                 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 40924

MARC EDWARD KLEIN,                                )     2014 Opinion No. 50
                                                  )
          Petitioner-Appellant,                   )     Filed: July 2, 2014
                                                  )
v.                                                )     Stephen W. Kenyon, Clerk
                                                  )
STATE OF IDAHO,                                   )
                                                  )
          Respondent.                             )
                                                  )

          Appeal from the District Court of the Seventh Judicial District, State of Idaho,
          Custer County. Hon. Joel E. Tingey, District Judge.

          Summary dismissal of two claims for post-conviction relief, affirmed; judgment
          denying remaining post-conviction claim, affirmed.

          Nevin, Benjamin, McKay & Bartlett, Boise, for appellant; Jeffrey Brownson,
          argued.

          Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
          General, Boise, for respondent. Mark W. Olson argued.
                    ________________________________________________
WALTERS, Judge Pro Tem
          Marc Edward Klein appeals from the summary dismissal of two of his claims for post-
conviction relief and the judgment denying his other claim following an evidentiary hearing. We
affirm.
                                                 I.
                        FACTUAL AND PROCEDURAL BACKGROUND
          In November 2011, Klein’s vehicle struck another vehicle nearly head on. The crash
resulted in the death of the other driver. Klein had a blood alcohol concentration of .279. At the
crash scene, Klein made incriminating statements such as he “really screwed up this time.”1
There were no witnesses to the accident. Klein later claimed to have no memory of the accident.

1
        Klein also asked a motorist who stopped to help “if he was the person he’d hit.” Later, he
told a dispatcher that “he had killed someone.”


                                                 1
The State subsequently charged Klein with vehicular manslaughter and driving under the
influence (excessive). An Idaho State Police trooper prepared an accident report that concluded
Klein had crossed the centerline resulting in the collision.         The trooper testified at the
preliminary hearing and the report was later reviewed and approved by Idaho State Police MCpl.
Fred Rice. Thereafter, MCpl. Rice prepared his own accident report.
        In exchange for Klein’s guilty plea to vehicular manslaughter, the State agreed to
recommend six years with three years determinate and dismiss the DUI charge. Klein entered an
Alford plea, 2 and the judgment of conviction was entered on April 22, 2011. Klein did not
appeal. Before Klein’s judgment became final, the Idaho Supreme Court filed its opinion in
State v. Ellington, 151 Idaho 53, 253 P.3d 727 (2011). Relevant to this case, the Court made
numerous statements regarding MCpl. Rice’s “false testimony” during Ellington’s trial. Id. at
56, 253 P.3d 730.     At Ellington’s trial, an accident reconstruction expert testified on behalf of
the defense that an average perception-reaction time is 1.5 seconds and that debris can be used to
determine the point of impact.       MCpl. Rice testified in rebuttal that there is no average
perception-reaction time in the world. He further testified that using debris to place the impact
location at the scene is unreliable because debris can be kicked around and due to the spray of
debris after a collision. After Ellington’s trial, it came to light that MCpl. Rice’s testimony had
contradicted testimony he had given in a previous trial. At the eventual motion for a new trial
hearing, Ellington submitted MCpl. Rice’s previous testimony and training materials that also
contradicted his testimony. The testimony and training materials supported the defense expert’s
testimony regarding average perception-reaction time. MCpl. Rice’s previous testimony was
also that glass debris definitely coincided with the impact point. The Supreme Court concluded
that the evidence establishing MCpl. Rice’s false testimony required that Ellington receive a new
trial. Id. at 76, 253 P.3d at 750.
        On June 27, 2011, Klein filed a motion to withdraw his guilty plea based on the Ellington
decision. The court denied the motion for lack of jurisdiction. Klein then filed a petition for
post-conviction relief alleging that the State failed to disclose impeachment information
regarding MCpl. Rice, and that his counsel was ineffective for failing to file the motion to
withdraw his guilty plea before the court lost jurisdiction. Klein also alleged that his trial

