               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 42996

MARK CORNELISON,                                  )    2016 Unpublished Opinion No. 438
                                                  )
       Petitioner-Appellant,                      )    Filed: March 18, 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STATE OF IDAHO,                                   )    THIS IS AN UNPUBLISHED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 Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. G. Richard Bevan, District Judge.

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

       Mark Wayne Cornelison, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GRATTON, Judge
       Mark Cornelison appeals from the district court’s judgment summarily dismissing his
petition for post-conviction relief. We affirm.
                                                  I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Cornelison pled guilty to operating a motor vehicle while under the influence of alcohol
and admitted to being a persistent violator. Idaho Code §§ 18-8004, 18-8005(5), 18-8005(9).
The district court sentenced Cornelison to a unified term of twenty years, with ten years
determinate. Cornelison filed an Idaho Criminal Rule 35 motion for reduction of sentence,
which the district court denied. He then appealed the court’s denial of his Rule 35 motion, which
was affirmed on appeal. In the meantime, Cornelison filed a petition for post-conviction relief,
with a supporting affidavit, alleging ineffective assistance of counsel. Cornelison claimed that
his counsel was ineffective for failing to file a motion to suppress, proceeding to sentencing with

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incomplete information, and failing to argue his mental health issues at sentencing. The State
responded with a motion for summary dismissal. Cornelison replied to the motion and the State
filed a brief in response. After conducting a hearing, the district court summarily dismissed the
petition. Cornelison timely appealed.
                                                 II.
                                           ANALYSIS
       A petition for post-conviction relief initiates a civil, rather than criminal, proceeding,
governed by the Idaho Rules of Civil Procedure. I.C. § 19-4907; State v. Yakovac, 145 Idaho
437, 443, 180 P.3d 476, 482 (2008). See also Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642,
646 (2008). Like plaintiffs in other civil actions, the petitioner must prove by a preponderance of
evidence the allegations upon which the request for post-conviction relief is based. Stuart v.
State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); 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, however, in that it must contain more than “a short and plain
statement of the claim” that would suffice for a complaint under I.R.C.P. 8(a)(1). State v. Payne,
146 Idaho 548, 560, 199 P.3d 123, 135 (2008); Goodwin, 138 Idaho at 271, 61 P.3d at 628. The
petition 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. I.C. § 19-4903. In other
words, the petition must present or be accompanied by admissible evidence supporting its
allegations, or it will be subject to dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169,
1172 (Ct. App. 2011); Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994).
       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.” I.C. § 19-4906(c). 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. Payne, 146 Idaho at
561, 199 P.3d at 136; Roman, 125 Idaho at 647, 873 P.2d at 901. Moreover, because the district

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court rather than a jury will be the trier of fact in the event of an evidentiary hearing, the district
court is not constrained to draw inferences in the petitioner’s favor, but is free to arrive at the
most probable inferences to be drawn from the evidence. Yakovac, 145 Idaho at 444, 180 P.3d at
483; Wolf, 152 Idaho at 67, 266 P.3d at 1172; 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. Chavez v. Barrus, 146 Idaho 212, 218, 192 P.3d 1036,
1042 (2008); Hayes, 146 Idaho at 355, 195 P.2d at 714; Farnsworth v. Dairymen’s Creamery
Ass’n, 125 Idaho 866, 868, 876 P.2d 148, 150 (Ct. App. 1994).
       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); McKay v. State, 148 Idaho 567, 570, 225 P.3d 700, 703 (2010); DeRushé v. State, 146
Idaho 599, 603, 200 P.3d 1148, 1152 (2009); Charboneau v. State, 144 Idaho 900, 903, 174 P.3d
870, 873 (2007); Berg v. State, 131 Idaho 517, 518, 960 P.2d 738, 739 (1998); Murphy v. State,
143 Idaho 139, 145, 139 P.3d 741, 747 (Ct. App. 2006); Cootz v. State, 129 Idaho 360, 368, 924
P.2d 622, 630 (Ct. App. 1996). 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 Payne, 146 Idaho at 561, 199 P.3d at 136; 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);
Berg, 131 Idaho at 519, 960 P.2d at 740; Stuart v. State, 118 Idaho 932, 934, 801 P.2d 1283,
1285 (1990); Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008); Roman,
125 Idaho at 647, 873 P.2d at 901. If a genuine issue of material fact is presented, an evidentiary
hearing must be conducted to resolve the factual issues. Kelly, 149 Idaho at 521, 236 P.3d at
1281; Payne, 146 Idaho at 561, 199 P.3d at 136; Goodwin, 138 Idaho at 272, 61 P.3d at 629.



