                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 36805

JEFFERY TRENT GARNER,                              )     2010 Unpublished Opinion No. 621
                                                   )
        Petitioner-Appellant,                      )     Filed: August 30, 2010
                                                   )
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STATE OF IDAHO,                                    )     THIS IS AN UNPUBLISHED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. Thomas F. Neville, District Judge.

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

        Jeffery Trent Garner, Boise, pro se appellant.

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

LANSING, Chief Judge
        Jeffery Trent Garner appeals from the district court’s order summarily dismissing his
petition for post-conviction relief. We affirm.
                                                  I.
                                  FACTS AND PROCEDURE
        Garner pleaded guilty to lewd conduct with a minor, Idaho Code Section 18-1508. In
exchange for his guilty plea, an additional charge was dismissed. The district court sentenced
Garner to a unified term of twenty years, with ten years fixed. Garner appealed, claiming that
the district court abused its discretion by imposing an excessive sentence. This Court affirmed.
State v. Garner, Docket No. 34076 (Ct. App. Jan. 14, 2008) (unpublished).
        Thereafter, Garner filed a pro se petition for post-conviction relief alleging three claims
for relief:
                (a) Prosecutor failed duty to provide a proffer of intent; (id) those factors
        that lesson or negate . . .,

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              (b) The lack of proffer of intent, ineffective counsel, lack of ability of
       defendant, negates knowledgeable plea.
              (c) Lack of Disability Law/Medical Law, . . ., Court, Prosecutor, Defense
       Counsel, Defendant, denied fair/just process. (1.)

Overlapping these claims somewhat, Garner also asserted three claims of ineffective assistance
of counsel:
               (a) Failure to place adversarial testing; Intent; collaboration of witness; et.
       seq.
               (b) Failure to be reasonably knowledgeable in Disability law, and
       disability etiquette.
               (c) Failure to properly instruct defendant in standards of law (a,b,c,
       involuntary plea).

Garner also filed an affidavit in support of his petition. The State filed an answer and a motion
for summary dismissal, contending that the petition failed to state a claim for which relief may
be granted and that there was no genuine issue of material fact because Garner had failed to
support his claims with admissible evidence. Garner did not respond. Thereafter, the district
court summarily dismissed the petition. Garner filed a motion for reconsideration, which the
district court denied. Garner appeals.
                                                 II.
                                           ANALYSIS
       An application for post-conviction relief initiates a proceeding that is civil in nature.
State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Clark v. State, 92 Idaho 827,
830, 452 P.2d 54, 57 (1969); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct.
App. 1992). Like a plaintiff in a civil action, the applicant must prove by a preponderance of
evidence the allegations upon which the request for post-conviction relief is based. I.C. § 19-
4907; Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). An application for
post-conviction relief differs from a complaint in an ordinary civil action. An application 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, an application for post-conviction relief must be
verified with respect to facts within the personal knowledge of the applicant, and affidavits,
records or other evidence supporting its allegations must be attached, or the application must
state why such supporting evidence is not included with the application. I.C. § 19-4903. In



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other words, the application must present or be accompanied by admissible evidence supporting
its allegations, or the application will be subject to dismissal.
        Idaho Code Section 19-4906 authorizes summary dismissal of an application for post-
conviction relief, either pursuant to motion of a party or upon the court’s own initiative.
Summary dismissal of an application pursuant to I.C. § 19-4906 is the procedural equivalent of
summary judgment under I.R.C.P. 56.           Summary dismissal is permissible only when the
applicant’s evidence has raised no genuine issue of material fact that, if resolved in the
applicant’s favor, would entitle the applicant to the requested relief. If such a factual issue is
presented, an evidentiary hearing must be conducted. Gonzales v. State, 120 Idaho 759, 763, 819
P.2d 1159, 1163 (Ct. App. 1991); Hoover v. State, 114 Idaho 145, 146, 754 P.2d 458, 459 (Ct.
App. 1988); Ramirez v. State, 113 Idaho 87, 89, 741 P.2d 374, 376 (Ct. App. 1987). Summary
dismissal of an application for post-conviction relief may be appropriate, however, even where
the State does not controvert the applicant’s evidence because the court is not required to accept
either the applicant’s mere conclusory allegations, unsupported by admissible evidence, or the
applicant’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). On review of
a dismissal of a post-conviction relief application without an evidentiary hearing, we determine
whether a genuine issue of fact exists based on the pleadings, depositions, and admissions
together with any affidavits on file. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct.
App. 1993).
        In order to prevail on an ineffective assistance of counsel claim, it must be shown that
trial counsel’s performance was deficient and that such performance resulted in prejudice to the
defendant. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Where the petitioner was
convicted on a guilty plea, he must show that there is a reasonable probability that the outcome
of the proceeding would have been different, i.e., that the plea would not have been entered, but
for counsel’s deficient performance. Hill v. Lockhart, 474 U.S. 52, 59 (1985).
         Based in part on Garner’s affidavit submitted in support of his petition, the district court
interpreted the substance of Garner’s claims to be that his counsel was ineffective by failing to
inform him of the intent element of the crime before he pleaded guilty and that Garner was
entitled to relief from his conviction because the complaining witness was untruthful and the
prosecution withheld this information.      The substance of Garner’s appellate claims of district

