               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 46032

MIGUEL Z. ZAVALA,                                )
                                                 )    Filed: October 31, 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                                                 )    THIS IS AN UNPUBLISHED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 Third Judicial District, State of Idaho,
       Owyhee County. Hon. Thomas W. Whitney, District Judge.

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

       Robyn A. Fyffe, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Andrew V. Wake, Deputy
       Attorney General, Boise, for respondent. Andrew V. Wake argued.
                 ________________________________________________

LORELLO, Judge
       Miguel Z. Zavala appeals from a judgment of the district court summarily dismissing
Zavala’s petition for post-conviction relief. For the reasons set forth below, we affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
        In the underlying criminal case, the State charged Zavala with attempted first degree
murder. The case proceeded to a jury trial. The trial court instructed the jury on the elements of
attempted first degree murder and, as an included offense, aggravated battery. The jury acquitted
Zavala of attempted first degree murder, but found him guilty of aggravated battery. Zavala
appealed, claiming only that his sentence constituted an abuse of discretion. This Court affirmed
Zavala’s judgment of conviction and sentence in an unpublished opinion. State v. Zavala,
Docket No. 43906 (Ct. App. Nov. 9, 2016).


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       Subsequently, Zavala filed a pro se petition for post-conviction relief and requested the
appointment of counsel. The district court appointed counsel and set a deadline for the filing of
an amended petition. Ultimately, Zavala’s counsel did not file an amended petition. Rather,
Zavala’s counsel requested that the district court proceed on Zavala’s pro se petition and
supporting materials. The district court interpreted Zavala’s pro se petition as asserting claims of
ineffective assistance of counsel, 1 prosecutorial misconduct, and abuse of discretion in certain
evidentiary rulings by the trial court. To support these claims, Zavala attached to his petition his
affidavit along with police reports, medical records, and invoices for vehicle repairs connected to
an unrelated incident allegedly perpetrated by the victim.
       The district court gave notice of its intent to summarily dismiss Zavala’s petition and
provided him twenty days to respond.          After reviewing Zavala’s response, the materials
submitted with the petition and certain materials from the underlying criminal case, 2 the district
court summarily dismissed Zavala’s petition. Zavala appeals.
                                                 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).




1
        Specifically, Zavala’s petition asserted that his trial counsel was ineffective by failing to
object to the aggravated battery instruction, present evidence of the victim’s violent disposition,
and impeach the victim with inconsistent statements.
2
       In a separate order issued contemporaneously with the district court’s notice of intent to
dismiss, the district court took judicial notice of the information, the court minutes from the
second day of Zavala’s jury trial, the jury instructions, and Zavala’s amended notice of appeal.

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                                                 III.
                                             ANALYSIS
         Zavala raises three claims of error on appeal: (1) the trial court lacked subject matter
jurisdiction over the aggravated battery charge because it is not an included offense of attempted
first degree murder; (2) the district court erred in summarily dismissing Zavala’s ineffective
assistance of counsel and prosecutorial misconduct claims; and (3) the district court erred in
dismissing Zavala’s petition without considering the transcripts from his underlying criminal
case. The State responds that: (1) I.C. § 19-4901(b) bars Zavala’s subject matter jurisdiction
claim because he failed to raise it on direct appeal and the claim otherwise fails on the merits;
(2) the district court properly dismissed Zavala’s petition without an evidentiary hearing because
he failed to provide evidence substantiating his ineffective assistance of counsel claim and failed
to raise his prosecutorial misconduct claim on direct appeal; and (3) the district court had no
obligation to sua sponte review the underlying transcripts or compel the State to file the
transcripts.   We hold that Zavala has failed to show the district court erred in summarily
dismissing his post-conviction petition.
A.       Subject Matter Jurisdiction
         Zavala argues that the trial court in his criminal case lost subject matter jurisdiction once
the jury acquitted him of attempted first degree murder.            According to Zavala, because
aggravated battery was not properly submitted to the jury as an included offense, there was no
jurisdiction to convict him of it. This claim was not raised at trial or on direct appeal, nor was it
alleged as a substantive claim in Zavala’s petition.         The only reference to subject matter
jurisdiction was in Zavala’s supporting affidavit where he wrote:
                When a jury is asked without objection to consider an included offense
         and the jury convicts the defendant of that offense does the Idaho Supreme
         Court’s opinion in State v. Flegel, 151 Idaho 525, 261 P.3d 519 (2011) require
         reversal based on lack of subject matter jurisdiction if the appellate court
         determines that the offense of conviction does not qualify as an included offense
         or does the appellate court analyze the issue as instructional error under the
         fundamental error standard of review.
The State contends that I.C. § 19-4901(b) bars consideration of this argument and the claim
otherwise fails on the merits. We hold that this claim fails because it is not properly before the
Court.


