               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 41942

CULLEN R. SIMS,                                  ) 2015 Opinion No. 52
                                                 )
       Petitioner-Appellant,                     ) Filed: August 24, 2015
                                                 )
v.                                               ) Stephen W. Kenyon, Clerk
                                                 )
STATE OF IDAHO,                                  )
                                                 )
       Respondent.                               )
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Lynn G. Norton, District Judge.

       Summary dismissal of petition for post-conviction relief, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Eric D. Fredericksen, Deputy
       Appellate Public Defender, Boise, for appellant.

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

GRATTON, Judge
       Cullen R. Sims appeals from the district court’s summary dismissal of his petition for
post-conviction relief. We affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       The facts in this case are set forth in this Court’s unpublished decision in Sims’ direct
appeal, State v. Sims, Docket No. 41078 (Ct. App. July 17, 2014), as follows:
               On August 9, 2012, police observed Sims driving and attempted to stop
       him in order to serve him with an arrest warrant for a parole violation. Sims
       failed to stop, rammed his vehicle into a police vehicle, struck another police
       vehicle, and sped away. While fleeing, Sims collided with a third party. The
       crash resulted in an injury to the third party and an injury to Sims’[ ] passenger.
       Sims was transported to a hospital for treatment of his injuries and a possible drug
       overdose.


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Our record contains additional facts that while Sims was in the hospital, he was subjected to a
warrantless blood draw to test for alcohol or other intoxicating substances. Sims asserts that the
blood draw was performed while he was unconscious and without his consent.
       Pursuant to a plea agreement, Sims pled guilty to aggravated driving under the influence
(DUI), I.C. § 18-8006. The district court sentenced Sims to a unified term of fifteen years with
seven and one-half years determinate. In the time between the entry of Sims’ guilty plea and his
sentencing, the United States Supreme Court issued its opinion in Missouri v. McNeely, ____
U.S. ___, 133 S. Ct. 1552, 1568 (2013), holding that the natural dissipation of alcohol in the
bloodstream does not constitute a per se exigency to justify conducting a blood test without a
warrant. Id. at ___, 133 S. Ct. at 1568.
       Sims filed a petition for post-conviction relief, alleging ineffective assistance of counsel
on the basis that his counsel did not file a motion to suppress his blood test results. Specifically,
Sims argued that the newly issued McNeely opinion provided a valid basis for filing a motion to
suppress. 1 In his petition, he also requested that he be allowed to file such motion and if
unsuccessful, then to withdraw his guilty plea or file an appeal. The district court summarily
dismissed Sims’ claim, concluding that Sims failed to establish a genuine issue of material fact
as to whether his counsel’s performance was deficient in not filing the motion to suppress his
blood test results. Sims timely appeals.
                                                 II.
                                           ANALYSIS
       On appeal, Sims alleges that he raised an issue of material fact regarding whether his
counsel was ineffective for failing to file a motion to withdraw his guilty plea and a motion to
suppress his blood test results. Relying on McNeely, Sims contends that his blood was drawn in
violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures. He
argues that McNeely provides a basis for him to withdraw his guilty plea and to suppress the
results of his blood draw. Accordingly, he argues his counsel was ineffective for failing to file
such motions.




1
       Sims also alleged his counsel was ineffective for not appealing the length of his sentence,
and for not filing a motion to suppress the statements he made while he was in the hospital.
However, Sims does not raise these issues on appeal.
                                                 2
       A petition for post-conviction relief initiates a civil, rather than criminal, proceeding,
governed by the Idaho Rules of Civil Procedure. I.C. § 19-4907; State v. Yakovac, 145 Idaho
437, 443, 180 P.3d 476, 482 (2008). See also Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642,
646 (2008). Like plaintiffs in other civil actions, the petitioner must prove by a preponderance of
evidence the allegations upon which the request for post-conviction relief is based. Stuart v.
State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); 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, however, in that it must contain more than “a short and plain
statement of the claim” that would suffice for a complaint under I.R.C.P. 8(a)(1). State v. Payne,
146 Idaho 548, 560, 199 P.3d 123, 135 (2008); Goodwin, 138 Idaho at 271, 61 P.3d at 628. The
petition 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. I.C. § 19-4903. In other
words, the petition must present or be accompanied by admissible evidence supporting its
allegations, or it will be subject to dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169,
1172 (Ct. App. 2011); Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994).
       Idaho Code § 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.” I.C. § 19-4906(c). 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. Payne, 146 Idaho at
561, 199 P.3d at 136; Roman, 125 Idaho at 647, 873 P.2d at 901. Moreover, because the district
court rather than a jury will be the trier of fact in the event of an evidentiary hearing, the district
court is not constrained to draw inferences in the petitioner’s favor, but is free to arrive at the
most probable inferences to be drawn from the evidence. Yakovac, 145 Idaho at 444, 180 P.3d at
483; Wolf, 152 Idaho at 67, 266 P.3d at 1172; 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. Chavez v. Barrus, 146 Idaho 212, 218, 192 P.3d 1036,

