion of the sentencing judge and is not ordinarily appropriate for review in a post-
conviction proceeding. Gonzales v. State, 120 Idaho 759, 763, 819 P.2d 1159, 1163 (Ct. App.
1991). Moreover, relief from an order relinquishing jurisdiction should be sought through a
direct appeal. State v. Roberts, 126 Idaho 920, 922, 894 P.2d 153, 155 (Ct. App. 1995).
Newberry’s claims, therefore, create no basis for post-conviction relief. Accordingly, the district
court did not err in summarily dismissing Newberry’s petition for post-conviction relief.
                                               III.
                                        CONCLUSION
       Because Newberry’s claims could have been raised on direct appeal, they were forfeited
and may not be considered in his post-conviction proceedings. We therefore affirm the district
court’s summary dismissal of Newberry’s petition for post-conviction relief. Costs on appeal
awarded to respondent.
       Chief Judge GRATTON and Judge HUSKEY CONCUR.




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