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          The district court in this case clearly had subject matter jurisdiction. Zavala does not
appear to contend otherwise.       Rather, Zavala’s argument is based on an alleged lack of
jurisdiction in his underlying criminal case.         The Idaho Supreme Court rejected a similar
argument in Brown v. State, 159 Idaho 496, 363 P.3d 337 (2015). In Brown, a petitioner seeking
post-conviction relief appealed the dismissal of his petition, arguing for the first time on appeal
that the trial court in the underlying criminal case exceeded its subject matter jurisdiction. The
Court held that, because a criminal case is separate from a post-conviction case, the petitioner
could not challenge the jurisdiction in the criminal case for the first time on appeal in the
post-conviction case. Id. at 498, 363 P.3d at 339. Because the petitioner did not challenge the
judgment in the post-conviction case, the Court affirmed the judgment. Id.
          Brown is dispositive of Zavala’s jurisdictional argument. Although Zavala challenges the
dismissal of his post-conviction petition on other grounds in addition to his subject matter
jurisdiction claim, his subject matter jurisdiction argument does not present a valid challenge to
the judgment in this case. Therefore, Zavala’s subject matter jurisdiction claim cannot provide a
basis to overturn the district court’s judgment dismissing his post-conviction petition. 3
B.        Summary Dismissal
          Claims in a post-conviction petition 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).
          1.     Prosecutorial misconduct
          Zavala argues that the district court erred in summarily dismissing his prosecutorial
misconduct claim based on Zavala’s failure to raise the claim on direct appeal as required by


3
        Zavala’s subject matter jurisdiction claim also fails on the merits. Under Idaho law, a
trial court retains subject matter jurisdiction through the delivery of a jury verdict even if the
court erroneously instructs the jury on an included offense. See State v. McIntosh, 160 Idaho 1,
7, 368 P.3d 621, 627 (2016); State v. Herrera, 149 Idaho 216, 221-22, 233 P.3d 147, 152-53 (Ct.
App. 2009).



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I.C. § 19-4901(b). Zavala contends that an unpreserved prosecutorial misconduct claim “that
does not meet the fundamental error test” cannot be raised on direct appeal. The State contends
that Zavala’s arguments regarding the dismissal of his prosecutorial misconduct claim should not
be considered because they are being raised for the first time on appeal. Alternatively, the State
contends that the district court correctly dismissed this claim because Zavala failed to support it
with admissible evidence and his argument that unobjected-to prosecutorial misconduct should
never be barred under I.C. § 19-4901(b) otherwise fails on the merits. We affirm the district
court’s summary dismissal of Zavala’s prosecutorial misconduct claim on the unchallenged basis
that Zavala failed to support the claim with admissible evidence.
       In his petition, Zavala alleged that the “prosecutor used false testimony that he/she knew
or had reason to believe was false.”        In its notice of intent to dismiss, the district court
characterized the substance of this claim as alleging “that the prosecutor knew the victim was
lying, and that the introduction of a knife at trial amounted to false evidence.” The district court
indicated its intent to dismiss this claim on two grounds. First, the district court stated that the
claim could have been raised on direct appeal and Zavala failed to present any evidence
explaining why he failed to do so. Second, the district court stated that Zavala failed to support
his claim with admissible evidence. In his response to the district court’s notice, Zavala asserted
that the district court failed to address the allegation in his affidavit that the prosecutor
committed misconduct by failing to “present testimony from the second, alleged victim” who
would have provided a “conflicting account” of events.              As to the district court’s notice
regarding raising the claim on direct appeal, Zavala responded that his appellate attorney
“authored a letter indicating he would not raise any issue on appeal other than the propriety of
[Zavala’s] sentence.” Zavala indicated he requested a copy of that letter from appellate counsel
but had not received it. The district court subsequently issued an order dismissing Zavala’s
prosecutorial misconduct claim.       In that order, the district court reiterated dismissal was
appropriate because the claim could have been raised on direct appeal. The district court also
noted that Zavala failed to provide any evidence that his “prosecutorial misconduct claim raises a
substantial doubt about the reliability of the finding of guilt.”
       On appeal, Zavala only challenges whether his prosecutorial misconduct claim should
have been dismissed pursuant to I.C. § 19-4901(b). However, the district court also notified