2
        See North Carolina v. Alford, 400 U.S. 25 (1970).


                                                 2
counsel was ineffective for failing to obtain an independent accident reconstruction expert and
failing to thoroughly investigate the case. The district court summarily dismissed the first two
claims, but concluded that an evidentiary hearing was required on the claim that counsel’s
investigation of the case was deficient.
       After the evidentiary hearing, the district court made the following findings of fact. Klein
was represented in the criminal proceedings by Justin Oleson. After the initial trooper testified at
the preliminary hearing, Oleson had concerns about the accuracy of the report. Oleson and Klein
discussed the option of retaining an accident reconstruction expert to rebut the conclusions of the
initial report. Klein gave Oleson authority to seek out an accident reconstruction expert. Oleson
then learned that MCpl. Rice had prepared an accident reconstruction report. During discovery,
Oleson received the report, photos of the accident scene, and photos of the vehicles. MCpl.
Rice’s report also concluded that the accident was caused by Klein crossing into the other lane.
       Oleson contacted an accident reconstruction expert and talked to the expert about the
circumstances of Klein’s accident and the opposing expert’s testimony. Oleson did not recall if
he went over MCpl. Rice’s findings, but they did discuss MCpl. Rice’s credentials and
experience.   The expert advised Oleson that MCpl. Rice had significant qualifications and
experience and that it would be very difficult to rebut his conclusions.          Oleson also had
experience with MCpl. Rice on a prior unrelated matter that led Oleson to believe that MCpl.
Rice made a very good witness when testifying before a jury. At one point, Oleson had a
telephone conversation with MCpl. Rice. They discussed the other trooper’s report as well as
MCpl. Rice’s opinions regarding the accident. In Oleson’s mind, MCpl. Rice was able to
provide sufficient explanations as to the conclusions that had raised concerns in the other
trooper’s report.
       Oleson then talked to Klein about his telephone calls with the accident reconstruction
expert and MCpl. Rice. Oleson told Klein that the accident reconstruction expert believed it
would be very difficult to refute MCpl. Rice’s conclusions. He also told Klein about his own
prior experience observing MCpl. Rice as a witness. However, Oleson told Klein that based on
his experience with expert witnesses, they could probably find an expert who could refute MCpl.




                                                 3
Rice and the initial trooper’s conclusions, if Klein was willing to pay for it. 3 Oleson and Klein
then discussed whether it made financial sense to hire an accident reconstruction expert under the
circumstances. They discussed the likelihood of prevailing at trial, the weaknesses of any
potential defense due to Klein’s blood alcohol concentration, Klein’s lack of memory, and the
two expert witnesses who would testify that Klein crossed the centerline while failing to yield.
Klein indicated that he was tired of being in the Custer County Jail and felt that he had no
defenses. Klein ultimately determined not to hire a reconstruction expert and decided to accept
the State’s plea agreement. The decision was later confirmed in a letter from Oleson to Klein.
       The district court concluded that Oleson provided effective assistance of counsel in
relaying the information he had gathered about potential experts and the strength of the State’s
case. The court also determined that Klein failed to establish that he would not have pled guilty
because he chose to accept a favorable plea agreement and pled guilty knowing an expert could
have been obtained that would contradict the State’s experts. Accordingly, the district court
denied Klein’s petition for post-conviction relief. Klein timely appeals.
                                                II.
                                           ANALYSIS
A.     Summary Dismissal
       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



3
       This indeed was the case. At the evidentiary hearing, Klein introduced an accident
reconstruction report that concluded that the accident resulted due to the other vehicle’s speed,
and that the collision occurred near the centerline.


                                                4
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
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


                                                  5
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.
       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).
       1.      Impeachment evidence
       Klein argues his due process rights were violated when the State failed to disclose
impeachment evidence before he pled guilty. The district court summarily dismissed this claim,
concluding the State did not have a duty to disclose the impeachment evidence. 4 Due process
requires all material exculpatory evidence known to the State or in its possession be disclosed to



4
        The court also concluded that any impeachment evidence regarding MCpl. Rice had
become too attenuated to affect Klein’s decision to plead guilty. Because we conclude that the
State did not have a duty to disclose the information under Brady, we do not address this
alternative basis.