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       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); Berg, 131 Idaho at 519, 960 P.2d at 740; Sheahan, 146 Idaho at 104, 190 P.3d at
923; Roman, 125 Idaho at 647, 873 P.2d at 901. 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); Martinez v. State, 130 Idaho 530, 532, 944 P.2d
127, 129 (Ct. App. 1997).
       On appeal, Cornelison asserts that his counsel was ineffective for failing to file a motion
to suppress, proceeding to sentencing with incomplete information, and failing to argue his
mental health issues at sentencing. A claim of ineffective assistance of counsel may properly be
brought under the Uniform Post-Conviction Procedure Act. Barcella v. State, 148 Idaho 469,
477, 224 P.3d 536, 544 (Ct. App. 2009). To prevail on an ineffective assistance of counsel
claim, the petitioner must show that the attorney’s performance was deficient and that the
petitioner was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687-88
(1984); Self v. State, 145 Idaho 578, 580, 181 P.3d 504, 506 (Ct. App. 2007). To establish a
deficiency, the petitioner has the burden of showing that the attorney’s representation fell below
an objective standard of reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174,
1176 (1988); Knutsen v. State, 144 Idaho 433, 442, 163 P.3d 222, 231 (Ct. App. 2007). Where,
as here, the petitioner was convicted upon a guilty plea, to satisfy the prejudice element, the
petitioner must show that there is a reasonable probability that, but for counsel’s errors, he or she
would not have pled guilty and would have insisted on going to trial. Plant v. State, 143 Idaho
758, 762, 152 P.3d 629, 633 (Ct. App. 2006). This Court has long adhered to the proposition
that tactical or strategic decisions of trial counsel will not be second-guessed on appeal unless
those decisions are based on inadequate preparation, ignorance of relevant law, or other
shortcomings capable of objective evaluation. Gonzales v. State, 151 Idaho 168, 172, 254 P.3d
69, 73 (Ct. App. 2011).
A.     Motion to Suppress
       Cornelison has failed to make a prima facie showing that his counsel was ineffective for
failing to file a motion to suppress because the motion would not have been successful. In a
post-conviction proceeding challenging an attorney’s failure to pursue a motion in the underlying

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criminal action, the district court may consider the probability of success of the motion in
question in determining whether the attorney’s inactivity constituted ineffective assistance. Lint
v. State, 145 Idaho 472, 477, 180 P.3d 511, 516 (Ct. App. 2008). Where the alleged deficiency is
counsel’s failure to file a motion, a conclusion that the motion, if pursued, would not have been
granted by the trial court, is generally determinative of both prongs of the Strickland test. Lint,
145 Idaho at 477-78, 180 P.3d at 516-17.
       A blood alcohol evidentiary test was conducted on Cornelison after the traffic stop.
Cornelison was on parole at the time of the stop. Cornelison’s blood alcohol content was above
the legal limit, and he was charged with felony driving under the influence. Cornelison contends
that counsel should have filed a motion to suppress the results of the blood alcohol content test as
a violation of his Fourth Amendment rights. Specifically, Cornelison asserts that even as a
parolee, he was entitled to Fourth Amendment protections which he did not waive. Parolees and
probationers possess a reduced expectation of privacy against government intrusion. Samson v.
California, 547 U.S. 843, 852 (2006); United States v. Knights, 534 U.S. 112, 119-120 (2001);
State v. Cruz, 144 Idaho 906, 908, 174 P.3d 876, 878 (Ct. App. 2007). The reduced expectation
of privacy renders intrusions by government authorities reasonable when they would otherwise
be unreasonable or invalid under a traditional application of constitutional analysis. State v.
Gawron, 112 Idaho 841, 843, 736 P.2d 1295, 1297 (1987). The Supreme Court has explicitly
held that “the Fourth Amendment does not prohibit a police officer from conducting a
suspicionless search of a parolee.” Samson, 547 U.S. at 857.
       Pursuant to his parole agreement, Cornelison waived certain Fourth Amendment rights
against unreasonable searches and seizures. Specifically, Cornelison agreed to “freely cooperate
and voluntarily submit to medical and chemical tests and examinations for the purpose of
determining if parolee is using, or under the influence of alcohol or narcotics.” The medical and
chemical tests described in Cornelison’s parole agreement include blood alcohol content tests.
Cornelison maintains that the blood test could only be conducted by “any agent of Field and
Community Services,” not law enforcement officers. That terminology, however, applied to a
separate condition of his parole agreement where he waived his constitutional right to be free
from searches of his person or property. Nonetheless, he asserts that if the parole agreement is
read as a whole, the same limitation also applies to the separate testing provision. No such
limitation applies to the testing provision of his parole agreement.         Moreover, “[n]othing

