                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 45910

WESTON DAVID ALLEN,                               )
                                                  )    Filed: August 30, 2019
          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                                                  )    THIS IS AN UNPUBLISHED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 Third Judicial District, State of Idaho,
          Washington County. Hon. Susan E. Wiebe, District Judge.

          Judgment denying petition for post-conviction relief, affirmed.

          Eric D. Fredericksen, State Appellate Public Defender; Brian R. Dickson, Deputy
          Appellate Public Defender, Boise, for appellant. Brian R. Dickson argued.

          Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
          Attorney General, Boise, for respondent. John C. McKinney argued.
                    ________________________________________________

LORELLO, Judge
          Weston David Allen appeals from the district court’s judgment denying his petition for
post-conviction relief following an evidentiary hearing. Allen argues the district court erred in
denying his petition because he proved, by a preponderance of the evidence, that his trial counsel
was ineffective for failing to file a motion to suppress. For the reasons set forth below, we
affirm.
                                                  I.
                        FACTUAL AND PROCEDURAL BACKGROUND
          In his underlying criminal case, the State charged Allen with possession of a controlled
substance (methamphetamine), driving without privileges, and failure to provide proof of
insurance.     Pursuant to a plea agreement, Allen pled guilty to possession of a controlled



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substance; and the State dismissed the other two charges, agreed not to file additional charges
(including a persistent violator enhancement), and agreed to recommend a unified four-year
sentence with two years fixed. The State complied with the terms of the plea agreement,
including the agreed upon sentencing recommendation. However, the district court imposed a
unified seven-year sentence with three years fixed.
       Allen filed a pro se petition for post-conviction relief, alleging that his trial counsel was
ineffective for failing to file an I.C.R. 35 motion for reduction of sentence despite Allen’s request
to do so. Allen further alleged that neither the vehicle he was driving at the time of his arrest,
nor the methamphetamine found during the inventory search of the vehicle, belonged to him.
Allen specifically averred: “I don’t feel I am liable or elegible [sic] for possession when I am not
the owner of the vehicle.”
       Allen also filed a motion for appointment of counsel, which the district court granted.
Post-conviction counsel subsequently filed an amended petition. In the amended petition, Allen
incorporated the allegations and claims from his pro se petition and included a “further claim of
ineffective assistance of counsel,” which was that trial counsel was ineffective for failing to file a
motion to suppress based on the allegedly “illegal impoundment and inventory search of
[Allen’s] vehicle.” Allen asserted the impoundment and inventory search was illegal because it
was done in violation of the Fourth Amendment.
       The district court conducted an evidentiary hearing, at which Allen and the arresting
officer testified. Following the evidentiary hearing, the district court entered an order denying
post-conviction relief and a judgment dismissing Allen’s petition. The district court concluded
that Allen did not have standing to challenge the impoundment and search of the vehicle and
that, even if he did, the impoundment and search complied with constitutional standards. 1 Allen
appeals.




1
         At the evidentiary hearing, Allen did not present any evidence or argument on his claim
that trial counsel was ineffective for failing to file an I.C.R. 35 motion. Accordingly, the district
court declined to address the claim and Allen does not pursue that claim on appeal.

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                                                II.
                                    STANDARD OF REVIEW
       In order to prevail in a post-conviction proceeding, the petitioner must prove the
allegations by a preponderance of the evidence. I.C. § 19-4907; Stuart v. State, 118 Idaho 865,
869, 801 P.2d 1216, 1220 (1990); Baxter v. State, 149 Idaho 859, 861, 243 P.3d 675, 677 (Ct.
App. 2010). When reviewing a decision denying post-conviction relief after an evidentiary
hearing, an appellate court will not disturb the lower court’s factual findings unless they are
clearly erroneous. I.R.C.P. 52(a); Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004);
Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of the
witnesses, the weight to be given to their testimony, and the inferences to be drawn from the
evidence are all matters solely within the province of the district court. Dunlap, 141 Idaho at 56,
106 P.3d at 382; Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We
exercise free review of the district court’s application of the relevant law to the facts. Baxter,
149 Idaho at 862, 243 P.3d at 678.
                                               III.
                                           ANALYSIS
       Allen argues that the district court erred in concluding he was not entitled to
post-conviction relief because the district court’s finding that Allen did not have standing to
challenge the impoundment and inventory search was incorrect and because the district court’s
analysis of the constitutionality of the impoundment and inventory search was incomplete. The
State responds that the district court’s finding regarding standing was supported by the evidence
and the legal conclusion that the impoundment and inventory search complied with the Fourth
Amendment was correct. We hold that Allen has failed to show clear error in the district court’s
finding regarding standing and that Allen failed to prove that trial counsel was deficient for
failing to file a motion to suppress.
       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). Where the alleged deficiency is counsel’s failure to file a
motion to suppress, the court must engage in a two-part inquiry. Wurdemann v. State, 161 Idaho