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1042 (2008); Hayes, 146 Idaho at 355, 195 P.2d at 714; Farnsworth v. Dairymen’s Creamery
Ass’n, 125 Idaho 866, 868, 876 P.2d 148, 150 (Ct. App. 1994).
       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); McKay v. State, 148 Idaho 567, 570, 225 P.3d 700, 703 (2010); DeRushé v. State, 146
Idaho 599, 603, 200 P.3d 1148, 1152 (2009); Charboneau v. State, 144 Idaho 900, 903, 174 P.3d
870, 873 (2007); Berg v. State, 131 Idaho 517, 518, 960 P.2d 738, 739 (1998); Murphy v. State,
143 Idaho 139, 145, 139 P.3d 741, 747 (Ct. App. 2006); Cootz v. State, 129 Idaho 360, 368, 924
P.2d 622, 630 (Ct. App. 1996). 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 Payne, 146 Idaho at 561, 199 P.3d at 136; 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 v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004);
Berg, 131 Idaho at 519, 960 P.2d at 740; Stuart v. State, 118 Idaho 932, 934, 801 P.2d 1283,
1285 (1990); Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008); Roman,
125 Idaho at 647, 873 P.2d at 901. If a genuine issue of material fact is presented, an evidentiary
hearing must be conducted to resolve the factual issues. Kelly, 149 Idaho at 521, 236 P.3d at
1281; Payne, 146 Idaho at 561, 199 P.3d at 136; 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); Berg, 131 Idaho at 519, 960 P.2d at 740; Sheahan, 146 Idaho at 104, 190 P.3d at
923; Roman, 125 Idaho at 647, 873 P.2d at 901. Over questions of law, we exercise free review.
Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069 (2009); Downing v. State, 136 Idaho



                                                4
367, 370, 33 P.3d 841, 844 (Ct. App. 2001); Martinez v. State, 130 Idaho 530, 532, 944 P.2d
127, 129 (Ct. App. 1997).
       A claim of ineffective assistance of counsel may properly be brought under the Uniform
Post-Conviction Procedure Act. Barcella v. State, 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct.
App. 2009). 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); Self v. State, 145 Idaho 578,
580, 181 P.3d 504, 506 (Ct. App. 2007). 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); Knutsen v. State, 144 Idaho
433, 442, 163 P.3d 222, 231 (Ct. App. 2007). Where, as here, the petitioner was convicted upon
a guilty plea, to satisfy the prejudice element, the petitioner must show that there is a reasonable
probability that, but for counsel’s errors, he or she would not have pled guilty and would have
insisted on going to trial. Plant v. State, 143 Idaho 758, 762, 152 P.3d 629, 633 (Ct. App. 2006).
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. Gonzales v.
State, 151 Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011).
       In a post-conviction proceeding challenging an attorney’s failure to pursue a motion in
the underlying criminal action, the district court may consider the probability of success of the
motion in question in determining whether the attorney’s inactivity constituted ineffective
assistance. Lint v. State, 145 Idaho 472, 477, 180 P.3d 511, 516 (Ct. App. 2008). 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. Id. at 477-78, 180 P.3d at 516-17.
A.     Withdrawal of Guilty Plea
       Sims first argues his counsel was ineffective for failing to advise him of the ramifications
of McNeely, and had he been properly advised, there is a reasonable probability that a motion to
withdraw his guilty plea would have been successful. He asserts that because the McNeely
opinion had not yet been issued at the time he entered his guilty plea, he was unaware of a
potential defense available to him, which could have been asserted through a motion to suppress.

