               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 43843

KENT TORREY OSTLER,                               )    2016 Unpublished Opinion No. 814
                                                  )
       Petitioner-Appellant,                      )    Filed: December 9, 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STATE OF IDAHO,                                   )    THIS IS AN UNPUBLISHED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 Seventh Judicial District, State of Idaho,
       Madison County. Hon. Darren B. Simpson, District Judge.

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

       Eric D. Fredericksen, State Appellate Public Defender; Jason C. Pintler, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GUTIERREZ, Judge
       Kent Torrey Ostler appeals from the district court’s order summarily dismissing Ostler’s
petition for post-conviction relief. We affirm.
                                                  I.
                       FACTUAL & PROCEDURAL BACKGROUND
       Ostler pled guilty to one count of lewd conduct with a minor under sixteen, Idaho Code
§ 18-1508.   In exchange for Ostler’s guilty plea, the State dismissed a persistent violator
enhancement.     Prior to the completion of Ostler’s presentence report and psychosexual
evaluation, Ostler filed a pro se motion to withdraw his guilty plea, which the district court
denied. The court imposed a unified sentence of thirty years, with ten years determinate. This
Court affirmed Ostler’s judgment of conviction and sentence on direct appeal. State v. Ostler,
Docket No. 40984 (Ct. App. Feb. 25, 2014).

                                                       1
       Ostler then filed a pro se verified post-conviction petition and supporting notarized
affidavit for post-conviction relief. His petition alleged various claims of ineffective assistance
of trial counsel, denial of counsel, and prosecutorial misconduct. Relevant to this appeal, the
petition and affidavits specifically alleged trial counsel was ineffective for “manipulat[ing]
[Ostler] into pleading guilty by telling [Ostler] he had to plead guilty in order to do the
[psychosexual] evaluation.” Ostler contends he was told by counsel that if Ostler “was deemed a
low risk that a deal in regards to sentence would be made.” Ostler asserts he would not have
“entered a plea of guilty had [he] not been manipulated.” The district court then appointed
counsel to represent Ostler’s post-conviction claims.
       After filing an answer to Ostler’s petition, the State moved for summary dismissal. The
district court held a hearing on the motion after which it granted the State’s motion and
summarily dismissed Ostler’s post-conviction petition. Ostler timely appeals.
                                                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 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

                                                      2
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);
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

                                                      3
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).
       In his appeal, Ostler argues the district court erred in summarily dismissing one particular
claim from Ostler’s post-conviction petition alleging that his trial attorney rendered ineffective
assistance. 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).
       In his petition, Ostler states his attorney’s representation was deficient because “counsel
manipulated [Ostler] into pleading guilty by telling [Ostler] he had to plead guilty in order to do
the [psychosexual] evaluation.” Correspondingly, in his supporting notarized affidavit, Ostler
contends his counsel told Ostler that if he “was deemed a low risk that a deal in regards to
sentence would be made.” Ostler then avers he would not have “entered a plea of guilty had [he]
not been manipulated.”
       First, regarding the deficiency prong of Strickland, we hold that Ostler has failed to allege
sufficient facts to make a prima facie showing of deficiency. Although an attorney’s attempt to
manipulate a defendant into accepting a plea agreement certainly rises to the level of deficient
performance, a court is not required to accept a petitioner’s factual allegations that are clearly
disproven by the record of the criminal proceedings. Kelly, 159 Idaho at 521, 236 P.3d at 1281.
In its order dismissing this claim, the district court found that Ostler’s statements in his post-

                                                     4
conviction petition were directly contradicted by his statements made under oath during his
change of plea hearing. During that hearing, Ostler attested to understanding that there were no
agreements as to the sentence he would receive upon pleading guilty. Conversely, in his petition,
Ostler appears to contend he only pleaded guilty on the premise that he stood to get a “deal in
regards to sentence.” This allegation directly contradicts Ostler’s earlier sworn testimony, thus it
does not create a genuine issue of material fact showing a deficiency.1
       Further, regarding the prejudice prong of Strickland, we hold that Ostler has failed to
allege sufficient facts to make a prima facie showing of prejudice. Even if we held that trial
counsel misadvised or manipulated Ostler, to establish prejudice, Ostler was required to show
that he would not have pled guilty and would have insisted on going to trial. See Icanovic v.
State, 159 Idaho 524, 529, 363 P.3d 365, 370 (2015). Such decision must have been rational
under the circumstances. Id.
       Even after reading all of Ostler’s claims and arguments in his petition and affidavit
together, Ostler fails to rationally connect the purported “manipulation” and his decision to plead
guilty. Ostler does not allege that, had he been correctly informed by counsel of the possibility
of obtaining a psychosexual evaluation after trial, Ostler would have pleaded not guilty and
insisted on going to trial. Ostler’s failure to allege a causal connection between the purported
deficiency of counsel and his decision to plead guilty falls short of establishing a prima facie
showing of prejudice. See Hill v. Lockhart, 474 U.S. 52, 60 (1985) (finding no prejudice where
“[p]etitioner did not allege in his habeas petition that, had counsel correctly informed him about
his parole eligibility date, he would have pleaded not guilty”); Ridgley, 148 Idaho at 677, 227
P.3d at 931 (finding no prejudice where petitioner failed to “link his claims of deficient
performance with his plea of guilty”).




1
        We do acknowledge, and the State concedes, that the district court employed an
erroneous standard when considering whether the factual allegations within Ostler’s affidavit
were sufficient to raise a genuine issue of material fact. We have previously held that factual
allegations based upon the personal knowledge of the petitioner constitute admissible evidence
when presented through a verified petition or notarized affidavit. See Bias v. State, 159 Idaho
696, 704, 365 P.3d 1050, 1058 (Ct. App. 2015). Thus, Ostler was not required to have an
affidavit admitting to wrongdoing from trial counsel before the court could consider the
allegations.
                                                     5
       In sum, Ostler has failed to allege sufficient facts to raise a genuine issue of material fact
to satisfy either Strickland prong. Thus, the district court did not err in summarily dismissing
Ostler’s post-conviction claim of ineffective assistance of counsel.
                                                III.
                                         CONCLUSION
       Ostler did not allege sufficient facts in his petition for post-conviction relief to raise a
genuine issue of material fact that his trial counsel rendered ineffective assistance. Therefore, we
affirm the district court’s judgment summarily dismissing Ostler’s petition for post-conviction
relief. Costs on appeal are awarded to the State.
       Judge GRATTON and Judge HUSKEY CONCUR.




                                                       6
