               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 40269

JUSTIN ROBERT WICKLUND,                          )        2013 Unpublished Opinion No. 731
                                                 )
       Petitioner-Appellant,                     )        Filed: October 30, 2013
                                                 )
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STATE OF IDAHO,                                  )        THIS IS AN UNPUBLISHED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. Randy J. Stoker, District Judge.

       Order denying petition for post-conviction relief, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       Justin Robert Wicklund appeals from the district court’s order denying his petition for
post-conviction relief following an evidentiary hearing in which he alleged ineffective assistance
of counsel. For the reasons set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       Wicklund was originally charged with rape, aggravated assault, and domestic violence.
However, pursuant to a plea agreement, he pled guilty to aggravated battery (I.C. §§ 18-903(b),
18-907(a)) and aggravated assault (I.C. §§ 18-901(b), 18-905(a)). The district court imposed a
unified term of twelve years, with a minimum period of confinement of two years, for
aggravated battery and a consecutive unified term of five years, with a minimum period of
confinement of two years, for aggravated assault. Wicklund appealed and this Court affirmed his
judgment of conviction and sentences in an unpublished opinion. See State v. Wicklund, Docket



                                                1
No. 38697 (Ct. App. Dec. 29, 2011). Wicklund then filed a petition for post-conviction relief
alleging, among other things, ineffective assistance of counsel in his criminal case. After giving
notice of its intent to dismiss parts of Wicklund’s petition, the district court dismissed all but the
ineffective assistance of counsel claim. At an evidentiary hearing, Wicklund argued that his
counsel was ineffective because he had failed to more strenuously object to the inclusion in the
presentence investigation report (PSI) of an officer’s probable cause affidavit from a dismissed
2009 rape charge.     Wicklund also asserted that his counsel should have investigated and
disclosed information regarding why that charge had been dismissed by the state. The district
court rejected these arguments and denied the petition. Wicklund appeals.
                                                 II.
                                   STANDARD OF REVIEW
       To prevail in a post-conviction proceeding, the petitioner must prove the allegations by a
preponderance of the evidence. I.C. § 19-4907; Stuart v. State, 118 Idaho 865, 869, 801 P.2d
1216, 1220 (1990).       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. I.R.C.P. 52(a); 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. 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. Nellsch v.
State, 122 Idaho 426, 434, 835 P.2d 661, 669 (Ct. App. 1992).
                                                 III.
                                            ANALYSIS
       Wicklund argues that his counsel was ineffective because he failed to investigate or
present potentially mitigating information to the district court at sentencing.          A claim of
ineffective assistance of counsel may properly be brought under the post-conviction procedure
act. Murray v. State, 121 Idaho 918, 924-25, 828 P.2d 1323, 1329-30 (Ct. App. 1992). 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); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221,
224 (Ct. App. 1995). To establish a deficiency, the petitioner has the burden of showing that the


