               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 40391

WALLY KAY SCHULTZ,                               )     2013 Unpublished Opinion No. 605
                                                 )
       Petitioner-Appellant,                     )     Filed: July 31, 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STATE OF IDAHO,                                  )     THIS IS AN UNPUBLISHED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,
       Minidoka County. Hon. Michael R. Crabtree, District Judge.

       Order dismissing petition for post-conviction relief, reversed and remanded.

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

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Wally Kay Schultz appeals from the district court’s dismissal of his successive petition
for post-conviction relief. Specifically, Schultz asserts that the district court erred because it
granted the State’s motion for summary dismissal on grounds other than what the State asserted
in its motion, thereby failing to provide Schultz with sufficient notice. We reverse and remand.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       The prior proceedings were summarized in Schultz v. State, 151 Idaho 383, 256 P.3d 791
(Ct. App. 2011) as follows:
               In separate cases, Schultz was found guilty of felony domestic violence in
       August of 2005, and pleaded guilty to possession of methamphetamine in
       December of 2005. The proceedings were apparently consolidated for sentencing.
       The district court entered judgments of conviction in December 2005, but retained
       jurisdiction over Schultz. After Schultz successfully completed the retained
       jurisdiction program, the district court placed him on probation for five years. To
       that end, the district court issued a “Temporary Order on Rider Review” on


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May 22, 2006, that stated Schultz was placed on probation with “the usual terms
and conditions” and noted that a copy of “the formal paperwork” would be
forthcoming. State v. Schultz, 147 Idaho 675, 676, 214 P.3d 661, 662 (Ct. App.
2009). Three days later, on May 25, 2006, the district court issued another order
entitled, “Order Upon 180-Day Review Hearing, I.C. § 19-2601(4).” Id. This
order also purported to place Schultz on probation and outlined more specific
terms of probation. Id.
         Schultz filed notices of appeal from his judgments of conviction on July 6,
2006, forty-five days after the May 22 order and forty-two days after the May 25
order. The State filed a respondent’s brief on November 24, 2008, arguing that
Schultz’s appeal should be dismissed as untimely because the forty-two-day
deadline for filing should have started to run from the May 22 order. This Court
ultimately agreed with the State and dismissed Schultz’s appeals on May 29,
2009. Id. A remitittur was issued on August 27, 2009.
         After the State filed its respondent’s brief, but before this Court announced
its decision, Schultz filed petitions for post-conviction relief from his underlying
convictions. Schultz filed the petition pertinent to his possession conviction on
January 13, 2009, and the petition pertinent to his domestic violence conviction
on March 24, 2009. The petition addressing the possession conviction alleged
ineffective assistance of trial counsel for failure to conduct a proper investigation,
failure to file a motion to suppress evidence, and failure to request that Schultz’s
sentences run concurrently. The petition attacking the domestic violence
conviction alleged ineffective assistance of trial counsel for failure to “object to
[the] prosecutor’s comments,” failure to call certain witnesses, and failure to
investigate the victim’s “character and morals.”               Schultz also claimed
prosecutorial misconduct, apparently based on various comments made by the
prosecutor during closing argument.
         Although both petitions claimed ineffective assistance of trial counsel,
neither mentioned the failure of counsel to file a timely appeal. After the State
had filed its answer to Schultz’s petition regarding the possession case, Schultz
filed a document entitled “Ammendment [sic] to Post Conviction” on
February 20, 2009. In that document, Schultz attempted to add a claim of
ineffective assistance of counsel for failure to timely file an appeal from Schultz’s
convictions. Similarly, after the State moved for dismissal of the other post-
conviction action, Schultz filed a “Supplemental Brief in Support of Post
Conviction Relief,” arguing ineffective assistance of counsel for failure to file a
timely appeal. The State did not object to these filings but argued for dismissal
because the post-conviction petitions had been filed outside the one-year statute
of limitation, Idaho Code § 19-4902(a). The State argued that the limitation
period began to run when the time for direct appeal from Schultz’s underlying
convictions had expired, July 3, 2006. The district court agreed and dismissed
Schultz’s petitions.
         In these consolidated appeals, Schultz argues that confusion caused by the
district court’s issuance of two separate orders placing him on probation, and his
counsel’s consequent late filing of notices of appeal in the criminal cases, tolled
the statute of limitation until Schultz could reasonably discover that the direct


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       appeals were untimely filed. He asserts that he could not reasonably have
       discovered that the appeals were untimely filed until this Court dismissed the
       direct appeal or, at the earliest, when the State filed its respondent’s brief on
       appeal arguing that the appeal was untimely.

