               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 44274

FRANK D. MARKS,                                  )    2017 Unpublished Opinion No. 422
                                                 )
       Petitioner-Appellant,                     )    Filed: March 29, 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STATE OF IDAHO,                                  )    THIS IS AN UNPUBLISHED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 First Judicial District, State of Idaho,
       Kootenai County. Hon. Cynthia K. C. Myer, District Judge.

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

       Nevin, Benjamin, McKay & Bartlett LLP; Deborah A. Whipple, Boise, for
       appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

MELANSON, Judge
       Frank D. Marks appeals from the district court’s judgment summarily dismissing Marks’
petition for post-conviction relief. For the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       Marks was charged with three counts of lewd conduct with a minor under sixteen.
I.C. § 18-1508. The charges were based on allegations that Marks had sexually abused his two
daughters and a stepdaughter. Marks’ trial ended in a mistrial when the jury was unable to reach
a verdict. At his second trial, the jury found Marks guilty of all three counts. The district court
sentenced Marks to concurrent unified terms of life imprisonment, with minimum periods of
confinement of thirty years. Marks filed an I.C.R. 35 motion for reduction of his sentences,



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which the district court denied. Marks appealed, challenging his judgment of conviction and
sentences and the order denying his Rule 35 motion. This Court affirmed. State v. Marks, 156
Idaho 559, 328 P.3d 539 (Ct. App. 2014).
       Marks filed a petition for post-conviction relief raising numerous claims including, inter
alia, that he was denied his right to a fair trial and effective assistance of counsel during his
criminal trial and on appeal. After the State filed its answer but before it filed its motion to
summarily dismiss Marks’ petition, Marks filed a motion to supplement his petition to allow two
additional claims, which the district court denied.     The district court summarily dismissed
Marks’ petition. Marks appeals.
                                               II.
                                  STANDARD OF REVIEW
       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).




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                                               III.
                                           ANALYSIS
A.     Motion to Supplement
       Marks argues that the district court abused its discretion in denying Marks’ “motion to
supplement petition” seeking to add two new claims to his petition for post-conviction relief. In
his supporting brief, Marks alleged that his motion was governed by I.R.C.P. 15(d) because,
subsequent to the filing date of his original petition, he was contacted by a witness who was told
by a jailhouse informant that he fabricated his testimony at Marks’ trial. After considering
Marks’ additional claims, the district court denied Marks’ motion upon finding that his
supplemental claims “would only add cumulative and impeaching evidence that would probably
not lead to an acquittal.”
       On appeal, Marks argues that the district court abused its discretion by denying Marks’
motion to add another claim of ineffective assistance of counsel by analyzing the claim as if it
were subject to a motion for summary dismissal and by ignoring a second claim altogether.
Marks asserts that both the district court and Marks erred in concluding that Marks’ motion was
controlled by I.R.C.P. 15(d). However, Marks contends that this error was irrelevant because,
despite the reference to I.R.C.P. 15(d), the district court did not apply that rule when it denied
Marks’ motion. Instead, Marks argues that the district court improperly subjected the merits of
the additional claims to summary dismissal analysis without first providing notice of its intent to
summarily dismiss Marks’ additional claims. Conversely, the State argues the motion would be
properly denied under I.R.C.P. 15(c), and Marks cannot show that the district court abused its
discretion because Marks invited the error.
       Post-conviction proceedings are governed by the Idaho Rules of Civil Procedure.
McKinney v. State, 133 Idaho 695, 699-700, 992 P.2d 144, 148-49 (1999). The decision to grant
or deny a motion to amend or supplement is left to the sound discretion of the trial court. Jones
v. Watson, 98 Idaho 606, 610, 570 P.2d 284, 288 (1977). When a court’s discretionary decision
is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine whether
the lower court correctly perceived the issue as one of discretion; acted within the boundaries of
such discretion and consistently with any legal standards applicable to the specific choices before