                                                6
the defendant. Brady v. Maryland, 373 U.S. 83, 87 (1963); Dunlap v. State, 141 Idaho 50, 64,
106 P.3d 376, 390 (2004). This duty also extends to providing material impeachment evidence
before trial. Giglio v. United States, 405 U.S. 150, 153-54 (1972); Dunlap, 141 Idaho at 64, 106
P.3d at 390. “There are three essential components of a true Brady violation: the evidence at
issue must be favorable to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.” Dunlap, 141 Idaho at 64, 106 P.3d at 390
(quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).        However, the United States
Constitution does not require the State to disclose material impeachment information prior to
entering a plea agreement with the defendant. United States v. Ruiz, 536 U.S. 622, 633 (2002).
On the other hand, where the State fails to disclose exculpatory evidence, “a guilty plea entered
in ignorance of those facts may not be knowing and intelligent though it is otherwise voluntary.”
State v. Gardner, 126 Idaho 428, 434, 885 P.2d 1144, 1150 (Ct. App. 1994).
       In Ruiz, the United States Supreme Court examined whether due process required the
disclosure of impeachment information before a plea agreement. In determining the State does
not have a duty to disclose, the Court reasoned that “impeachment information is special in
relation to the fairness of a trial, not in respect to whether a plea is voluntary (‘knowing,’
‘intelligent,’ and ‘sufficient[ly] aware’).” Ruiz, 536 U.S. at 629. The Court explained: “the law
ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully
understands the nature of the right and how it would likely apply in general in the
circumstances–even though the defendant may not know the specific detailed consequences of
invoking it.” Id.
       The Court also noted that the constitution does not require complete awareness of the
relevant circumstances:
       [T]his Court has found that the Constitution, in respect to a defendant’s awareness
       of relevant circumstances, does not require complete knowledge of the relevant
       circumstances, but permits a court to accept a guilty plea, with its accompanying
       waiver of various constitutional rights, despite various forms of misapprehension
       under which a defendant might labor. See Brady v. United States, [397 U.S. 742,
       757 (1970)] (defendant “misapprehended the quality of the State’s case”); ibid.
       (defendant misapprehended “the likely penalties”); ibid. (defendant failed to
       “anticipate” a change in the law regarding relevant “punishments”); McMann v.
       Richardson, 397 U.S. 759, 770, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970) (counsel
       “misjudged the admissibility” of a “confession”); United States v. Broce, 488 U.S.


                                               7
       563, 573, 109 S. Ct. 757, 102 L. Ed. 2d 927 (1989) (counsel failed to point out a
       potential defense); Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 36 L.
       Ed. 2d 235 (1973) (counsel failed to find a potential constitutional infirmity in
       grand jury proceedings). It is difficult to distinguish, in terms of importance, (1) a
       defendant’s ignorance of grounds for impeachment of potential witnesses at a
       possible future trial from (2) the varying forms of ignorance at issue in these
       cases.

Ruiz, 536 U.S. at 630-31.
       Finally, based on due process considerations, 5 the Court surmised that disclosure is not
required because of the relatively minimal constitutional benefit of requiring disclosure
compared to the radical change that would result in the criminal justice system if it was required.
Id. at 632. The constitutional safeguards in accepting a guilty plea and the State’s agreement to
provide all exculpatory evidence in the plea agreement provide protection against an innocent
person pleading guilty. Whereas, requiring the State to anticipate all potential impeachment
information would create a burden on the criminal justice system that heavily relies upon plea
bargaining.   From all this, the Court concluded “that the Constitution does not require the
Government to disclose material impeachment evidence prior to entering a plea agreement with a
criminal defendant.” Id. at 633.
       Klein does not contend that MCpl. Rice’s testimony was anything other than
impeachment evidence. Instead, Klein argues that Ruiz should not apply because he entered an
Alford plea and could not remember the night of the collision. He explains that an innocent
person may plead guilty based on the failure to recall the events of the crime. We cannot accept
this distinction. First, a defendant’s claim of memory loss may or may not be valid. Requiring
disclosure in these cases would essentially force the State to go through the process of examining
all potential impeachment evidence that may exist before allowing a defendant to plead guilty
whenever a defendant claims innocence or ignorance. This is exactly the burden the Supreme
Court sought to avoid in Ruiz.      Second, under Gardner, the State has a duty to disclose
exculpatory evidence before a guilty plea, which helps safeguard against an innocent person
pleading guilty. Finally, the guilty plea must also comply with due process and the Idaho


5
       “[D]ue process considerations include not only (1) the nature of the private interest at
stake, but also (2) the value of the additional safeguard, and (3) the adverse impact of the
requirement upon the Government’s interests.” United States v. Ruiz, 536 U.S. 622, 631 (2002).


