               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41783

DONALD BRUCE RUSSELL,                            )        2015 Unpublished Opinion No. 467
                                                 )
       Petitioner-Appellant,                     )        Filed: April 16, 2015
                                                 )
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STATE OF IDAHO,                                  )        THIS IS AN UNPUBLISHED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. Michael J. Griffin, District Judge.

       Summary dismissal of petition for post-conviction relief, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Ben P. McGreevy, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Donald Bruce Russell appeals from the district court’s summary dismissal of his petition
for post-conviction relief.    Russell claims his trial counsel was ineffective by failing to
adequately present mitigation evidence at his sentencing hearing. We affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Pursuant to a plea agreement, Russell pled guilty to lewd conduct with a minor child
under sixteen, Idaho Code § 18-1508. The district court imposed a unified sentence of fifteen
years with a five-year determinate term. Subsequently, Russell filed a pro se petition for post-
conviction relief asserting claims of ineffective assistance of counsel and due process violations.
Russell also filed a motion for appointment of counsel.
       The court appointed counsel to represent Russell in his post-conviction proceedings, and
through counsel Russell filed an amended petition for post-conviction relief. In his amended



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petition, Russell asserted seven claims of ineffective assistance of counsel. After providing
notice, the district court summarily dismissed portions of Russell’s amended petition, including
whether Russell’s trial counsel failed to adequately present mitigation evidence “upon the
grounds that [Russell’s] allegations are bare conclusory statements and not supported by
admissible evidence, and do not state grounds upon which relief can be granted.” However, the
court reserved two issues for hearing. Following an evidentiary hearing on the two reserved
issues, the district court denied Russell’s amended petition for post-conviction relief. Russell
timely appeals.
                                                 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


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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
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,


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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.
        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).
        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). To establish prejudice, the petitioner must show a
reasonable probability that, but for the attorney’s deficient performance, the outcome of the trial
would have been different. Aragon, 114 Idaho at 761, 760 P.2d at 1177; Knutsen, 144 Idaho at
442, 163 P.3d at 231. 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).
        On appeal, Russell argues that the district court erred when it summarily dismissed his
petition for post-conviction relief on the issue of whether his trial counsel was ineffective for
failing to adequately present mitigation evidence at his sentencing hearing. In support of his
claim, Russell cites to the affidavit filed in support of his petition which states in relevant part:




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               47. I asked my attorney to bring up specific issues regarding the timing of
       doctor’s appointments I had scheduled in aid of mitigation at sentencing and he
       failed to do so; and
               48. I asked that he obtain proof of the previously scheduled doctor
       appointments as proof of my commitment to seek help toward rehabilitation and
       he refused . . . .

       As noted, the district court held that Russell’s allegations are “bare conclusory statements
and not supported by admissible evidence, and do not state grounds upon which relief can be
granted.” We agree. Russell’s conclusory statements do not establish that his defense counsel’s
actions were deficient. Russell only offered bare conclusory statements regarding this claim and
his affidavit was entirely devoid of any information pertaining to the doctor appointments he
referenced. 1 His affidavit did not explain the purpose of the doctor appointments, the dates of
those appointments, if he attended the appointments, why he made the appointments, the name of
the doctor, or what the doctor would have treated Russell for. He presented no evidence from
any doctor. The only assertion he presented was that the “timing of doctor’s appointments”
showed his “commitment to seek help toward rehabilitation.”
       Even assuming counsel’s performance was deficient for failing to present evidence of
Russell’s doctor appointments, Russell has failed to present any evidence to establish prejudice.
Russell claims the evidence of his doctor appointments would have shown proof of his potential
to be rehabilitated, but he offers no evidence supporting this claim. Moreover, as the district
court noted, after the evidentiary hearing relating to the two issues that survived summary
dismissal, the sentencing court found that “Russell could probably be rehabilitated and Russell
would follow the rules if placed on probation.” Yet, the sentencing court declined to place
Russell on probation and sentenced him to prison because of the “seriousness of the offense and
the harm done to the victim,” not because he was not amenable to treatment.               Russell’s
contentions relative to his doctor appointments are bare as to how the information may have
resulted in a different sentence, particularly in light of the sentencing court’s concerns as to the



1
        In response to the district court’s notice of intent to dismiss his petition on this basis,
Russell filed a memorandum in which he clarified the two issues remaining for hearing, but
declined to supply additional evidence pertaining to the remaining issues. Specifically, Russell
stated “[t]he Petitioner does not submit additional admissible evidence to support the other issues
that the Court has noticed for dismissal, but hereby reserves his right to appeal those issues
should the Defendant choose after a final order is entered in this matter.”

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seriousness of his offense. Therefore, even if his trial counsel’s performance was deficient,
Russell has failed to demonstrate that the outcome of the sentencing hearing would have been
different had the district court been informed of Russell’s scheduled doctor appointments.
                                                III.
                                         CONCLUSION
       Russell failed to demonstrate that the district court erred in summarily dismissing his
petition for post-conviction relief on the issue of whether trial counsel was ineffective for failing
to adequately present mitigation evidence at his sentencing hearing. Therefore, the district
court’s order dismissing Russell’s petition for post-conviction relief is affirmed.
       Judge LANSING and Judge GUTIERREZ CONCUR.




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