Schultz, 151 Idaho at 384-85, 256 P.3d at 792-93. Ultimately, we held that the statute of
limitation on Schultz’s post-conviction claims was not tolled. Id. at 387, 256 P.3d at 795. The
untimely appeal was invalid and, therefore, did not extend the time to file the post-conviction
claims. Id. Schultz knew of the underlying facts giving rise to his claims of prosecutorial
misconduct and ineffective assistance of trial counsel (for various trial errors) by the conclusion
of the trial and his mistaken belief that he had more time did not extend the period. Id. We did
not address any tolling arguments concerning any ineffective assistance of counsel claim for
failing to timely file the appeal as it was not plead. Id.
       Schultz then filed a successive petition for post-conviction relief, claiming his post-
conviction counsel had been ineffective by failing to obtain affidavits and failing to make
arguments that would have led to a discovery exception and prevented the dismissal of his initial
petitions for post-conviction relief. The district court appointed counsel and Schultz was allowed
to amend his petition. The State moved to dismiss the successive petition on the ground that
Schultz failed to show that post-conviction counsel could have prevented the initial petitions
from being dismissed. The district court granted the State’s motion for summary dismissal, but
on a different ground than what was asserted by the State. The district court held that because
Schultz only asserted a claim of ineffective assistance of post-conviction counsel, and not trial
counsel, he failed to state a viable claim for post-conviction relief. Schultz now timely appeals
the district court’s dismissal of his successive petition.
                                                  II.
                                             ANALYSIS
       Schultz argues that the district court’s dismissal of his successive petition should be
reversed because the district court dismissed his petition on grounds other than what the State
argued in its motion. A court may not grant summary disposition on grounds for which no notice
was given through either the State’s motion or the court’s notice of intent to summarily dismiss.
DeRushé v. State, 146 Idaho 599, 602, 200 P.3d 1148, 1151 (2009). Dismissal on grounds other
than those upon which notice was given ordinarily requires reversal; however, if the appellate
court can conclude that dismissal would have been appropriate on grounds for which notice was

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given, dismissal may be upheld. Ridgley v. State, 148 Idaho 671, 676, 227 P.3d 925, 930 (2010);
Baxter v. State, 149 Idaho 859, 865, 243 P.3d 675, 681 (Ct. App. 2010). The State acknowledges
that the district court dismissed the case on grounds for which no notice was given, but asks this
Court to determine that dismissal was appropriate on the grounds for which notice was given.
While it may be appropriate for us to do so, we are not required to engage, for the first time on
appeal, in an analysis of the grounds for which notice was given but upon which the district court
did not rule.
        As noted, the State contended in its motion that Schultz could not demonstrate that post-
conviction counsel was ineffective under a Strickland v. Washington, 466. U.S. 668, 687-88
(1984) analysis. The district court dismissed on the ground that there is no constitutionally-
protected right to the effective assistance of counsel in post-conviction relief proceedings and
such an allegation, in and of itself, is not among the permissible grounds for post-conviction
relief. 1 In the parties’ briefing on appeal, they debate whether there existed a genuine issue of
material fact as to whether post-conviction counsel was ineffective in failing to submit evidence
and make arguments regarding the statute of limitation, whether the petition could have been
amended, whether this Court left open the issue of tolling as to a claim of ineffective assistance
of trial counsel to timely appeal, and whether Coleman v. Thompson, 501 U.S. 722 (1991) and
Martinez v. Ryan, __ U.S. __, 132 S. Ct. 1309 (2012), leave open the question of circumstances
in which there may be a constitutional right to effective assistance of counsel in post-conviction.
We decline to determine any of these issues for the first time on appeal, and express no opinion
whatsoever as to any such issues. As the State concedes, Schultz was not provided notice of the
ground upon which the district court dismissed the petition. Therefore, the district court erred in
dismissing the petition without appropriate notice.
                                                III.
                                         CONCLUSION
        The district court dismissed the petition on grounds for which no notice was given.
Therefore, the district court’s order dismissing Schultz’s petition for post-conviction relief is
reversed and this matter remanded to the district court.
        Chief Judge GUTIERREZ and Judge LANSING CONCUR.

1
        See Follinus v. State, 127 Idaho 897, 902, 908 P.2d 590, 595 (Ct. App. 1995); Wolfe v.
State, 113 Idaho 337, 339, 743 P.2d 990, 992 (Ct. App. 1987).

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