                                                   5
Zavala that his prosecutorial misconduct claim was subject to summary dismissal because he
failed to support the claim with admissible evidence. Because Zavala does not challenge this
basis for dismissal, he has failed to show the district court erred in this regard. See Brown v.
Greenheart, 157 Idaho 156, 165, 335 P.3d 1, 10 (2014).
       2.      Ineffective assistance of counsel--aggravated battery instruction
       Zavala argues that the district court erred in summarily dismissing his claim that trial
counsel was ineffective for failing to object to the aggravated battery instruction on the basis that
it was not an included offense of attempted first degree murder. The State contends that the
district court correctly dismissed Zavala’s ineffective assistance claim because he failed to
support it with admissible evidence.       We hold that summary dismissal of this claim was
appropriate because Zavala did not allege a genuine issue of material fact that counsel was
ineffective for failing to object to the aggravated battery instruction.
       In Schoger v. State, 148 Idaho 622, 624, 226 P.3d 1269, 1271 (2010), the Idaho Supreme
Court articulated the standard for summary dismissal of an ineffective assistance of counsel
claim as follows:
               For an application for post-conviction relief based on a claim of
       ineffective assistance of counsel to survive summary dismissal, the petitioner
       must establish that: (1) a material issue of fact exists as to whether counsel’s
       performance was deficient; and (2) a material issue of fact exists as to whether the
       deficiency prejudiced the claimant’s case.
To establish deficiency, the petitioner has the burden of showing that the attorney’s
representation fell below an objective standard of reasonableness. Strickland v. Washington, 466
U.S. 668, 687-88 (1984).       To establish prejudice, the petitioner must show a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. Id. at 694. A reasonable probability is one that is sufficient to undermine
confidence in the outcome. Id.
       In his petition, Zavala alleged that trial counsel was ineffective for failing to object to the
aggravated battery jury instruction because aggravated battery was not a proper included offense
to attempted first degree murder. The district court notified Zavala of its intent to dismiss this
claim, stating: (1) the jury was properly instructed because “the criminal information plainly
alleges facts that meet the elements of aggravated battery” and (2) “a jury determined those facts



                                                  6
had been proven.” The district court therefore concluded there was no basis to find trial
counsel’s representation was deficient or that Zavala was prejudiced as a result of counsel’s
failure to object to the aggravated battery instruction. The district court subsequently dismissed
the claim for the reasons stated in its notice. Although aggravated battery was not an included
offense of attempted first degree murder as pled in the information, Zavala nevertheless failed to
allege a genuine issue of material fact that counsel was ineffective for failing to object to the
aggravated battery instruction.
       There are two ways in which a criminal charge can be deemed an included offense of
another criminal charge. The first is the statutory theory and the second is the pleading theory.
Neither party contends that the statutory theory applies.         Rather, both parties argue the
applicability of the pleading theory. The pleading theory provides that an included offense is one
that is necessarily proven if the facts alleged in the charging document are established. State v.
McIntosh, 160 Idaho 1, 5, 368 P.3d 621, 625 (2016). The information in Zavala’s criminal case
alleged, in relevant part, that Zavala “willfully, unlawfully, deliberately, with premeditation, and
with malice aforethought, attempt[ed] to kill and murder a human being” by “attempting to run
[the victim] over with an automobile and/or by attempting to stab or slice him with a knife.” The
pertinent elements for attempted first degree murder required the jury to find that Zavala
attempted to commit first degree murder by “one or more of the manners alleged in the
information.” The aggravated battery charge the jury was instructed to consider as an included
offense read, in part:
              If you find that the state has failed to prove beyond a reasonable doubt that
       [Zavala] committed Attempted First Degree Murder, then you shall consider
       whether the state has proved beyond a reasonable doubt the included offence of
       Aggravated battery.
              In order for [Zavala] to be convicted of Aggravated Battery the state must
       prove each of the following facts beyond a reasonable doubt:
              ....
              4.      [Zavala] committed an act of battery on the victim;
              5.      As a result of the battery the victim suffered great bodily harm or
       permanent disfigurement or permanent disability.
       For aggravated battery to be an included offense of attempted first degree murder under
the pleading theory, the information charging Zavala with attempted first degree murder must
have alleged facts that would have necessarily proven he committed aggravated battery as


