               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 43659

RICARDO OZUNA JR.,                                )    2016 Unpublished Opinion No. 689
                                                  )
       Petitioner-Appellant,                      )    Filed: September 16, 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STATE OF IDAHO,                                   )    THIS IS AN UNPUBLISHED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 Third Judicial District, State of Idaho,
       Canyon County. Hon. Christopher S. Nye, District Judge. Hon. Molly J. Huskey,
       District Judge.

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

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

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GRATTON, Judge
       Ricardo Ozuna, Jr., appeals from the district court’s judgment summarily dismissing his
petition for post-conviction relief. We affirm.
                                                  I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Ozuna was convicted of lewd conduct with a minor under sixteen and of having been
previously convicted of a sexual offense. Idaho Code §§ 18-1508, 19-2520G(2). The district
court sentenced Ozuna to a unified term of life with twenty years determinate. Ozuna filed an
appeal asserting that the district court erred by excluding proffered evidence of the victim’s
sexually transmitted disease and that his sentence was excessive. This Court affirmed the
conviction and sentence.     State v. Ozuna, 155 Idaho 697, 316 P.3d 109 (Ct. App. 2013).
Thereafter, Ozuna filed a pro se petition for post-conviction relief alleging ineffective assistance

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counsel. Among other claims, Ozuna asserted that trial counsel was ineffective for advising him
not to take a plea offer of fifteen years maximum. The State filed an answer and the district
court appointed counsel. The district court subsequently gave notice of its intent to dismiss the
petition. Ozuna failed to respond and the district court summarily dismissed the petition. Ozuna
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
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

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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
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).
       Ozuna argues that post-conviction relief should be granted because he did raise a genuine
issue of material fact as to whether he was denied effective assistance of counsel when he



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rejected a plea offer on the basis of deficient advice. Ozuna contends that trial counsel advised
him not to take a plea offer of fifteen years maximum because counsel could win the case at trial.
       The Sixth Amendment right to effective assistance of counsel extends to the plea
bargaining process. Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399, 1405 (2012); Hoffman v.
State, 153 Idaho 898, 907, 277 P.3d 1050, 1059 (Ct. App. 2012). 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.
       Ozuna argues on appeal that trial counsel’s advice was constitutionally deficient and that
Ozuna was prejudiced insofar as he did not take the plea, losing his opportunity to do so, which
led to a trial and conviction and the imposition of a longer sentence. The State argues that Ozuna
did not establish a prima facie showing of prejudice to satisfy the claim of ineffective assistance
of counsel. Likewise, in summarily dismissing Ozuna’s petition, the district court ruled based
solely on prejudice. Accordingly, we constrain our review to the issue of whether Ozuna has
satisfied the prejudice prong of Strickland.
       Ozuna argues that he supported his claim of ineffective assistance of counsel with regard
to the plea offer with this statement contained within his affidavit attached to the petition for
post-conviction relief: “Prejudice can be shown by the loss of the plea opportunity which le[d]
to a Trial resulting in the conviction with the imposition of a more serious sentence opposed to
that [which] was offered.” Ozuna asserts this statement makes clear, but for counsel’s deficient
advice, he would have taken the plea offer, and that “the district court’s conclusion to the
contrary is simply incorrect.” We note Ozuna does not allege what crime he would have been



                                                4
required to plead guilty to under the terms of the plea offer. Further, Ozuna acknowledges he
was not aware of what the determinate portion of his sentence would be under the plea offer.
       The Supreme Court of the United States has addressed ineffective assistance of counsel
claims within the context of plea negotiations. See Lafler v. Cooper, ___ U.S. ___, 132 S. Ct.
1376 (2012). In Lafler, defense counsel erroneously advised the defendant that the prosecution
could not prove a required element of the charged offense. Id. at ___, 132 S. Ct. at 1383. The
defendant rejected two plea offers and proceeded to trial based on his counsel’s advice. He was
subsequently convicted of all counts and received a less favorable sentence than he would have
under the plea offers.    On appeal, the parties conceded that defense counsel’s advice was
deficient. Id. at ___, 132 S. Ct. at 1384. Thus, the Court focused on the prejudice prong of the
Strickland analysis and explained that to establish prejudice the petitioner must show a
reasonable probability, but for the attorney’s deficient performance, the outcome of the plea
process would have been different with competent advice. Lafler, ___ U.S. at ___, 132 S. Ct. at
1384. Specifically, where alleged deficient advice led to the plea offer’s rejection, the petitioner
is required to show, but for the ineffective advice of counsel, there is a reasonable probability
that: (1) the plea offer would have been presented to the court (i.e., that the defendant would
have accepted the plea and the prosecution would not have withdrawn it in light of intervening
circumstances); (2) the court would have accepted its terms; and (3) the conviction or sentence,
or both, under the offer’s terms would have been less severe than under the judgment and
sentence that in fact were imposed. Id. at ___, 132 S. Ct. at 1385.
       Ozuna fails to allege as to Lafler’s initial requirement, that there is a reasonable
probability he would have accepted the earlier plea offer had he been afforded effective
assistance of counsel. Ozuna’s pleading does not aver, but for trial counsel’s advice, he would
have submitted the plea agreement for acceptance to the district court. He does not allege that
the prosecution would not have withdrawn the offer.          Ozuna’s single allegation is merely
conclusory, unsupported by admissible evidence, and insufficient to satisfy the Strickland
requirement for prejudice.
       Further, Ozuna fails to allege or offer evidence that the trial court would have accepted
the plea agreement or followed any recommendation in imposing a discretionary sentencing
determination. The terms of the plea offer, including the charge to which Ozuna would have
pled guilty and the determinate term of the sentence, were not disclosed in the pleadings, nor was

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information as to whether or not the offer was binding. Accordingly, the district court did not err
in summarily dismissing Ozuna’s claims that his trial counsel was ineffective for advising him to
reject the plea offer.
                                               III.
                                        CONCLUSION
        Ozuna has failed to establish a prima facie showing that his attorney provided ineffective
assistance of counsel. Accordingly, we affirm the judgment of the district court summarily
dismissing Ozuna’s petition for post-conviction relief.
        Chief Judge MELANSON and Judge GUTIERREZ CONCUR.




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