               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 41036

DOUGLAS RICHARD NAY,                              )     2014 Unpublished Opinion No. 590
                                                  )
       Petitioner-Appellant,                      )     Filed: June 25, 2014
                                                  )
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STATE OF IDAHO,                                   )     THIS IS AN UNPUBLISHED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 Fourth Judicial District, State of Idaho, Ada
       County. Hon. Deborah A. Bail, District Judge.

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

       Douglas Richard Nay, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       Douglas Richard Nay appeals from the district court’s summary dismissal of his petition
for post-conviction relief. For the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       Nay pled guilty to vehicular manslaughter, I.C. §§ 18-4006(3)(b) and 18-4006(3)(a), and
delivery of a controlled substance, I.C. § 37-2732(a). In exchange for his guilty pleas, the state
dismissed additional charges. The district court sentenced Nay to a unified term of fifteen years,
with a minimum period of confinement of ten years, for vehicular manslaughter and a concurrent
unified life sentence, with a minimum period of confinement of seven years, for delivery of a
controlled substance. Nay filed an I.C.R. 35 motion challenging the sentence imposed for
delivery of a controlled substance, but stated he was not challenging the sentence imposed for
vehicular manslaughter because “it was just for him to receive said sentence.” The district court




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denied the Rule 35 motion.        Nay appealed both sentences and this court affirmed in an
unpublished opinion. State v. Nay, Docket Nos. 38322 and 38323 (Ct. App. Sep. 14, 2011).
       In June 2012, Nay filed a petition for post-conviction relief alleging ineffective assistance
of counsel. Nay also filed a motion for appointment of counsel which was denied. In denying
the motion, the district court stated that the “file will be reviewed to determine if there is a basis
for post-conviction relief. If the petition is not subject to summary dismissal pursuant to I.C.
§ 19-4906(b), counsel will be appointed to represent [Nay] at any evidentiary hearing.” The
state then filed an answer and the district court issued a notice of intent to dismiss. Nay filed a
response, after which the district court entered an order of dismissal. Nay filed an appeal and a
request for appellate counsel. The district court denied this request.
       On appeal, the state filed a motion requesting the Idaho Supreme Court remand the case
for consideration of Nay’s motion for appointment of counsel to determine whether his petition
alleged the possibility of a valid claim. 1 The Court granted the motion and suspended the appeal.
The district court thereafter entered a second order denying the appointment of post-conviction
counsel.
                                                 II.
                                            ANALYSIS
       Nay argues the district court erred in denying his request for post-conviction counsel and
by summarily dismissing his petition for post-conviction relief. We address each claim in turn.
A.     Appointment of Counsel
       If a post-conviction petitioner is unable to pay for the expenses of representation, the trial
court may appoint counsel to represent the petitioner in preparing the petition in the trial court
and on appeal. I.C. § 19-4904. The decision to grant or deny a request for court-appointed
counsel lies within the discretion of the district court. Charboneau v. State, 140 Idaho 789, 792,
102 P.3d 1108, 1111 (2004). When a district court is presented with a request for appointed
counsel, the court must address this request before ruling on the substantive issues in the case.
Id.; Fox v. State, 129 Idaho 881, 885, 934 P.2d 947, 951 (Ct. App. 1997). The district court



1
         The district court’s order dismissing Nay’s petition solely addressed the issue of whether
the claims should be subject to summary dismissal. The state, presumably recognizing the
district court did not address the correct legal standard in denying Nay’s request for appointment
of counsel, made this motion in response.

