                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 45427

BRANDON JACK TIMPSON,                          )
                                               )    Filed: October 23, 2018
       Petitioner-Appellant,                   )
                                               )    Karel A. Lehrman, Clerk
v.                                             )
                                               )    THIS IS AN UNPUBLISHED
STATE OF IDAHO,                                )    OPINION AND SHALL NOT
                                               )    BE CITED AS AUTHORITY
       Respondent.                             )
                                               )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Steven J. Hippler, District Judge.

       Judgment dismissing petition for post-conviction relief, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Reed P. Anderson, Deputy
       Appellate Public Defender, Boise, for appellant.

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

HUSKEY, Judge
       Brandon Jack Timpson appeals from the district court’s judgment dismissing his petition
for post-conviction relief. Timpson argues the district court erred in: (1) concluding that the
evidence Timpson provided was not verified; (2) concluding that the evidence provided was not
new or additional and did not show Timpson’s sentence was excessive; and (3) using an
improper standard to evaluate the petition. The judgment dismissing Timpson’s petition for
post-conviction relief is affirmed.
                                               I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       In 2015, Timpson pleaded guilty to robbery and felony possession of a controlled
substance. On the robbery charge, he was sentenced to a twenty-five-year term, with six years
determinate; and on the possession charge, he was sentenced to a seven-year-term, with two


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years determinate, running concurrently with the robbery charge. After an unsuccessful appeal, 1
Timpson filed a pro se petition for post-conviction relief. Attached to the petition was a letter
from Timpson’s attorney advising Timpson that “[i]f you choose to pursue a Rule 35 motion
then you will need to provide my office with your reasons for relief (i.e. the new evidence).”
Also attached was an affidavit from Timpson’s mother stating Timpson had told her, over the
phone, that he wanted to file a Rule 35 motion, and that Timpson’s mother had personally
informed Timpson’s attorney of such.
       The district court appointed post-conviction counsel and allowed Timpson to file an
amended petition. In the amended petition, Timpson alleged his trial attorney was ineffective for
failing to file an Idaho Criminal Rule 35 motion requesting a reduction in his sentence. 2 The
district court issued a notice of intent to dismiss Timpson’s petition. In response, Timpson filed
a reply claiming he sent an email with supporting information to his attorney’s investigator in
order to support a Rule 35 motion, although he did not attach a copy of the email. Timpson
claimed the email explained that he “was granted a trustee position at the prison and was
working full time as a painter and dry wall worker,” and “that the length of the sentence made
him ineligible for programming at the work center, that he had a full time job awaiting him in
both Utah and Idaho, and that his severe health issues would be better treated in the community.”
       The district court concluded Timpson’s petition failed to provide new or additional
evidence to support a Rule 35 motion and that the claims about the contents of Timpson’s email
to his attorney were not properly verified. The district court found “Timpson has not set forth
any admissible evidence for this Court to consider in evaluating the probability of success of a
Rule 35 motion, had it been filed.” But even if the information from Timpson’s reply was
considered, the district court concluded it did not constitute new or additional evidence which
rendered Timpson’s sentence excessive. Thus, the district court dismissed Timpson’s petition
for post-conviction relief.
       Timpson timely appeals.




1
       State v. Timpson, Docket Nos. 43781 & 43782 (Ct. App. Aug. 4, 2016) (unpublished).
2
       Timpson also alleged his trial attorney was ineffective for failing to file a motion to
suppress his confession, but Timpson does not raise that issue in this appeal.
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                                                 II.
                                   STANDARD OF REVIEW
       A petition for post-conviction relief initiates a proceeding that is civil in nature. Idaho
Code § 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 Idaho Rule of Civil
Procedure 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