                                                3
713, 718, 390 P.3d 439, 444 (2017). The first part of the inquiry evaluates whether the motion, if
filed, should have been granted. Id. A motion that would not have been granted by the trial
court ends the inquiry, as counsel’s conduct cannot have fallen below a reasonable standard for
failing to object to admissible evidence. State v. Payne, 146 Idaho 548, 562, 199 P.3d 123, 137
(2008). If, however, the motion should have been granted, the petitioner is still required to
overcome the presumption that the decision not to file the motion was within the wide range of
permissible discretion and trial strategy. Wurdemann, 161 Idaho at 718, 390 P.3d at 444. Under
certain circumstances, it is entirely plausible that a decision not to file a motion to suppress could
be a strategic decision. Id. When evaluating an ineffective assistance of counsel claim, this
Court does not second-guess strategic and tactical decisions, and such decisions cannot serve as a
basis for post-conviction relief unless the decision is shown to have resulted from inadequate
preparation, ignorance of the relevant law or other shortcomings capable of objective review. Id.
at 720-21, 390 P.3d at 446-77. There is a strong presumption that counsel’s performance was
within the wide range of reasonable professional assistance--that is, sound trial strategy.
Hoffman v. State, 153 Idaho 898, 903, 277 P.3d 1050, 1054 (Ct. App. 2012).
       The district court’s analysis focused on the first part of the foregoing inquiry, i.e.,
whether the motion to suppress Allen claimed trial counsel should have filed would have been
granted. The district court first concluded the motion would not have been granted because
Allen failed to prove that he had standing to challenge the impoundment and inventory search of
the vehicle and that, even if he did, the impoundment and inventory search did not violate the
Fourth Amendment. The district court’s determination with respect to standing was premised on
the legal principle that, in order to challenge a search, the individual must establish a reasonable
expectation of privacy in the item searched. See Byrd v. United States, ___ U.S. ___, ___, 138
S. Ct. 1518, 1530 (2018); State v. Hanson, 142 Idaho 711, 716 n.2, 132 P.3d 468, 473 n.2 (Ct.
App. 2006). In the context of vehicles, authorization to drive the vehicle may be sufficient to
confer standing, but the mere fact of driving is not. Hanson, 142 Idaho at 719, 132 P.3d at 476.
       As to the district court’s finding that Allen failed to prove he had standing, he contends
the determination is erroneous. The specific finding challenged is the district court’s statement
that “Allen did not produce any viable evidence to prove that his employer either owned the car,
or gave Allen express permission to use the vehicle” and, as such, Allen failed to show he had


                                                  4
standing. According to Allen, this finding is “directly contradicted by the record” because he
“expressly testified” that his “boss” purchased the vehicle and gave Allen permission to drive it.
Allen’s precise testimony on who owned the vehicle was:
               It was kind of between two people, because my partner and I worked
       together, and he--I found the truck, and he paid the money down on the truck that
       I owed on it. He bought it for me, but I was paying him for the truck, for the
       diesel that I had.
               And I think I paid him some money on it, but I’m not really positive right
       now, because I’m just confused. But it was my truck.
       Allen further testified that the vehicle was “basically” his, although he had not paid for it,
and that he had permission to drive it, but the license plate on it (which was fictitious) belonged
to his “partner” or “boss.” 2 Allen, however, acknowledged that the title was not in his name or
his partner’s name and that, at the time of his arrest, he was unable to provide the officer with
any contact information for his partner. When read in context, the district court’s finding that
Allen failed to produce any “viable evidence” of ownership or permission to drive the vehicle
was not clearly erroneous because it reflects the district court’s conclusion that Allen’s assertions
on this point at the evidentiary hearing were not credible, particularly in light of his sworn
statements in his pro se petition that he did not own the vehicle. The district court expressly
noted this discrepancy at the outset of its finding that Allen failed to produce any “viable
evidence” that he had an ownership or possessory interest in the vehicle. Although Allen argues
that the words “viable” and “credible” are distinct based on their dictionary definitions, we are
not persuaded that any such distinction was made by the district court in the context of its
decision and reject Allen’s argument that the district court “arbitrarily” refused to consider his
testimony.
       Despite the discrepancy and the district court’s related credibility determination, Allen
asserts that the district court was required to accept his testimony as true because there was no
contrary testimony or evidence presented at the evidentiary hearing.            Allen is incorrect.
Credibility determinations are within the province of the factfinder, and Allen has cited no
authority that supports the proposition that the district court was not free to reject Allen’s


2
        Allen explained that he sometimes refers to his “partner” as his “boss” because “he is
older” and “it’s kind of just a nickname.”