                                                  2
attorney’s representation fell below an objective standard of reasonableness. Aragon v. State,
114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). To establish prejudice, the petitioner must
show a reasonable probability that, but for the attorney’s deficient performance, the outcome of
the proceedings would have been different. Aragon, 114 Idaho at 761, 760 P.2d at 1177. 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. Howard v.
State, 126 Idaho 231, 233, 880 P.2d 261, 263 (Ct. App. 1994).
       Wicklund contends that his counsel’s performance fell below the objective standard of
reasonableness because he failed to properly investigate the circumstances of a rape charge that
was dismissed by the state in 2009. Generally, defense counsel is bound to conduct a prompt
and thorough investigation of his or her case. Richman v. State, 138 Idaho 190, 193, 59 P.3d
995, 998 (Ct. App. 2002).      A decision not to investigate or present potentially mitigating
evidence is assessed for reasonableness, giving deference to counsel’s judgment. Cook v. State,
145 Idaho 482, 495, 180 P.3d 521, 534 (Ct. App. 2008). The record indicates that Wicklund’s
counsel was aware of the dismissed 2009 rape charge, as demonstrated by his objection to the
inclusion in the PSI of an officer’s affidavit from that case. However, as noted by the district
court, Wicklund failed to present any evidence showing what investigation his counsel did or did
not do.   Indeed, Wicklund’s contentions of a failure to investigate are purely speculative.
Without that evidence, we cannot determine whether any such investigation or lack thereof was
unreasonable. As a result, Wicklund has failed to establish that his counsel’s representation was
objectively unreasonable due to a failure to properly investigate.
       Alternatively, Wicklund argues that, even if his trial counsel did properly investigate the
2009 case, counsel’s performance was still deficient because he failed to present the
circumstances surrounding the dismissal of that case as mitigating evidence at the sentencing
hearing. Wicklund bases this assertion on the testimony of the attorney who defended him in the
2009 case regarding why that case was dismissed. That attorney testified he believed the 2009
case had been dismissed because the state no longer thought the victim was credible. This belief
was based on his investigation of the case, which allegedly revealed several witnesses who
contradicted the victim’s testimony, and because the state dismissed the case shortly after he
presented it with this information. However, the attorney admitted that this opinion was based


                                                 3
purely on his own perception and not on any representations from the state or discussions with
the victim. Indeed, the district court determined that Wicklund presented no nonspeculative
evidence indicating why the 2009 rape charge was dismissed and stated:
              There are any number of reasons why the State may not have pursued the
       rape case against Wicklund. [His prior attorney]’s opinions of those reasons are
       pure conjecture insofar as the State’s actual reasons are concerned. The fact that
       the State did not pursue the rape case does not mean that the factual assertions
       made by [the victim] are not true.
The attorney further opined that a failure to present the circumstances of that case to mitigate its
damaging effect fell below a reasonable standard of conduct for counsel. Wicklund’s counsel
properly objected at the outset of the sentencing hearing to the inclusion of the dismissed 2009
rape charge in the PSI, indicating that he understood the potentially damaging effect it could
have. The district court overruled counsel’s objection, explaining in detail the case law that
allowed it to consider information from the dismissed case.          We cannot say that it was
objectively unreasonable for Wicklund’s counsel to not present the alleged circumstances behind
the dismissal given the highly speculative nature of the information. Accordingly, Wicklund has
failed to establish that his counsel’s performance was deficient.
       Even assuming arguendo that his counsel’s performance was deficient, Wicklund has also
failed to establish prejudice as a result of the alleged deficiency. Wicklund argues that he was
prejudiced because the failure to present the alleged information allowed the district court to rely
on a misconception of the details of the dismissed 2009 rape charge, resulting in a harsher
sentence in the instant case. The prejudice prong of Strickland does not require proof that
counsel’s errors definitely would have altered the outcome of the proceedings. Knutsen v. State,
144 Idaho 433, 443, 163 P.3d 222, 232 (Ct. App. 2007); see also Milburn v. State, 130 Idaho
649, 659, 946 P.2d 71, 81 (Ct. App. 1997). Rather, it requires a reasonable probability that, but
for counsel’s inadequate performance, the outcome would have been different. Aragon, 114
Idaho at 761, 760 P.2d at 1177. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Knutsen, 144 Idaho at 443, 163 P.3d at 232; Milburn, 130 Idaho at
659, 946 P.2d at 81.
       In the context of sentencing, this standard is supplemented by the proposition that a
sentencing court may properly conduct an inquiry broad in scope, largely unlimited, either as to
the kind of information it may consider or the source from which it may come. State v.
Chapman, 120 Idaho 466, 470, 816 P.2d 1023, 1027 (Ct. App. 1991). Moreover, a sentencing