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In a motion to withdraw a guilty plea prior to sentencing, a defendant must demonstrate a just
reason for withdrawing the plea. Idaho Criminal Rule 33(c); State v. Arthur, 145 Idaho 219, 222,
177 P.3d 966, 969 (2008). A constitutional defect in the plea is not necessary in order to show a
just reason. State v. Stone, 147 Idaho 330, 333, 208 P.3d 734, 737 (Ct. App. 2009). We have
previously explained that a just reason is “a plausible reason to justify the withdrawal.” State v.
Rose, 122 Idaho 555, 559, 835 P.2d 1366, 1370 (Ct. App. 1992).
       Sims argues that a motion to suppress his blood results would likely have been granted,
which would have provided a just reason to withdraw his guilty plea. This argument is without
merit as we have recently addressed this issue in State v. Boehm, 158 Idaho 294, 346 P.3d 311
(Ct. App. 2015). In Boehm, prior to sentencing, Boehm moved to withdraw her guilty plea
arguing that McNeely invalidated Idaho’s implied consent scheme.           On appeal, this Court
affirmed the magistrate’s denial of Boehm’s motion, holding that because McNeely did not
directly address the issue that would have been raised by Boehm concerning implied consent, the
issuance of McNeely did not provide a just reason for her to withdraw her guilty plea. Id. at 303-
04, 346 P.3d at 320-21. The reasoning from Boehm is equally applicable here. Had Sims been
allowed to withdraw his guilty plea, the issue that he would have raised in a motion to suppress
would be whether his implied consent constituted a valid exception to the warrant requirement.
As discussed below, since McNeely did not address the issue of implied consent, Sims has failed
to provide a just reason to withdraw his guilty plea by relying on McNeely.
B.     Motion to Suppress
       Sims argues that based upon the holding of McNeely, a motion to suppress his blood test
results would have been granted because his blood was taken without a warrant and without his
affirmative consent, in violation of the Fourth Amendment. Requiring a person to submit to a
blood draw for evidentiary testing is a search and seizure under the Fourth Amendment to the
United States Constitution and Article I, Section 17 of the Idaho Constitution. Schmerber v.
California, 384 U.S. 757, 767 (1966); State v. Wulff, 157 Idaho 416, 418, 337 P.3d 575, 577
(2014). Therefore, warrantless forced blood draws are generally violative of both the state and
federal constitutions. McNeely, ____ U.S. at ___, 133 S. Ct. 1552, 1558; Wulff, 157 Idaho at
419, 337 P.3d at 578. However, the warrant requirement does not apply if the person subjected
to the search has consented. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973); State v.
Dominguez, 137 Idaho 681, 683, 52 P.3d 325, 327 (Ct. App. 2002). Consent must be voluntary

                                                6
and not the result of duress or coercion, either direct or implied. Schneckloth, 412 U.S. at 248;
State v. Whiteley, 124 Idaho 261, 264, 858 P.2d 800, 803 (Ct. App. 1993). The voluntariness of
an individual’s consent is evaluated in light of all the circumstances.          United States v.
Mendenhall, 446 U.S. 544, 557 (1980); Schneckloth, 412 U.S. at 226-27; State v. Hansen, 138
Idaho 791, 796, 69 P.3d 1052, 1057 (2003); Whiteley, 124 Idaho at 264, 858 P.2d at 803. Mere
acquiescence to a claim of authority by a law enforcement officer does not constitute consent.
Bumper v. North Carolina, 391 U.S. 543, 549 (1968); State v. Smith, 144 Idaho 482, 488, 163
P.3d 1194, 1200 (2007); State v. Tietsort, 145 Idaho 112, 118, 175 P.3d 801, 807 (Ct. App.
2007). Whether consent was granted voluntarily, or was a product of coercion, is a question of
fact to be determined by all the surrounding circumstances. Hansen, 138 Idaho at 796, 69 P.3d
at 1057. The State bears the burden to prove consent by a preponderance of the evidence.
United States v. Matlock, 415 U.S. 164, 177 n.14 (1974); Hansen, 138 Idaho at 796, 69 P.3d at
1057; State v. Kilby, 130 Idaho 747, 749, 947 P.2d 420, 422 (Ct. App. 1997).
       Consent, once given, may also be revoked, for “[i]nherent in the requirement that consent
be voluntary is the right of the person to withdraw that consent.” State v. Halseth, 157 Idaho
643, 646, 339 P.3d 368, 371 (2014). Thus, after a defendant has revoked consent, officers no
longer may act pursuant to that initial voluntary consent. State v. Thorpe, 141 Idaho 151, 154,
106 P.3d 477, 480 (Ct. App. 2004). Of course, an individual may renew his consent after
revoking it. Id.
       Relying on Wulff and State v. Arrotta, 157 Idaho 773, 339 P.3d 1177 (2014), Sims claims
that following McNeely the Idaho Supreme Court has held that Idaho’s implied consent law
violated the Fourth Amendment, and therefore, his motion to suppress would have been granted.
This Court has explained the state of Idaho’s implied consent statute in light of the United States
Supreme Court’s decision in McNeely, ____ U.S. ___, 133 S. Ct. 1552, which is contrary to
Sims’ contention:
               In Wulff, our Supreme Court held that the district court “properly
       concluded that Idaho’s implied consent statute was not a valid exception to the
       warrant requirement.” Wulff, 157 Idaho at 423, 337 P.3d at 582. At first glance,
       this holding would appear to preclude the State from continuing to rely on the
       implied consent statute to provide the requisite consent for a warrantless blood
       draw in a suspected DUI case. However, in addressing the constitutionality of the
       statute, the Wulff Court made a salient distinction. It identified “two hurdles” the
       statutory consent must overcome to “qualify as voluntary: (1) drivers give their
       initial consent voluntarily and (2) drivers must continue to give voluntary