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court error in the dismissal of his petition are difficult to discern as his briefing is less than fully
focused, but Garner does not take direct issue with the district court’s interpretation of his
petition.
        The district court dismissed the “intent element” claim on the reasoning that, even
assuming defense counsel’s performance was deficient, Garner had failed to show prejudice
because Garner was informed of the intent element through other means, specifically through the
charging indictment that included the intent element of the crime.            The district court thus
apparently took judicial notice of the underlying criminal case file. Garner has not taken steps to
include any of the criminal case file, including the indictment, in the record on appeal. It is the
responsibility of the appellant to provide a sufficient record on appeal to substantiate his or her
claims of error. State v. Walsh, 141 Idaho 870, 876, 119 P.3d 645, 651 (Ct. App. 2005); State v.
Murinko, 108 Idaho 872, 873, 702 P.2d 910, 911 (Ct. App. 1985). In the absence of an adequate
record demonstrating error, we will not presume error. State v. Beason, 119 Idaho 103, 105, 803
P.2d 1009, 1011 (Ct. App. 1991). For this reason, Garner has failed to show that the district
court erred in dismissing this claim on the ground that Garner could not have been prejudiced by
counsel’s alleged omission to inform Garner of the intent element of the offense.
        The district court dismissed Garner’s “untruthful complaining witness” claim on the
ground that Garner had not provided any admissible evidence that the witness was, in fact,
untruthful. The record supports the district court’s disposition of this issue. Absent admissible
evidence, Garner’s claim consists of a mere conclusory allegation, and summary dismissal was
appropriate. Roman, 125 Idaho at 647, 873 P.2d at 901.
        Garner also takes issue with the district court’s dismissal of his “disability law” claim.
While the district court’s order of dismissal did not specifically address this claim, the State
asserts, among other things, that Garner’s petition fails to explain how his asserted disability
affects the validity of his criminal conviction. We agree. Garner has not stated a cognizable
claim for post-conviction relief with regard to his disability.
        Finally, Garner advances a number of issues and concerns that were not part of his
petition filed in the district court. Generally, issues not raised below may not be considered for
the first time on appeal. Sanchez v. Arave, 120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991);
Monahan v. State, 145 Idaho 872, 877, 187 P.3d 1247, 1252 (Ct. App. 2008). We therefore
decline to address Garner’s additional issues. In addition, Garner attempts to raise claims of

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district court error for the first time in his reply brief. A reviewing court looks to the initial brief
on appeal for the issues presented on appeal. Hernandez v. State, 127 Idaho 685, 687, 905 P.2d
86, 88 (1995); Henman v. State, 132 Idaho 49, 51, 966 P.2d 49, 51 (Ct. App. 1998). Issues
raised for the first time in a reply brief will not be addressed on appeal. Hernandez, 127 Idaho at
687, 905 P.2d at 88; Henman, 132 Idaho at 51, 966 P.2d at 51. Therefore, we decline to address
any issues that Garner did not raise in his opening brief.
       The district court’s order summarily dismissing Garner’s petition for post-conviction
relief is affirmed. No costs or attorney fees on appeal.
       Judge GUTIERREZ and Judge GRATTON CONCUR.




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