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defined by the jury instruction. It did not. The information is devoid of any allegation that
Zavala actually battered the victim or that the victim suffered great bodily harm, permanent
disfigurement, or permanent disability as a result of any battery. Thus, aggravated battery cannot
be considered an included offense of attempted first degree murder as pled in the information.
Thus, it was error to summarily dismiss Zavala’s claim that trial counsel was ineffective for
failing to object to the instruction on this basis.
        Nevertheless, the question remains whether Zavala alleged a genuine issue of material
fact in support of his claim that counsel was ineffective for failing to object to the aggravated
battery instruction. Paragraph nine of the post-conviction petition required Zavala to list his
ineffective assistance of counsel claims. In that list, Zavala alleged: “my trial attorney failed to
object on the jury instruction. [A]ggravated battery is not a lesser included offense.” However,
that aggravated battery was not a lesser included offense of attempted first degree murder under
the pleading theory does not mean that counsel was deficient for not objecting to the instruction.
For example, counsel may not have objected if the evidence was that Zavala stabbed the victim,
in which case any variance between the language of the information and the jury instructions
would not have been prejudicial. See State v. Gas, 161 Idaho 588, 592-93, 388 P.3d 912, 916-17
(Ct. App. 2016) (rejecting variance claim because the defendant had notice of the factual basis of
the charge and was not thwarted in his defense). The court minutes considered by the district
court are consistent with such a view of the evidence. In conjunction with his motion for
judgment of acquittal, trial counsel asked the court to dismiss the attempted first degree murder
charge and submit the case to the jury only on aggravated battery with a self-defense instruction.
The record, therefore, indicates that trial counsel concluded there was sufficient evidence to
submit the charge of aggravated battery to the jury with no indication that Zavala was misled or
embarrassed in his defense by submission of such a charge. Zavala failed to allege any facts or
submit any evidence that would overcome the presumption that counsel’s actions in this regard
were not constitutionally deficient or that Zavala was prejudiced as a result. Zavala concedes as
much on appeal, but contends the failure of proof could be because the trial transcript was not
considered by the district court. Setting aside the requirement that it was Zavala’s burden to
allege facts in support of his claim in the first instance, his assertion, for the first time on appeal,
that the trial transcript might contain evidence that would establish a prima facie case that


                                                      8
counsel’s performance was deficient is inadequate to show the district court erred in summarily
dismissing his claim. See Roman v. State, 125 Idaho 644, 647-50, 873 P.2d 898, 901-04 (Ct.
App. 1994) (affirming summary dismissal where claims were based on conclusory allegations,
unsupported by any fact). Because Zavala did not allege a genuine issue of material fact in
relation to his claim that counsel was ineffective for failing to object to the aggravated battery
instruction, the district court did not err in summarily dismissing this claim.
C.     Additional Records and Transcripts
       Zavala argues that the district court erred in summarily dismissing his post-conviction
petition without first compelling the State to “produce records and transcripts from the
underlying criminal proceeding that were material to [his] claims or noticing those transcripts of
its own accord.” Zavala contends that such was required by I.C. § 19-4906. The State responds
that the district court had no obligation to judicially notice or compel the State to file any records
from the underlying criminal case absent a motion by Zavala. The State further argues that
Zavala invited any error on this point by requesting that the district court evaluate his petition
based only upon the evidence he previously submitted.             We decline to consider Zavala’s
complaints about the State’s failure to file records with its answer and the district court’s failure
to sua sponte judicially notice additional records because those complaints are being raised for
the first time on appeal.
       Idaho Code Section 19-4906(a) provides that, if a post-conviction petition is not
accompanied by the record of the challenged proceedings, the State shall file with its answer the
record or portions thereof that are material to the questions raised in the petition. Although the
State filed an answer, it did not file any portions of the record. Zavala did not object to the
State’s failure to file records nor did he ask the district court to compel the State to file additional
records.
       Idaho Code Section 19-4906(b) provides that a court may provide notice of its intent to
dismiss a post-conviction petition if it is satisfied, on the basis of the petition, the answer or
motion and the record, that the petitioner is not entitled to post-conviction relief and no purpose
would be served by any further proceedings. Zavala appears to construe this section as requiring
a court to sua sponte take judicial notice of portions of the record relevant to a petitioner’s claim
prior to summary dismissal. Although nothing in the plain language of the statute requires a


                                                   9
district court to do so, the district court in this case took judicial notice of several documents
from Zavala’s underlying criminal case prior to dismissing his petition. Zavala did not object to
the scope of the district court’s judicial notice nor ask the district court to take judicial notice of
additional documents.
       Generally, issues not raised below may not be considered for the first time on appeal.
Sanchez v. Arave, 120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991). Zavala’s complaints about
the State’s and district court’s inaction are being raised for the first time on appeal. As such, we
decline to consider them.
                                                 IV.
                                          CONCLUSION
       Zavala’s claim that the trial court in the underlying criminal case exceeded its subject
matter jurisdiction is not properly before the Court. The district court did not err in summarily
dismissing Zavala’s prosecutorial misconduct claim on the unchallenged basis that he failed to
support the claim with admissible evidence. Zavala did not allege a genuine issue of material
fact that counsel was ineffective for failing to object to the aggravated battery instruction. We
decline to consider Zavala’s complaints about the State’s failure to file records with its answer
and the district court’s failure to sua sponte judicially notice additional records because those
complaints are being raised for the first time on appeal. Accordingly, the judgment summarily
dismissing Zavala’s petition for post-conviction relief is affirmed.
       Chief Judge GRATTON and Judge BRAILSFORD, CONCUR.




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