                                                 8
Criminal Rules, which ensures that defendants’ pleas are accepted within certain standards. See
Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008); see also I.C.R. 11.
       Klein also attempts to distinguish Ruiz by noting the United States Supreme Court has
recently extended the right to counsel during plea negotiations, Missouri v. Frye, __ U.S. __, __,
132 S. Ct. 1399, 1407-08 (2012), and in deciding whether to accept or reject a plea offer, Lafler
v. Cooper, __ U.S. __, __, 132 S. Ct. 1376, 1387 (2012). Klein argues this right to counsel is
meaningless unless the attorney had access to all of the State’s impeachment and exculpatory
evidence. We disagree. If anything, the additional protection of the right to counsel further
obviates the need to require disclosure.
       Because MCpl. Rice’s past testimony was impeachment evidence, the State did not have
a duty to disclose it before Klein pled guilty. Therefore, the court did not err in summarily
dismissing Klein’s due process claim.
       2.      Failure to timely file motion
       Klein argues that Oleson’s conduct fell below the reasonable standard of representation
by failing to stay apprised of the relevant law. The district court summarily dismissed this claim,
concluding that Oleson’s failure to know of a recently filed case did not fall below the
professional standard of care. 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


                                                 9
shortcomings capable of objective evaluation. Gonzales v. State, 151 Idaho 168, 172, 254 P.3d
69, 73 (Ct. App. 2011).
       Oleson filed a motion to withdraw Klein’s guilty plea on June 27, 2011. However,
Klein’s judgment had already become final on June 3, 2011. The basis of the motion to
withdraw was the Idaho Supreme Court’s characterization of MCpl. Rice’s credibility in
Ellington. This decision was filed on May 27, 2011--seven days before Klein’s judgment
became final. From this, Klein alleges that Oleson failed to stay apprised of the relevant law of
his case, which resulted in the untimely filing of the motion to withdraw.
       When Klein’s case became final on June 3, 2011, Ellington was not final. The remittitur
was not issued until June 17, 2011. Until the Court’s opinion became final, it was subject to
withdrawal or modification. We cannot say that counsel is ineffective for failing to be aware of a
pending case that is relevant only as to the factual circumstances of that case. 6 See State v.
Brown, 245 P.3d 776, 778 (Wash. App. 2011) (“[T]rial counsel’s failure to advise his client of
pending cases during the plea bargaining process cannot constitute ineffective assistance.”). This
is especially true considering when Ellington was filed Klein had already been sentenced, no
direct appeal was filed, and no pending matter existed for review. Accordingly, the district
court’s summary dismissal of this claim was proper.
B.     Denial of Claim After Evidentiary Hearing
       Klein argued that Oleson was ineffective for failing to independently investigate the
accident or meaningfully consult with an independent accident reconstruction expert. After an
evidentiary hearing, the district court denied relief under this claim finding that Oleson’s conduct
did not fall below an objective standard of reasonableness and that Klein could not establish
prejudice. 7 In order to prevail in a post-conviction proceeding, the petitioner must prove the
allegations by a preponderance of the evidence. Idaho Code § 19-4907; Stuart v. State, 118
Idaho 865, 869, 801 P.2d 1216, 1220 (1990); Baxter v. State, 149 Idaho 859, 861, 243 P.3d 675,



6
        We note that Klein did not allege that Oleson actually knew of the circumstances in
Ellington, only that Oleson should have known of the case.
7
       Though we need not address the court’s conclusion that Klein could not establish
prejudice, we note Klein had a difficult task of establishing that he would not have pled guilty
considering his extreme intoxication at the time of the collision, his incriminating statements,
and two troopers concluding he crossed the centerline.