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testimony. The authority Allen relies on--Hoffman v. State, 153 Idaho 898, 277 P.3d 1050 (Ct.
App. 2012) and Jones v. United States, 362 U.S. 257 (1960), overruled by United States v.
Salvucci, 448 U.S. 83 (1980)--do not support his claim. In Hoffman, this Court held that
summary dismissal was inappropriate because Hoffman alleged genuine issues of material fact
that would entitle him to an evidentiary hearing at which he would have the opportunity to prove
his claims. Alleging genuine issues of material fact sufficient to avoid summary dismissal does
not mean a district court may not reject a petitioner’s testimony at the evidentiary hearing as not
credible.   As this Court explained in Larkin, 115 Idaho at 73, 764 P.2d at 440, at a
post-conviction evidentiary hearing, the petitioner’s credibility, the weight to be given his or her
testimony, and the inferences to be drawn from the evidence are all matters solely within the
province of the trial court. That Allen was the only witness to testify regarding actual ownership
or authority to drive the vehicle did not compel the court to find in his favor. See id.
       Allen’s reliance on Jones is also misplaced because Jones did not address, much less
reject, the principle stated in Larkin. Rather, Jones involved a legal question regarding whether
the petitioner had articulated a sufficient interest in the premises to establish standing. The Court
rejected the Government’s argument that, for premises searches, ownership or dominion was
necessary to confer standing and held that the petitioner’s testimony that presence with
permission at the time of the challenged search was sufficient. Jones, 362 U.S. at 265. That
holding does not require a finding of error in this case. Indeed, since Jones, the United States
Supreme Court has made clear that Fourth Amendment standing requires proof of a legitimate
expectation of privacy in the area searched. Salvucci, 448 U.S. at 93-95. Allen has failed to
identify any evidence other than his own testimony, which the district court rejected, that
supports his assertion that he had standing to challenge the search such that a motion to suppress
would have been granted. 3 Thus, Allen has failed to show error under the first part of the
inquiry.




3
        To the extent Allen contends that the arresting officer’s testimony that he believed Allen
had standing was sufficient, it was not. It is well-settled that an officer’s subjective beliefs are
irrelevant. Heien v. North Carolina, 574 U.S. 54, 63 (2014).



                                                  6
       Allen also failed to present any evidence relevant to the second part of the inquiry. Allen
never testified that the facts provided to, or discovered by, trial counsel supported Allen’s claim
of standing. Indeed, as noted by the district court, Allen’s initial pro se pleading reflects a
different version--that neither the vehicle nor the methamphetamine belonged to Allen. Allen
also presented no evidence from which to conclude that trial counsel’s decision not to file a
motion to suppress was based on inadequate preparation, ignorance of the law, or other
shortcomings capable of objective review. Rather, Allen’s argument is premised on the assertion
that the motion would have been granted and, therefore, there was no reason not to file it. Such
an assertion is insufficient to satisfy the second part of the applicable inquiry. See Wurdemann,
161 Idaho at 718, 390 P.3d at 444. In short, Allen presented no evidence to overcome the strong
presumption that counsel’s performance was within the wide range of reasonable professional
assistance.
       Allen has failed to show clear error in the district court’s determination that he did not
meet his burden of proving he had standing to challenge the impoundment and inventory search
of the vehicle. Allen also failed to present any evidence to overcome the presumption that trial
counsel’s decision not to file a motion to suppress was strategic and tactical. Thus, the district
court did not err in denying post-conviction relief. 4
                                                 IV.
                                          CONCLUSION
       Allen has failed to show the district court erred in denying his petition for post-conviction
relief. Accordingly, the judgment denying Allen’s petition for post-conviction relief is affirmed.
       Judge HUSKEY and Judge BRAILSFORD, CONCUR.




4
        Because we have concluded that the district court did not err in denying relief based on
its finding that Allen failed to prove he had standing, we need not address the district court’s
alternative conclusion or the parties’ arguments regarding the constitutionality of the
impoundment and inventory search.

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