               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 43551

JIMMY D. LEYTHAM,                               ) 2016 Opinion No. 54
                                                )
       Petitioner-Appellant,                    ) Filed: August 10, 2016
                                                )
v.                                              ) Stephen W. Kenyon, Clerk
                                                )
STATE OF IDAHO,                                 )
                                                )
       Respondent.                              )
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Cheri C. Copsey, District Judge.

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

       Eric D. Fredericksen, Interim State Appellate Public Defender; Justin M. Curtis,
       Deputy Appellate Public Defender, Boise, for appellant.

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

MELANSON, Chief Judge
       Jimmy D. Leytham appeals from the district court’s judgment summarily dismissing
Leytham’s petition for post-conviction relief. Specifically, Leytham alleges the district court
abused its discretion in denying his motion for discovery seeking to depose trial counsel and
erred in summarily dismissing the petition. For the reasons set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       In the underlying case, Leytham pled guilty to forgery. I.C. § 18-3601. Leytham filed a
petition for post-conviction relief, making a number of claims of ineffective assistance of trial
counsel. Leytham alleged that he placed more than twenty calls to his attorney, which were
never returned; he asked his attorney for a binding plea agreement but was told that the judge



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would not allow it; he asked his counsel to recuse the district judge but his counsel refused,
explaining that he and the judge were good friends; counsel did not contact Leytham before a
court appearance and that counsel’s law partner, who was not familiar with Leytham’s case,
appeared at that hearing; counsel told Leytham that if he plead guilty he would be placed on
probation; and that counsel told Leytham to say at the plea hearing that no promises were made
regarding his sentence.1
        Leytham filed a motion for discovery seeking to depose his trial counsel regarding his
claims. The district court explained that it believed Leytham was “engaged in nothing but a
fishing expedition.” After explaining that Leytham’s claims were ineffective assistance of
counsel for failing to investigate and for failing to effectively communicate, the district court
held:
                These are routine matters. Other than cursory claims that he wants to
        inquire regarding investigation of his issues, the Court finds Leytham made no
        showing why the discovery he requests is necessary to his application. Leytham’s
        claims are abstract. Raudebaugh v. State, 135 Idaho 602, 605, 21 P.3d 924, 927
        (2001).
                Therefore, in an exercise of discretion, the Court denies [Leytham’s]
        motion.
Upon motion from the state, the district court summarily dismissed Leytham’s petition, holding
that Leytham failed to present sufficient evidence to raise a genuine issue of material fact
regarding ineffective assistance of trial counsel. Leytham appeals.
                                               II.
                                          ANALYSIS
A.      Denial of Discovery
        Leytham alleges the district court abused its discretion in denying Leytham’s request to
depose his trial counsel. When a petitioner believes discovery is necessary for acquisition of
evidence to support a claim for post-conviction relief, the petitioner must obtain authorization
from the district court to conduct discovery. I.C.R. 57(b); Raudebaugh v. State, 135 Idaho 602,
605, 21 P.3d 924, 927 (2001). Discovery in a post-conviction action is not required unless
necessary to protect a petitioner’s substantial rights. Murphy v. State, 143 Idaho 139, 148, 139

1
       Leytham was sentenced to a unified term of ten years, with a minimum period of
confinement of five years.

                                                2
P.3d 741, 750 (Ct. App. 2006); Griffith v. State, 121 Idaho 371, 375, 825 P.2d 94, 98 (Ct. App.
1992).     Discovery may be denied where the petitioner’s claims are nothing more than
speculation, unsupported by any evidence. Raudebaugh, 135 Idaho at 605, 21 P.3d at 927.
Indeed, discovery may not be used to engage in “fishing expeditions,” as post-conviction actions
provide a forum for known grievances, not an opportunity to search for them. Murphy, 143
Idaho at 148, 139 P.3d at 750. Whether to authorize discovery is a matter directed to the
discretion of the court. Raudebaugh, 135 Idaho at 605, 21 P.3d at 927.
         The threshold issue here is whether discovery was necessary to protect one of Leytham’s
substantial rights. It appears that Leytham alleges discovery was necessary to protect his right to
assistance of counsel. While the right to assistance of counsel is a substantial right, discovery
was not necessary to protect that right in this case. All of Leytham’s allegations of ineffective
assistance of counsel were based upon his interactions (or lack thereof) with counsel. Because
Leytham had personal knowledge of his interactions with counsel, his affidavit was admissible
evidence for purposes of raising a genuine issue of material fact regarding ineffective assistance
of trial counsel. Leytham filed an affidavit with his petition for post-conviction relief, which
provided the factual basis for his claims. Leytham’s request to depose counsel appears to have
been an effort to corroborate the evidence provided in Leytham’s affidavit, rather than acquire
evidence that was otherwise unavailable to him. Because discovery was not necessary to protect
one of Leytham’s substantial rights, the district court did not err in denying Leytham’s motion
for discovery.
B.       Summary Dismissal
         Leytham alleges the district court erred in summarily dismissing his petition for
post-conviction relief. Specifically, Leytham alleges that he raised a genuine issue of material
fact as to whether his trial counsel was ineffective for failing to properly advise him regarding
the potential sentence resulting from his guilty plea.
         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


                                                  3
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
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


                                                 4
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).
       A claim of ineffective assistance of counsel may properly be brought under the
post-conviction procedure act. Murray, 121 Idaho at 924-25, 828 P.2d at 1329-30. 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
attorney’s representation fell below an objective standard of reasonableness. Aragon v. State,
114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). 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