                                                10
677 (Ct. App. 2010).       When reviewing a decision denying post-conviction relief after an
evidentiary hearing, an appellate court will not disturb the lower court’s factual findings unless
they are clearly erroneous. Idaho Rule of Civil Procedure 52(a); Dunlap, 141 Idaho at 56, 106
P.3d at 382; Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The
credibility of the witnesses, the weight to be given to their testimony, and the inferences to be
drawn from the evidence, are all matters solely within the province of the district court. Dunlap,
141 Idaho at 56, 106 P.3d at 382; Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App.
1988). We exercise free review of the district court’s application of the relevant law to the facts.
Baxter, 149 Idaho at 862, 243 P.3d at 678.
        Determining whether an attorney’s pretrial preparation falls below a level of reasonable
performance constitutes a question of law, but is essentially premised upon the circumstances
surrounding the attorney’s investigation. Thomas v. State, 145 Idaho 765, 769, 185 P.3d 921,
925 (Ct. App. 2008). A petitioner must establish that the inadequacies complained of would
have made a difference in the outcome of trial. Id. It is not sufficient merely to allege that
counsel may have discovered a weakness in the State’s case. Id. We will not second-guess trial
counsel in the particularities of trial preparation. Id.
        Klein’s characterization of Oleson’s conduct as failing to investigate or consult with an
independent accident reconstruction expert is belied by the district court’s findings. The factual
findings, which have not been challenged, establish that after the first trooper testified at the
preliminary hearing, Oleson was concerned about the reliability of the report. Oleson and Klein
then agreed that Oleson should seek out an accident reconstruction expert. Thereafter, MCpl.
Rice’s report became available that addressed the concerns of the earlier report.             More
importantly, MCpl. Rice’s report agreed with the earlier report that the collision was a result of
Klein crossing the centerline. Oleson then contacted an independent accident reconstruction
expert who advised it would be difficult to contradict MCpl. Rice’s report.            Oleson also
contacted MCpl. Rice who further explained his report; Oleson found his explanation credible.
At this point, Oleson talked to Klein about whether to hire an accident reconstruction expert
based on the reports, what the expert had indicated about MCpl. Rice’s qualifications, and the
circumstances of the case. Oleson indicated that they could likely find an expert who would
contradict MCpl. Rice. The pair discussed the strength of the State’s case considering the two
reports that concluded Klein had crossed the centerline, Klein’s extreme intoxication, the


                                                  11
incriminating statements Klein made immediately after the accident, and the State’s offer of a
plea agreement. Klein then made the conscious decision not to obtain an accident reconstruction
expert. Oleson’s conduct obtaining preliminary information regarding the reports and potential
experts was not unreasonable. Oleson’s decision not to hire an expert, according to Klein’s
instructions, was certainly reasonable.
       Klein argues that Oleson should have discussed the case more thoroughly with an
independent expert before talking to Klein about his options. Klein indicates Oleson should have
obtained an expert to gather vast amounts of data, evaluate and analyze the data, and then
determine, based upon accepted laws of physics and engineering, how the accident likely
occurred. However, Oleson’s decision to first discuss the circumstances with an independent
expert and determine the cost of retaining the expert’s services, and then ask Klein if he desired
to pay the expert to undertake these tasks was in accord with Klein’s instructions to first seek out
an expert. Oleson then told Klein that he could obtain an expert that would contradict MCpl.
Rice, but Klein chose not to pay for one.
       Klein also argues that Oleson should have conducted his own investigation of the crash
scene and taken measurements, or hired someone to investigate. Oleson is not an expert in
accident reconstruction and, as the district court concluded, it is immaterial whether Oleson
would have gone to the scene to take measurements and photographs. Oleson relying on the
accident reports and photographs taken by the troopers to familiarize himself with the case is not
unreasonable. As to hiring someone, Oleson discussed this option with Klein, but Klein decided
not to hire an expert to conduct the necessary investigation. Because Oleson’s conduct did not
fall below the professional standard of representation, the district court properly denied Klein’s
petition for post-conviction relief.
                                                III.
                                          CONCLUSION
       Klein has failed to show his due process rights were violated and failed to establish that
his attorney provided ineffective assistance of counsel. Therefore, the district court’s summary
dismissal of two of Klein’s claims and the judgment denying his remaining post-conviction
claim are affirmed.
       Chief Judge GUTIERREZ and Judge MELANSON CONCUR.




                                                12