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inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify
them. Id.
       A motion for reduction of sentence under Rule 35 is essentially a plea for leniency,
addressed to the sound discretion of the court. State v. Knighton, 143 Idaho 318, 319, 144 P.3d
23, 24 (2006); State v. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App. 1989). In
presenting a Rule 35 motion, the defendant must show that the sentence is excessive in light of
new or additional information subsequently provided to the district court in support of the
motion. State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007). In conducting our
review of the grant or denial of a Rule 35 motion, we consider the entire record and apply the
same criteria used for determining the reasonableness of the original sentence. State v. Forde,
113 Idaho 21, 22, 740 P.2d 63, 64 (Ct. App. 1987).
                                                 III.
                                            ANALYSIS
       Timpson argues the district court erred in concluding that: (1) the evidence Timpson
provided in his reply was not verified; and (2) the evidence provided was not new or additional
and did not show Timpson’s sentence was excessive. Timpson also argues the district court’s
statement that Timpson’s “desire for programming and new job opportunities do not erase the
crimes he committed or the reasoning behind the sentence” signals the district court used an
improper standard to evaluate Timpson’s petition.
       First, we address whether the information about the email which allegedly contained
information relevant to a Rule 35 motion was properly verified in Timpson’s reply to the district
court’s notice of intent to dismiss. The district court did not elaborate on its conclusion as to
why it regarded Timpson’s reply to be unverified. However, an inspection of the certificate of
verification provides a possible reason. Rather than referring to the reply, the certificate refers to
Timpson’s amended petition. Timpson claims this was just a copy-and-paste error by counsel--
that counsel took the verification paragraph from the amended petition and pasted it into the
verification for the reply, but did not edit the language to fit the reply. Timpson, citing to State v.
Schmierer, 159 Idaho 768, 771, 367 P.3d 163, 166 (2016) and In re Weick, 142 Idaho 275, 279,
127 P.3d 178, 182 (2005), argues this was a clerical error which, if corrected by this Court,
would not prejudice the State and that failing to correct the clerical error would “exalt form over
substance.”

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       We agree.     By comparing the certificates of verification from Timpson’s amended
petition and his reply, and noting the different dates on which they were signed, it is clear that
counsel’s failure to correct the language of the verification was a mistake and not intended to re-
verify his amended petition. Evaluating the information provided in Timpson’s reply does not
prejudice the State because, as shown below, it does not support a Rule 35 motion. Thus, in
concluding Timpson did not properly verify his reply, the district court erred.
       Second, we consider whether Timpson established, by a preponderance of the evidence,
that his trial attorney rendered ineffective assistance by not filing a Rule 35 motion. Where the
alleged deficiency is counsel’s failure to file a motion, a conclusion that the motion, if pursued,
would not have been granted by the trial court, is generally determinative of both prongs of the
Strickland test: (1) deficient performance; and (2) resulting prejudice. Strickland v. Washington,
466 U.S. 668, 687-88 (1984); Lint v. State, 145 Idaho 472, 477-78, 180 P.3d 511, 516-17 (Ct.
App. 2008). In order to avoid the conclusion that a Rule 35 motion would not have been granted
by the district court, a defendant must show that the sentence is excessive in light of new or
additional information. Huffman, 144 Idaho at 203, 159 P.3d at 840 (2007).
       After considering all the evidence provided by Timpson--the letter from his attorney, his
mother’s affidavit, and the claims Timpson allegedly made in an email to his attorney--it is clear
that Timpson’s Rule 35 motion would not have been granted. To the extent Timpson argues he
did not have to establish that his sentence is excessive, but only that there was a reasonable
probability of a different outcome, he misapplies Strickland and Lint.            The district court
concluded that, after considering all the information provided by Timpson, the filing of a Rule 35
motion would have been futile and would not have been successful, i.e., would not establish that
his sentence is excessive. We conclude the same. Nothing in the letter or affidavit speaks to the
excessiveness of Timpson’s sentence, and the alleged email expresses only “Timpson’s desire
for programming and new job opportunities” during his current state of incarceration--not that
the reasoning behind his sentence is unjust. Because Timpson’s evidence does nothing to alter
the district court’s conclusion that a Rule 35 motion would have been futile, he has not
established a prima facie case of ineffective assistance of counsel and the district court did not
err in dismissing the claim.
       Third, the district court’s statement that Timpson’s “desire for programming and new job
opportunities do not erase the crimes he committed or the reasoning behind the sentence,” does

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not signal the district court applied an incorrect standard to Timpson’s ineffective assistance
claim. When viewed in context, the district court’s statement was clearly meant as a conclusion
that the mitigating evidence Timpson provided did not sufficiently outweigh the evidence and
sentencing goals that supported the sentence imposed. In making this statement, the district
court did not err by applying an incorrect standard.
                                                IV.
                                         CONCLUSION
       Although the district court erred in finding Timpson’s reply was not properly verified, it
did not err in concluding Timpson failed to provide evidence to alter the conclusion that the
district court would not have granted a Rule 35 motion, or in commenting that Timpson desired
to “erase the crimes he committed or the reasoning behind the sentence.” The district court’s
judgment dismissing Timpson’s petition for post-conviction relief is affirmed.
       Judge GUTIERREZ and Judge LORELLO CONCUR.




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