                                                  2
abuses its discretion where it fails to determine whether a petitioner for post-conviction relief is
entitled to court-appointed counsel before denying the petition on the merits. See Charboneau,
140 Idaho at 793, 102 P.3d at 1112.
       In determining whether to appoint counsel pursuant to Section 19-4904, the district court
should determine if the petitioner is able to afford counsel and whether the situation is one in
which counsel should be appointed to assist the petitioner. Charboneau, 140 Idaho at 793, 102
P.3d at 1112. In its analysis, the district court should consider that petitions filed by a pro se
petitioner may be conclusory and incomplete. See id. at 792-93, 102 P.3d at 1111-12. Facts
sufficient to state a claim may not be alleged because they do not exist or because the pro se
petitioner does not know the essential elements of a claim. Id. Some claims are so patently
frivolous that they could not be developed into viable claims even with the assistance of counsel.
Newman v. State, 140 Idaho 491, 493, 95 P.3d 642, 644 (Ct. App. 2004). However, if a
petitioner alleges facts that raise the possibility of a valid claim, the district court should appoint
counsel in order to give the petitioner an opportunity to work with counsel and properly allege
the necessary supporting facts. Charboneau, 140 Idaho at 793, 102 P.3d at 1112.
       Nay’s petition alleged his attorney provided ineffective assistance of counsel in a
multitude of ways. 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 defendant
must show that the attorney’s performance was deficient and that the defendant 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). 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. Id. 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).




                                                  3
       1.      Motion to suppress
       Nay argues his attorney provided ineffective assistance by failing to move to suppress
statements Nay made to police while he was in the hospital. 2 In its notice of intent to dismiss,
the district court indicated Nay failed to specify which statements should have been suppressed.
The district court also noted that the effect that a guilty plea would have on a potential
suppression motion was explained to Nay when he pled guilty. In Nay’s response to the district
court’s notice, he again failed to articulate which statements he desired be suppressed.
       Furthermore, at the change of plea hearing, the district court inquired as to whether Nay
made any confessions or admissions.         Nay responded that he did not.       However, shortly
thereafter the following colloquy took place:
               [STATE]:        Going back to your question Your Honor asked about
       whether he made a confession to the police, there was an interview with the
       police. I don’t know if you would characterize it as a confession, necessarily, but
       that’s something Your Honor maybe should know, in all candor.
               [DEFENSE COUNSEL]:              And I have discussed this with Mr. Nay, and
       he did conduct an interview with the police. He did not give any information that
       ultimately, I think, led to his immediate conviction.
               And we went over whether or not a suppression motion would be in order,
       and we made the determination that a suppression motion was not going to be
       necessary.
               THE COURT:               Well, of course, that’s addressed on page 5 of the
       guilty plea examination form in Questions 22 and 23 specifically.

Question 22 of the guilty plea questionnaire asks, “Are there any motions or other requests for
relief that you believe should still be filed in this case?” In response, Nay circled, “No.”
Question 23 asked, “Do you understand that if you enter an unconditional guilty plea in this case
you will not be able to challenge any ruling that came before the guilty plea including . . . any
issues about any statements you may have made to law enforcement?” Nay circled, “Yes.”
Given the colloquy at Nay’s plea hearing, along with his guilty plea advisory form, the district
court correctly concluded that Nay failed to raise the possibility of a valid claim regarding
counsel’s failure to file a motion to suppress.



2
       Nay’s conviction for vehicular manslaughter stemmed from an incident where Nay lost
consciousness while driving, crossed over multiple lanes of traffic, and collided with an
oncoming vehicle. Following the collision, Nay was transported to the hospital where he made
statements to police.

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       2.      False information in presentence investigation report
       Nay argues his attorney provided ineffective assistance by failing to correct false
information in the presentence investigation report (PSI) and that the district court used this
information against him at sentencing. Specifically, Nay contends the state gave the victim’s
family false information, and as a result, the victim’s family sent letters to the PSI investigator
containing false information. However, this issue was specifically addressed at the sentencing
hearing. There, the state advised the district court:
               Judge, there is one discrepancy I would like to point out, and that is with
       regards to this latest addendum to the presentence investigation for the letter, it’s a
       two-page single-spaced letter, in the form, basically, of an e-mail from [the
       victim’s family member] directed to Your Honor dated the 18th of November.
               In the last paragraph, Judge, she references a meeting that we had in which
       she claims that I told her that [Nay] had wrote a letter saying that, quote, “[the
       victim] had deserved to die,” and that it was [the victim’s] fault that he died, and
       she felt like she had been kicked in the stomach.
               I have reviewed that--that struck me as inaccurate. And, in fact, . . .
               ....
               . . . it is inaccurate, and I talked to the victim witness coordinator to make
       sure that that was also her point of view on it, and she agreed.
               ....
               . . . And so, Judge, I think what she’s referring to is what’s included in the
       presentence investigation report. I don’t--there isn’t a page number, but there is a
       handwritten letter from [Nay] to his girlfriend.
               ....
               . . . [Nay] talks about how that the victim took his life into his own hands
       because his seat wasn’t bolted, et cetera, and those were things that we shared as
       far as what we think that the defensive strategy was going to be in the case.
               It wasn’t a matter of us telling the victim--and I can’t control too much. I
       didn’t realize there was a miscommunication going on there. We never said that
       he deserved to die, or anything like that[.]