                                                7
       consent.” Id. The Court considered that the first hurdle was met by the statute:
       “Drivers in Idaho give their initial consent to evidentiary testing by driving on
       Idaho roads voluntarily.” Id. (emphasis added) (citing Diaz, 144 Idaho at 303,
       160 P.3d at 742). It was the second hurdle the court found problematic, noting
       that Idaho appellate decisions interpreting section 18-8002 had held that a person
       could not revoke his statutorily implied consent. “Because Idaho does not
       recognize a driver’s right to revoke his implied consent,” the Court held, “Idaho
       has a per se exception to the warrant requirement.” Wulff, 157 Idaho at 423, 337
       P.3d at 582. 2 Thus, the Court held, it was overruling previous case law “to the
       extent that they applied Idaho’s implied consent statute as an irrevocable per se
       rule that constitutionally allowed forced warrantless blood draws.” Id.
               That Idaho’s implied consent statute continues to be valid, albeit in a form
       that is revocable, is supported by two subsequent cases issued by our Supreme
       Court. Approximately one month after Wulff, the Court decided Halseth, 157
       Idaho 643, 339 P.3d 368, holding:
               [A]n implied consent statute such as . . . Idaho’s does not justify a
               warrantless blood draw from a driver who refuses to consent . . . or objects
               to the blood draw . . . . Inherent in the requirement that consent be
               voluntary is the right of the person to withdraw that consent.
       Id. at 646, 339 P.3d at 371. 3 Then, several weeks later in State v. Arrotta, 157
       Idaho 773, 774, 339 P.3d 1177, 1178 (2014), the Court cited to Wulff and Halseth
       for the proposition that “a suspect can withdraw his or her statutorily implied
       consent to a test for the presence of alcohol.” Taken together, these decisions lead
       to the conclusion that Idaho’s law regarding statutorily implied consent retains
       validity, but that consent may be terminated by a defendant’s refusal, protest, or
       objection to alcohol concentration testing.

State v. Smith, ___ Idaho ___, ___ P.3d ___ (Ct. App. June 15, 2015) (footnotes omitted)
(internal citations omitted).
       We turn to the application of the facts in this case to the current state of the law. As Sims
recognizes, his warrantless blood draw was not justified by the exigent circumstances exception
to the warrant requirement pursuant to McNeely. However, Sims’ warrantless blood draw was
justified by Idaho’s implied consent statute, a separate and distinct exception to the warrant
requirement. Any person who drives or is in actual physical control of a motor vehicle in Idaho
consents to be tested for alcohol at the request of a peace officer with reasonable grounds to

2
        Earlier in the opinion, the Court also focused on the irrevocability of the statute: “A
holding that the consent implied by statute is irrevocable would be utterly inconsistent with the
language in McNeely denouncing categorical rules that allow warrantless forced blood draws.”
Wulff, 157 Idaho at 422, 337 P.3d at 581.
3
       Halseth does not cite to or reference Wulff.


                                                8
believe the person drove under the influence, which includes consent to draw blood. I.C. § 18-
8002(1), (10). However, the driver may withdraw his or her consent by affirmatively resisting
the blood draw. Halseth, 157 Idaho at 646, 339 P.3d at 371. Here, Sims impliedly consented to
be tested for alcohol by driving a motor vehicle in Idaho. At no point did Sims object to or resist
the blood draw. His alleged unconsciousness does not effectively operate as a withdrawal of his
consent. Therefore, Sims’ statutorily implied consent was effective at the time of the blood
draw. Sims has not met his burden of proving that had his counsel filed a motion to suppress, it
would have been granted.
                                                   III.
                                          CONCLUSION
       Sims failed to demonstrate that the district court erred in granting summary dismissal of
his petition for post-conviction relief. Therefore, the district court’s order dismissing Sims’
petition for post-conviction relief is affirmed.
       Chief Judge MELANSON and Judge GUTIERREZ CONCUR.




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