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it; and reached its decision by an exercise of reason. Sun Valley Shopping Ctr., Inc. v. Idaho
Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991). 1
        In this case, Marks sought to add claims that his trial counsel was ineffective for failing
to investigate and rebut a jailhouse informant’s testimony and that Marks was denied a fair trial
because his convictions were based in part on the jailhouse informant’s perjured testimony.
Marks initially argued that his motion was proper under I.R.C.P. 15(d). Idaho Rule of Civil
Procedure 15(d) governs supplemental pleadings and provides, in pertinent part:
               On motion and reasonable notice, the court may, on just terms, permit a
       party to serve a supplemental pleading setting out any transaction, occurrence, or
       event that happened after the date of the pleading to be supplemented.
On appeal, Marks states both he and the district court erred in concluding that Marks’ motion
was controlled by I.R.C.P. 15(d) but that the district court committed reversible error because it
did not apply the rule. Marks has failed to allege under what rule his motion should have been
considered or demonstrate that the district court would have granted the motion under a different
rule. However, even presuming Marks’ argument is correct, he has not shown he is entitled to
relief. An appellate court may affirm a lower court’s decision on a legal theory different from
the one applied by that court. In re Estate of Bagley, 117 Idaho 1091, 1093, 793 P.2d 1263, 1265
(Ct. App. 1990). In this case, Marks’ new claims were based on deficiencies that occurred at the

1
       Notably, Marks does not expressly articulate what prong of the abuse of discretion
standard the district court violated in this matter but merely argues that the district court erred by
conducting improper analysis of Marks’ motion and failing to follow notice of dismissal
requirements. The Idaho Supreme Court recently indicated that it “has seen an increasing
number of cases where a party completely fails to address the factors we consider when
evaluating a claimed abuse of discretion.” State v. Kralovec, 161 Idaho 569, 575 n.2, 388 P.3d
583, 589 n.2 (2017). The Court emphasized that:

       [W]hen a party “does not contend that the district court failed to perceive the issue
       as one of discretion, that the district court failed to act within the boundaries of
       this discretion and consistent with the legal standards applicable to the specific
       choices available to it or that the district court did not reach its decision by an
       exercise of reason,” such a conclusory argument is “fatally deficient” to the
       party’s case. Cummings v. Stephens, 160 Idaho 849, 855, 380 P.3d 168, 174
       (2016). “We will not consider assignments of error not supported by argument
       and authority in the opening brief.” Id.

Kralovec, 161 Idaho at 575 n.2, 388 P.3d at 589 n.2.

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time of his criminal trial, well before the filing of his petition for post-conviction relief. Marks
concedes that his motion to supplement his petition with the two additional claims was not
governed by I.R.C.P. 15(d). Consequently, the only proper ruling was to deny Marks’ motion to
supplement his petition. 2
        Marks argues that the error in relying on I.R.C.P 15(d) to govern the motion was
irrelevant and that the district court abused its discretion because it did not apply the rule when it
denied Marks’ motion. Marks fails to cite authority supporting such an argument or otherwise
show that he was entitled to relief. To the contrary, the doctrine of invited error applies to estop
a party from asserting an error when his or her own conduct induces the commission of the error.
Thomson v. Olsen, 147 Idaho 99, 106, 205 P.3d 1235, 1242 (2009). One may not complain of
errors one has consented to or acquiesced in. Id. In short, invited errors are not reversible. Id.
Marks asked the district court to consider his motion under I.R.C.P. 15(d). Marks cannot now
assign to the district court error that Marks expressly invited. Accordingly, Marks has failed to
show that the district court abused its discretion in denying Marks’ motion to supplement his
petition.
B.      Summary Dismissal
        Marks argues the district court erred in summarily dismissing Marks’ claim that the State
denied him a fair trial by failing to conduct forensic examinations of the victims. Marks also
contends that the district court erred by failing to address three of Marks’ claims when it
summarily dismissed his petition.
        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

2
        Marks asserts additional arguments that the district court abused its discretion in denying
Marks’ motion by failing to provide notice of its intent to dismiss the additional claims and by
failing to address one of his new claims in its dismissal. Because we have determined that
Marks’ motion to supplement his petition was properly denied, we need not address his
additional arguments.

