               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 43334

CODY JAMES FORTIN,                              ) 2016 Opinion No. 34
                                                )
       Petitioner-Appellant,                    ) Filed: June 8, 2016
                                                )
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. Patrick H. Owen, District Judge.

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

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

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent. Mark W. Olson argued.
                 ________________________________________________

MELANSON, Chief Judge
       Cody James Fortin appeals from the district court’s summary dismissal of his petition for
post-conviction relief. For the reasons set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       In 2009, the state charged Fortin with aggravated battery (I.C. §§ 18-903(a), 18-907(a),
and 18-907(b)) and use of a deadly weapon in the commission of a crime (I.C. § 19-2520). A
jury found Fortin guilty. Fortin was sentenced to a unified term of twenty-five years, with a
minimum period of confinement of twelve years. This Court later affirmed Fortin’s judgment of
conviction in an unpublished opinion. State v. Fortin, Docket No. 38069 (Ct. App. Apr. 30,
2012). Fortin filed a pro se petition for post-conviction relief alleging multiple instances of



                                                1
ineffective assistance of trial counsel. Fortin alleged that trial counsel was ineffective in failing
to advise him about the possible consequences of refusing to accept the state’s plea offer that
would have settled his underlying criminal case and a separate case,1 resulting in fewer
convictions and less prison time than he received in both cases. In connection with his petition,
Fortin requested the appointment of counsel and that the district court take judicial notice of the
entire record in both the underlying and separate criminal cases. The district court appointed
counsel but denied Fortin’s motion to take judicial notice for lack of specificity. During the
ensuing twenty months of procedural filings and proceedings, Fortin did not file an amended
petition or renew his motion for judicial notice specifying which documents he wanted the
district court to take judicial notice of. The district court summarily dismissed Fortin’s petition
for post-conviction relief. Fortin appeals.
                                                 II.
                                   STANDARD OF REVIEW
       A petition for post-conviction relief initiates a proceeding that is civil in nature. I.C.
§ 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 I.R.C.P. 8(a)(1).


1
        In a separate case, Fortin pled guilty to aggravated battery on a law enforcement officer
(I.C. §§ 18-903(b), 18-907(b), and 18-915(1)), and use of a deadly weapon in the commission of
a crime (I.C. § 19-2520). The district court sentenced Fortin to a unified term of twenty years,
with a minimum period of confinement of five years, to run consecutively to the sentence
previously imposed in his aggravated battery case. This Court later affirmed Fortin’s judgment
of conviction and sentence in an unpublished opinion. State v. Fortin, Docket No. 40602 (Ct.
App. Nov. 8, 2013). Fortin’s post-conviction petition did not include this separate case, nor has
he filed a petition for post-conviction relief relating to it. Accordingly, our review will be
constrained to Fortin’s arguments and allegations in regard to the underlying aggravated battery
case.

                                                 2
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
inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify
them. Id.
       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); DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). 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




                                                  3
appropriate even when the state does not controvert the petitioner’s evidence. See 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);
Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). If a genuine issue of
material fact is presented, an evidentiary hearing must be conducted to resolve the factual issues.
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); Sheahan, 146 Idaho at 104, 190 P.3d at 923. Over questions of law, we exercise free
review. Rhoades, 148 Idaho at 250, 220 P.3d at 1069; Downing v. State, 136 Idaho 367, 370, 33
P.3d 841, 844 (Ct. App. 2001).
                                                III.
                                           ANALYSIS
        Fortin argues that the district court erred in summarily dismissing his petition for
post-conviction relief. He raises three issues on appeal. First, Fortin contends that the district
court violated its duty to take judicial notice of the records of both the underlying and the
separate criminal cases. Second, Fortin asserts that the district court’s refusal to take judicial
notice deprived him of his constitutional right of access to the courts. Third, Fortin argues that
he raised a genuine issue of material fact as to whether trial counsel was ineffective in failing to
advise him of the potential consequences of refusing the state’s plea offer. We address each
issue in turn.
A.      Judicial Notice
        Fortin filed a motion requesting the district court take judicial notice of “the entire
underlying district court and appellate records” in his aggravated battery case and subsequent
appellate case, as well as the companion aggravated battery on a law enforcement officer case.
Fortin’s motion requested the district court to also take notice of “all appendices, exhibits, and