                                                 5
precludes mutually beneficial cooperation between law enforcement officials and parole
officers . . . .” State v. Armstrong, 158 Idaho 364, 370, 347 P.3d 1025, 1031 (Ct. App. 2015).
Thus, even applying the “agent[s] of Field and Community Services” language, the test was
appropriately conducted under the agreement waiver. Cornelison agreed to chemical testing in
his parole agreement and cannot assert such testing violated his Fourth Amendment rights.
Cornelison’s counsel was, therefore, not ineffective for failing to file a motion to suppress
because the motion would have been denied.1
B.     Mental Health Claim
       Cornelison has failed to make a prima facie showing of ineffective assistance of counsel
at sentencing because the district court received all relevant reports before sentencing and
considered his mental health issues at sentencing. Cornelison asserts that his counsel was
ineffective at his sentencing for failing to seek a continuance to present a report of a clinical
social worker and for failing to “say anything about [his] mental health issues” at sentencing.
“Allegations contained in the application are insufficient for the granting of relief when (1) they
are clearly disproved by the record of the original proceedings, or (2) do not justify relief as a
matter of law.” Workman v. State, 144 Idaho 518, 523, 164 P.3d 798, 803 (2007).
       Cornelison maintains that at sentencing the district court had the reports of two
psychologists, but lacked the report of a clinical social worker. Specifically, Cornelison claims
that the district court erroneously found that the report was received by the court before
sentencing because he obtained a copy of the presentence investigative report stamped as
received on November 25, 2013, and his sentencing was conducted on November 26, 2013. Yet
the record clearly shows that the report was stamped and signed by the court clerk as received on
November 21, 2013.2 Next, Cornelison cannot prove prejudice due to his counsel’s failure to

1
       Cornelison also asserts his parole agreement was signed under coercion because he was
told: “sign it or don’t get out of prison.” Our Court has previously rejected this argument.
“Bowing to events, even if one is not happy about them, is not equivalent to being coerced.”
Hoots v. Craven, 146 Idaho 271, 276 n.2, 192 P.3d 1095, 1100 n.2 (Ct. App. 2008) (Defendant
was not coerced when he was required, after being released on parole for ten months, to sign an
agreement to abstain from alcohol or lose his parole.).
2
       Cornelison maintains that the report was not obtained by the court until November 25,
2013, because he received a copy that was stamped as received on November 25, 2013. Our
inquiry is when the report was received by the court, and the copy sent to the court was stamped
and signed by the district court clerk as received on November 21, 2013.
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argue his mental health issues at sentencing because the court did consider his mental health
issues. The district court explained: “the Defendant’s mental health status was but one of many
factors considered by the Court in determining the proper sentence,” and “concluded that the
Defendant presents a substantial risk to the Twin Falls community.”        The district court’s
comments make clear that it did consider Cornelison’s mental health, but regardless imposed the
contested sentence because of community safety concerns. Cornelison cannot show prejudice
and his arguments have been clearly disproven by the record; thus, he has failed to show
ineffective assistance of counsel.
                                                III.
                                         CONCLUSION
       Cornelison has failed to show that his counsel was ineffective for failing to pursue a
motion to suppress, request a continuance so the court could receive an additional report, or
argue his mental health at sentencing. Accordingly, we affirm the district court’s summary
dismissal of Cornelison’s petition for post-conviction relief.
       Chief Judge MELANSON and Judge GUTIERREZ CONCUR.




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