                                                  5
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




                                                  6
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).
        Pursuant to I.C. § 19-4906(b), the district court may sua sponte dismiss a petitioner’s
post-conviction claim if the court provides the petitioner with notice of its intent to do so, the
ground or grounds upon which the claim is to be dismissed, and twenty days for the petitioner to
respond.    Under I.C. § 19-4906(c), the district court may also dismiss a petitioner’s
post-conviction claims on the motion of either party. If the State files and serves a properly
supported motion to dismiss, further notice from the court is ordinarily unnecessary. Martinez v.
State, 126 Idaho 813, 817, 892 P.2d 488, 492 (Ct. App. 1995). The reason that subsection (b),
but not subsection (c), requires a twenty-day notice by the court of intent to dismiss is that, under
subsection (c), the motion itself serves as notice that summary dismissal is being sought.
Saykhamchone v. State, 127 Idaho 319, 322, 900 P.2d 795, 798 (1995).
       1.      Unfair trial
       Marks argues that the district erred in summarily dismissing Marks’ claim that he was
denied a fair trial when the State failed to conduct forensic examinations of the victims. In his
petition for post-conviction relief, Marks alleged that the State denied him his fundamental right
to a fair trial. Specifically, Marks alleged:
               The State of Idaho denied [Marks] a fair trial by immediately taking the
       alleged victims into [its] custody after the allegations were made against [Marks]
       and failing to have an appropriate forensic examination of them made with results
       being provided to the defense and failing to clarify the results of the examinations
       that were made and providing that information to the defense.
The district court summarily dismissed Marks’ claim on the basis that he could have raised the
issue on direct appeal but did not do so. The State asserts that the district court properly
dismissed Marks’ claim because the topic of medical examinations was addressed on direct
appeal and Marks fails to demonstrate why the lack of forensic examinations in this case could
not have been raised at that time. Alternatively, the State argues that, even if the claim was
properly brought in post-conviction, this Court may still affirm summary dismissal of the claim.
The State contends that, because Marks received notice of potential dismissal for failure to show
the State had a duty to conduct the alleged forensic examinations, this Court could conclude that
Marks’ claim was properly dismissed.



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       The Uniform Post-Conviction Procedure Act is available for a petitioner to show that his
or her conviction was in violation of his or her constitution rights.        I.C. § 19-4901(a)(1).
However, 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). Idaho Code Section 19-4901(b) provides, in relevant part:
       Any issue which could have been raised on direct appeal, but was not, is forfeited
       and may not be considered in post-conviction proceedings, unless it appears to the
       court, on the basis of a substantial factual showing by affidavit, deposition or
       otherwise, that the asserted basis for relief raises a substantial doubt about the
       reliability of the finding of guilt and could not, in the exercise of due diligence,
       have been presented earlier.
       In this case, Marks’ claim is that the State failed to conduct appropriate forensic
examinations of the victims. Marks has not articulated what constitutes appropriate forensic
examinations. The record indicates that the scope and nature of the medical examinations
conducted on the victims were discussed at trial and addressed on direct appeal. Although Marks
does not specify what he now identifies as “appropriate forensic examinations,” he would have
been aware at the time of both his trial and direct appeal what actual examinations were or were
not conducted. Consequently, the alleged prejudicial absence of any forensic examinations
would have been known prior to trial and on direct appeal.
       On appeal, Marks argues that his forensic examination claim was properly brought for the
first time during post-conviction because the facts necessary to prove the claim were not
developed during the criminal trial. Specifically, Marks asserts that, to prove his claim, he
needed to present evidence as to the nature of the forensic examinations that should have been
conducted, the State’s failure to conduct such examinations, and how failure to conduct those
examinations rendered his criminal trial unfair--none of which were developed trial. In support
of this assertion, Marks cites Parsons v. State, 113 Idaho 421, 745 P.2d 300 (Ct. App. 1987). In
Parsons, we explained:
       [I]f the post-conviction application is grounded in the same facts and issues
       presented on appeal, summary dismissal is appropriate. In the converse,
       post-conviction proceedings do not preclude claims or issues based upon facts
       beyond the record presented on appeal, if those facts could not, or customarily
       would not, have been developed in the trial on criminal charges.
Id. at 426, 745 P.2d at 305 (citation omitted).


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       In this case, Marks asserts that the State’s failure to conduct forensic examinations of the
victims led to an unfair trial, but Marks has provided no specific evidence to substantiate the
claim beyond his assertion. Presumably, Marks’ contention is that the State erred in failing to
conduct certain examinations that Marks believes could have suggested he was not guilty.
However, on appeal, Marks has not identified what forensic examinations were required in this
case, what evidence was necessary to prove the claim, or specify why the record of his criminal
case was inadequate to substantiate his claim. Marks has also failed to allege, much less show,
that the necessary facts to prove his claim would customarily not have been developed at his trial
through an exercise of due diligence, especially when he knew the type of examinations that
were conducted at the time of his trial. Certainly if Marks felt that he was prejudiced by the
State’s examinations of the victims, or lack thereof, Marks’ counsel was free to object, address
the weakness on cross-examination and with expert testimony, or request the appropriate
examinations Marks believes were required. Furthermore, Marks has also failed to offer beyond
a bare and conclusory allegation in his verified petition any affidavit, deposition, or other
evidence that would constitute a factual showing sufficient to raise a substantial doubt about the
reliability of the finding of guilt. For these reasons we cannot conclude that the district court
erred in finding that Marks could have brought his claim on direct appeal.
       Moreover, even if we were to assume that Marks’ forensic examination claim is
cognizable in post-conviction, such a conclusion does not automatically require reversal. Where
the lower court reaches the correct result, albeit by reliance on an erroneous theory, this Court
will affirm the order on the correct theory. Ridgley, 148 Idaho at 676, 227 P.3d at 930. This
Court employs the same standards on appellate review that the trial court applies in considering
summary dismissal of a petition for post-conviction relief and may affirm the district court if the
claim can be properly dismissed for the reasons articulated in the State’s motion for summary
dismissal. See id.
       In this case, Marks asserts he was denied a fair trial because the State failed to conduct
forensic examinations of the victims. The State moved for summary dismissal of Marks’ claim
on the basis that the State does not have a duty to force a victim to undergo a forensic
examination. Thus, Marks was on notice of the potential dismissal of his claim on this basis.