Counsel for Nay then responded, “And we were also troubled by that. We thank the State for the
correction and clarification on that. There was certainly no intent on Mr. Nay’s part to at all
besmirch the name of the victim of this crime.” Furthermore, Nay addressed the district court at
sentencing, expressed remorse, and acknowledged his actions resulted in the victim’s death.
Thus, the record demonstrates Nay’s claim that his attorney provided ineffective assistance for
failing to object to erroneous information in the PSI is without merit, and Nay has failed to raise
the possibility of a valid claim.



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       3.      Inducement of plea on incorrect advice
       Nay argues his attorney provided ineffective assistance by informing Nay that, if he pled
guilty, he would not receive a life sentence and by anticipating Nay would not receive a sentence
exceeding fifteen years, with a minimum period of confinement of five years. However, the plea
agreement and the guilty plea advisory form demonstrate Nay was aware of the potential
sentences he could receive. The plea agreement contemplated that the state would recommend
thirteen years fixed in the manslaughter case and between fifteen years and life in the delivery of
a controlled substance case. During Nay’s plea colloquy, the district court advised him that the
plea agreement was simply a recommendation and that it was not binding on the court. Nay
confirmed he understood this. Further, the guilty plea advisory form contained the following
statement:
              I understand that my plea agreement is a non-binding plea agreement.
       This means that the judge is not bound by the agreement or any sentencing
       recommendations, and may impose any sentence authorized by law, up to the
       maximum sentence for any offense. Because the court is not bound by the
       agreement, if the district court chooses not to follow the agreement, I will not
       have the right to withdraw my guilty plea.

Nay placed his initials next to this statement. Moreover, when the district court inquired of Nay
whether anyone promised leniency from the district court, Nay stated they had not. Thus, even if
Nay could establish deficient performance with respect to his attorney’s recommendation to
plead guilty, Nay is unable to establish prejudice and has failed to raise the possibility of a valid
claim. See Buss v. State, 147 Idaho 514, 517, 211 P.3d 123, 126 (Ct. App. 2009) (even if trial
counsel fails to advise defendant of the consequences of a plea, where the record demonstrates
the defendant was advised of the consequences before pleading guilty, a finding of prejudice
under the second prong of Strickland is precluded). Thus, Nay has failed to demonstrate the
possibility of a valid claim that his attorney induced him to plead guilty on incorrect advice.
       4.      Failure to investigate
       Nay argues his attorney provided ineffective assistance in failing to investigate the case
properly. Specifically, Nay contends his attorney should have sought forensic test results from
the blood and urine samples taken by police following the vehicular crash. However, the state’s
factual basis given at the guilty plea hearing indicated a test was performed and that Nay had
methamphetamine and amphetamine in his system. The state contended Nay was coming down