                                                 4
court may, with due caution, consider the existence of a defendant’s alleged criminal activity for
which no charges have been filed or where charges have been dismissed. State v. Ott, 102 Idaho
169, 170, 627 P.2d 798, 799 (1981); State v. Wickel, 126 Idaho 578, 581, 887 P.2d 1085, 1088
(Ct. App. 1994); State v. Stewart, 122 Idaho 284, 286-87, 833 P.2d 917, 919-20 (Ct. App. 1992).
This information may be considered so long as the defendant has the opportunity to object to or
rebut the evidence of his prior criminal conduct. Stewart, 122 Idaho at 287, 833 P.2d at 920.
        Here, Wicklund was given the opportunity at the evidentiary hearing to object to or rebut
the affidavit from the 2009 case. Indeed, he acknowledges that his counsel objected to inclusion
of the affidavit and moved to strike it from the PSI, but the district court denied that request.
Moreover, the district court’s statements indicate that it understood the legal context in which it
could consider facts from a dismissed criminal charge, citing the relevant case law and stating
multiple times that it considered the affidavit with due caution.             The district court also
specifically identified the facts from the 2009 affidavit that it would and would not consider:
        It was alleged rough sex, if you will, if not rape, and in particular at page four of
        the affidavit Mr. Wicklund is quoted or indicated as advising the officer that he
        had a history of violence and was taking medications for his numerous anger
        management issues. I believe that statement in particular can be considered by
        the court in terms of the underlying factual issues in the lengthy interview of Mr.
        Wicklund referenced by the state. That’s not before me and I give no weight to
        the reference to that interview, other than to what is referenced in the affidavit
        which I haven’t stricken and I just referenced just now.
                There is also reference to Mr. Wicklund making statements that he used a
        condom and so forth, so the fact that sex did occur is certainly referenced in the
        affidavit and I give weight to that, as well as to the factors set forth that the victim
        in that circumstance . . . was taken into surgery after an incision inside her vaginal
        canal which caused significant blood loss. To me those facts, notwithstanding
        due caution, are established.
(Emphasis added.) This demonstrates that the district court limited its consideration to only
those facts from the 2009 case presented in the officer’s affidavit. Although Wicklund contends
that this information was not credible, he presents no evidence to contradict the assertions in the
affidavit. The only evidence he did present pertained to his former attorney’s opinion on why
the 2009 case was dismissed. Wicklund could not be prejudiced by his counsel’s failure to
present this speculative evidence because it did nothing to rebut the facts presented in the 2009
affidavit.
        In determining Wicklund’s sentence, the district court discussed several other factors it
considered in addition to the facts contained in the 2009 affidavit. Specifically, the district court

                                                   5
noted that Wicklund showed little remorse for his crime and minimized its severity in the PSI;
the violent nature of the crime perpetrated against a physically smaller person and through use of
a firearm; and this crime involved both violence and alcohol--issues that Wicklund had failed to
address despite repeated past problems with both.         The district court also considered the
objectives of sentencing and determined, based only partially on the facts gleaned from the 2009
affidavit, that incarceration was required to vindicate the seriousness of the crimes committed
and to adequately protect society from what it found to be a significant future risk of reoffending.
Also, Wicklund’s trial counsel raised several points at sentencing in favor of mitigation,
including Wicklund’s limited prior criminal record, compliance with the conditions of his pre-
sentencing release, and other positive circumstances in Wicklund’s life.         Thus, the record
demonstrates that the information in the 2009 affidavit was but one of several factors the district
court considered in sentencing. Wicklund has failed to establish a reasonable probability that the
outcome of sentencing would have been different had his counsel presented and the district court
considered the information he asserts. Thus, the district court did not err by denying Wicklund’s
claim.
                                                IV.
                                         CONCLUSION
         Wicklund has failed to show that his trial counsel’s performance was deficient or that any
such deficiency prejudiced him at sentencing. The district court did not err by dismissing
Wicklund’s claim. Accordingly, we affirm the district court’s order denying Wicklund’s petition
for post-conviction relief. No costs or attorney fees are awarded on appeal.
         Judge LANSING and Judge GRATTON, CONCUR.




                                                 6