                                                9
       Marks further argues that the question is not whether the State had a duty to force a
victim to undergo a forensic examination, but whether the lack of forensic examinations resulted
in the denial of a fair trial. Marks has failed to cite authority that the absence of forensic
examinations render a trial unfair and has provided no substantial factual basis for why this
Court should do so in this case. Furthermore, Marks’ petition alleges that “the State for Idaho
denied [Marks] a fair trial” by failing to conduct forensic examinations of the victims. This
allegation implies that the State bore the burden of conducting the alleged forensic examinations
of the victims. However, Marks has failed to show that it was the State’s duty to ensure that the
alleged forensic examinations were conducted on the victims in the course of its investigation.
Consequently, Marks’ claim fails as a matter of law. Accordingly, the district court did not err in
summarily dismissing the claim.
       2.      Unaddressed claims
       Marks argues the district court failed to address three of Marks’ claims when it
summarily dismissed Marks’ petition and that the matter should be remanded with instructions to
rule on the claims. The State argues Marks waived this argument on appeal because he should
have made a request to the district court for specific findings on the three claims.
       In this case, the State filed a motion to summarily dismiss Marks’ petition and submitted
a brief addressing his allegations.    Marks filed a response and the district court held oral
argument relating to the State’s motion. The district court thereafter granted the State’s motion
for summary dismissal after concluding that Marks’ allegations did not justify relief as a matter
of law, that Marks failed to present evidence making a prima facie case as to each element of his
claims, that multiple claims could have been raised on appeal, and that Marks had failed to show
the outcome of the proceedings would have been different. Subsequently, the district court ruled
that, based on the arguments presented at the hearing and on the parties’ briefs, Marks’ petition
for post-conviction relief be dismissed. Notably, Marks does not assert that he lacked the
requisite notice prior to the district court’s summary dismissal of any claim or the petition. See
I.C. § 19-4906(b). Nor does Marks argue that the State’s motion for summary dismissal was in
some way deficient. See I.C. § 19-4906(c). Rather, Marks contends that the district court failed
to specifically address three claims and cites three authorities for the general proposition that the
district court’s failure to rule on these claims was an abuse of discretion. We are not persuaded.


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       Even assuming Marks’ argument is correct, we have previously held that a party waives a
claim and fails to preserve it for appeal when he or she fails to utilize a post-judgment procedural
avenue to bring the district court’s failure to address a claim to its attention via a post-judgment
procedural filing. See Caldwell v. State, 159 Idaho 233, 242, 358 P.3d 794, 803 (Ct. App. 2015).
After the district court entered an order granting the State’s motion for summary dismissal,
Marks would have been aware of the district court’s alleged omission. However, Marks failed to
avail himself of any procedural avenue to request specific findings or otherwise bring any
alleged omission to the district court’s attention. Instead, Marks now seeks to allege error on the
part of the district court, and we will not consider such an argument for the first time on appeal.
                                                IV.
                                         CONCLUSION
       Marks has failed to show that the district court abused its discretion in denying Marks’
motion to supplement his petition. The district court did not err in summarily dismissing Marks’
claim that the State deprived Marks of a fair trial by failing to conduct forensic examinations of
the victims. Marks waived his argument related to the district court’s failure to specifically
address three claims in its order summarily dismissing Marks’ petition. Accordingly, the district
court’s judgment summarily dismissing Marks’ petition for post-conviction relief is affirmed.
       Chief Judge GRATTON and Judge HUSKEY, CONCUR.




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