                                                  5
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).
       Leytham alleges that his counsel informed Leytham that, if he pled guilty, he would be
sentenced to probation rather than incarceration. In addition, Leytham alleges that he was not
informed that he was agreeing to pay over $55,000 in restitution. Leytham’s allegations are
disproven by the record.
       Assuming Leytham’s counsel advised him that he would be sentenced to probation rather
than incarceration, Leytham was made aware by the district court that no promises were
enforceable. At the plea hearing, the following exchange took place between the district court
and Leytham:
       Q.      You understand the only person who can make any promises to you as to
               what’s going to happen at sentencing is me?
       A.      Yes, ma’am.
       Q.      Have I made you any promises?
       A.      No, ma’am.
The district court continued questioning Leytham, then again asked about whether Leytham had
been made any promises. The following exchange took place:
       Q.      Are there any promises that have been made to you that influenced your
               decision to plead guilty--
       A.      No, ma’am.
       Q.      -- besides the plea agreement?
       A.      No.
       Even if Leytham’s trial counsel misadvised Leytham that his plea of guilty would result
in probation, that error was cured by the district court’s explanation that no agreements were
enforceable. Leytham acknowledged that he understood the district court’s explanation.
       Similarly, Leytham represented to the district court that he understood that he was
agreeing to pay restitution as a result of his guilty plea. At the change of plea hearing, the
following exchange took place:
       Q.      Now, you understand that you’re agreeing to pay restitution in all of these
               cases including the dismissed cases. Do you understand that?
       A.      Yes, ma’am.
               ....
       Q.      But you do understand that you have to pay restitution to the victims?
       A.      Yes, ma’am.
       Q.      You understand that?


                                                6
       A.      Yes.
       At sentencing, the district court discussed restitution with the attorneys for both parties,
as follows:
       [STATE]:    As was contemplated in the plea agreement, the restitution--excuse
            me--proposed restitution order in the 5269 case encompasses losses in that
            case to [the victim] of $202.75. In the 3478 case the restitution to the
            individually injured victim in that case has actually already been addressed
            through the bank--or I should say credit union. And the proposed order
            you’ve been provided for $55,331.92 is the loss suffered by [the credit
            union] . . . that was negotiated with specificity prior to the entry of plea in
            September.
       [COURT]:    Is that--is the amount of restitution, is that something he’s going to
            be agreeing to?
       [DEFENSE COUNSEL]:           It is, Your Honor.
The district court later asked Leytham, “Do you wish to make a statement or present any
information regarding [your] sentence today?”          Leytham replied “No, ma’am.”       Because
Leytham’s allegations that he was misinformed by his counsel are clearly disproven by the
record, the district court did not err in holding that Leytham failed to raise a genuine issue of
material fact regarding ineffective assistance of his trial counsel.
       Leytham also alleges that, if he was advised of his plea, he was unable to understand the
proceedings as a result of medication he was taking at the time of sentencing. The following
exchange took place at the plea hearing between the district court and Leytham:
       Q.      Now, you’ve indicated that you’ve been taking a pill for depression as
               well as some other medications and some Hydrocodone for your neck
               pain; is that correct?
       A.      Yes, Your Honor.
       Q.      Are you having any difficulty understanding these proceedings?
       A.      No, ma’am.
       Q.      And you have been taking all of these medications for some time, about
               45 days you said?
       A.      Just take depression for 45. The rest of them I’ve been taking since 2005.
       Q.      Okay. Normally by this time in any of these medications any effects have
               stabilized. But I just want to make sure are you having any sleepiness or
               any difficulty understanding what we’re talking about here today?
       A.      No, Your Honor.
       Q.      And do you feel that these medications prevented you from knowingly and
               voluntarily deciding to plead guilty?
       A.      No, Your Honor.
       Q.      Did they make you more susceptible to [defense counsel’s] suggestions?


                                                  7
       A.   Yes, Your Honor.
       Q.   They did? So your--[defense counsel’s] suggestion--these medications
            made you more susceptible to those?
       A.   No, ma’am. I’m sorry. I misunderstood you.
       Q.   You misunderstood my question?
       A.   Yes, ma’am.
       Q.   Okay. And so these are your decisions, not [defense counsel’s] decisions?
       A.   Yes, ma’am.
       Q.   And, again, just for the record, [Leytham’s] answers seem appropriate to
            me, his affect is appropriate. We’ve got great contact. He’s not slurring
            his words. He doesn’t appear sleepy. His answers do not seem
            inappropriate to me. Is there anyone here who would disagree with that?
       [STATE]:    No, Your Honor.
       [COURT]:    [Defense counsel]?
       [DEFENSE COUNSEL]:          No, Your Honor. I agree with what he said.
       [COURT]:    Mr. Leytham?
       [LEYTHAM]: I agree with what you said,
       [COURT]:    Great.
       While Leytham claims he was unable to understand the plea proceedings due to
medications he was taking, his claim is disproven by the record. The district court carefully
examined Leytham to determine whether he was capable of understanding the guilty plea.        The
district court determined that Leytham was capable of understanding the guilty plea and the state,
defense counsel, and Leytham all agreed with the district court’s assessment. Accordingly,
Leytham has not shown that he was not capable of understanding the plea agreement.
                                               III.
                                        CONCLUSION
       Leytham has not shown that the district court erred in denying his motion for discovery
seeking to depose his trial counsel. Furthermore, Leytham has not shown that the district court
erred in summarily dismissing his claim of ineffective assistance of counsel or that he did not
understand the plea agreement. Therefore, the district court’s judgment summarily dismissing
Leytham’s petition for post-conviction relief is affirmed. No costs or attorney fees are awarded
on appeal.
       Judge GUTIERREZ and Judge HUSKEY, CONCUR.




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