                                                 6
off of methamphetamine at the time he crashed. Nay confirmed this during allocution. Nay has
not explained how these test results were deficient or explained what further testing would have
accomplished.     Moreover, the guilty plea form inquired whether “there was anything you
requested your attorney do that has not been done.” Nay responded, “No.” Thus, Nay has failed
to state the possibility of a valid claim of failing to investigate.
        5.      Failure to file an appeal
        Nay argues his attorney provided ineffective assistance by failing to file an appeal after
the district court denied his Rule 35 motion on the delivery of a controlled substance case.
Specifically, although Nay’s attorney filed direct appeals in both underlying cases, he contends
his attorney should have also appealed from the denial of the Rule 35 motion.
        A defendant’s right to representation by counsel extends to all critical stages of his or her
trial, including appeal. Flores v. State, 104 Idaho 191, 194, 657 P.2d 488, 491 (Ct. App. 1983);
see also Douglas v. California, 372 U.S. 353, 357-58 (1963). This right to counsel includes the
right to effective assistance of counsel. State v. Clayton, 100 Idaho 896, 897, 606 P.2d 1000,
1001 (1980). Where a criminal defendant advises his or her attorney of a desire to appeal, and
the attorney fails to take the necessary steps to file an appeal, such a defendant has been denied
his or her constitutional right to the effective assistance of counsel at a critical stage in the
proceedings. Flores, 104 Idaho at 194-95, 657 P.2d at 491-92.
        While Nay claims in his appellate brief that he told his attorney to file an appeal from the
denial of the Rule 35 motion, this assertion is not supported by his petition, the accompanying
affidavit, or Nay’s response to the district court’s notice of intent to dismiss. Rather, Nay’s
claim below was that his attorney provided ineffective assistance in failing to consult with Nay
regarding whether to appeal.
        Where the defendant has not conveyed his or her intent with respect to an appeal either
way, the court must first determine whether trial counsel consulted with the defendant about an
appeal. Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000); Pecone v. State, 135 Idaho 865, 868,
26 P.3d 48, 51 (Ct. App. 2001). In this context, the term “consult” means advising the defendant
about the advantages and disadvantages of pursuing an appeal and making a reasonable effort to
discover the defendant’s wishes. Flores-Ortega, 528 U.S. at 478. If counsel has consulted with
the defendant, then counsel performs in a professionally unreasonable manner only by failing to
follow the defendant’s express instructions with regard to an appeal. Id. If counsel has not


                                                    7
consulted with the defendant, then counsel’s performance in failing to consult with the defendant
is itself deficient if a rational defendant would want to appeal or the particular defendant
reasonably demonstrated to counsel that he or she was interested in appealing. Id. at 480. In
making these determinations, courts must take into account all the information counsel knew or
should have known. Id.
       Here, Nay’s attorney appealed Nay’s sentence and this Court reviewed that sentence.
The Rule 35 motion did not present any material new evidence 3 for the district court to consider
and further review by this Court would have been futile. Moreover, Nay’s attorney augmented
the record on direct appeal to include the Rule 35 pleadings. Under these circumstances, a
rational defendant would not desire to appeal the denial of the Rule 35 motion as well.
Therefore, Nay failed to present the possibility of a valid claim regarding the failure to file an
appeal from the Rule 35 motion.
B.     Summary Dismissal
       Nay argues the district court erred by summarily dismissing his petition. 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, 121 Idaho at 921, 828 P.2d at 1326. 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



3
        Nay argued a reduction in the sentence would serve the interests of justice and would
potentially allow Nay to enroll in Department of Corrections programming in a more timely
fashion. The motion also indicated Nay desired to enter the Theraputic Community Program and
begin making restitution payments as soon as possible.

                                                8
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
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, 140 Idaho at 792, 102 P.3d at 1111; Sheahan v. State, 146
Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). If a genuine issue of material fact is


                                                  9
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).
       Given our conclusion above, that Nay has failed to demonstrate even the possibility of a
valid claim, it necessarily follows that Nay failed to meet the more demanding standard required
to survive summary dismissal. Therefore, the district court did not err in summarily dismissing
Nay’s petition.
                                               III.
                                        CONCLUSION
       The district court correctly determined that Nay failed to raise even the possibility of a
valid claim. Accordingly, we affirm the judgment summarily dismissing Nay’s petition for post-
conviction relief. No costs or attorney fees are awarded on appeal.
       Chief Judge GUTIERREZ and Judge LANSING, CONCUR.




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