                                                 4
attachments thereto for the purpose of these proceedings.” In its order,2 the district court denied
Fortin’s “blanket request” for judicial notice, ruling:
               Additionally, the Court will deny the motion to take judicial notice of the
       entire files of both underlying cases [the aggravated battery and aggravated
       battery on a law enforcement officer]. In the Court’s view, the proper procedure
       is for the Court to take note of specific matters that are part of the files. These
       items must be made a part of the record in this case. The Court will take judicial
       [notice] of those items in the underlying files that are made a part of this file.
On appeal Fortin contends that his request for judicial notice was not a blanket request and was
sufficiently specific under I.R.E. 201(d). Therefore, he asserts that the district court’s refusal to
take judicial notice constitutes a violation of its mandatory duty under I.R.E. 201(d).
Conversely, the state argues that the district court properly denied Fortin’s motion because he
failed to comply with the rule’s requirements.
       A court’s decision to take judicial notice of an adjudicative fact is a determination that is
evidentiary in nature and is governed by the I.R.E. 201. Newman v. State, 149 Idaho 225, 226,
233 P.3d 156, 157 (Ct. App. 2010). We review lower court decisions admitting or excluding
evidence under the abuse of discretion standard. Dachlet v. State, 136 Idaho 752, 755, 40 P.3d
110, 113 (2002). In reviewing a trial court’s exercise of discretion we consider whether the trial
court: (1) correctly perceived the issue as one of discretion; (2) acted within the boundaries of
such discretion and consistently with applicable legal standards; and (3) reached its decision by
an exercise of reason. Id. at 756, 40 P.3d at 114. However, the interpretation of the rules of
evidence is a question of law over which we exercise free review. State v. Young, 136 Idaho
113, 119, 29 P.3d 949, 955 (2001).
       Idaho Rule of Evidence 201(b) provides that a court may take judicial notice of a fact
when the fact is capable of accurate determination by resort to sources whose accuracy cannot
reasonably be questioned. Under I.R.E. 201(d), a court must take judicial notice of records,


2
        The state also filed a motion requesting judicial notice of ten specifically listed
documents relating to the underlying and separate criminal cases and appellate records. Fortin
alleges that the district court failed to make a ruling on the state’s motion for judicial notice.
Although the district court did not directly address the state’s motion in its order, the context of
the district court’s ruling, coupled with its declaration in its order summarily dismissing the
petition that it took judicial notice of “the underlying files that were made a part of the record in
this case,” implies that the district court granted the state’s motion for judicial notice.

                                                  5
exhibits, or transcripts from the court file in the same or a separate case if requested by a party
and supplied with the necessary information. To provide the necessary information, “the party
shall identify the specific documents or items for which the judicial notice is requested or shall
proffer to the court and serve on all parties copies of such documents or items.” I.R.E. 201(d).
A district court may, without a request take judicial notice, of its own record in the case before it.
Larson v. State, 91 Idaho 908, 909, 435 P.2d 248, 249 (1967).
        The plain language of I.R.E. 201(d) requires specificity in identifying what documents or
items the district court is requested take notice of. See, e.g., Taylor v. McNichols, 149 Idaho 826,
835, 243 P.3d 642, 651 (2010). The Idaho Supreme Court held that where a party is requesting
that a court take judicial notice of a document or items, that party must state with particularity
what he or she is asking the court to take notice of. Id. at 835, 243 P.3d at 652. Where a party
does not meet this requirement, it is improper for a court to take judicial notice under I.R.E.
201(d). Taylor, 149 Idaho at 835, 243 P.3d at 652. If a party fails to specify which material
from the underlying case he or she is requesting, judicial notice is not mandatory. See id.
(holding that, where it was erroneous for the district court to take judicial notice, it certainly
cannot be said that such notice was mandatory and, therefore, I.R.E. 201(d) is inapplicable).
        Fortin argues that Taylor is not controlling and attempts to distinguish the judicial request
in Taylor from his own. Fortin contends that requesting a court to notice the entire record of
multiple cases and appellate records is specific enough under the rule. Such an interpretation
would burden courts, especially within the post-conviction context, and unnecessarily require
courts to sift through large amounts of superfluous information in order to seek out relevant
information that substantiates the party’s claims. Rather, the party is in the best position to
identify and refer the court to the relevant portions of the record that support his or her
arguments. After this issue was discussed by the Idaho Appellate Rules Advisory Committee,
I.R.E. 201(d) was amended to require that a party must designate what portions of the file he or
she is requesting. Accordingly, based on the plain meaning and purpose of the rule, we hold that
the specificity requirement of I.R.E. 201(d) requires that a party provide more than a blanket
reference to an entire case when requesting a court to take judicial notice of documents or items
within it.




                                                  6
       In this case, Fortin filed a pro se motion requesting that the district court take judicial
notice of the entire underlying record of two cases and an appellate record. Fortin did not
specifically identify any particular document or item within those files, nor did he provide copies
of any documents to the court or to the state. The district court denied Fortin’s motion noting the
need for specificity. Despite having notice of his deficient request for judicial notice, Fortin
failed to subsequently amend his motion to comply with I.R.E. 201(d) or attempt to make
documents from the underlying cases a part of the post-conviction case record.             Indeed,
approximately twenty months passed between the district court’s order denying Fortin’s motion
and its order summarily dismissing Fortin’s petition.       During this time Fortin could have
amended his motion for judicial notice and created the record he now alleges the district court
deprived him of. See I.R.E. 201(f) (judicial notice may be taken at any stage of the proceeding).
Therefore, we hold that, because Fortin failed to comply with the requirements of I.R.E. 201(d),
there was no mandatory duty imposed on the district court to take blanket judicial notice of the
requested case files.   Accordingly, Fortin has failed to show the district court abused its
discretion by denying his motion for judicial notice.
B.     Access to the Courts
       Fortin argues in his initial appellant’s brief that his constitutional right to access the
courts was violated by the district court when it failed to take the judicial notice as requested,
thereby depriving him of a record on appeal sufficient for adequate appellate review. 3 Noting
that Fortin failed to raise any such objection or allege any constitutional deprivation below, the
state argues that Fortin did not preserve the argument for appeal and failed to allege, let alone
show, fundamental error.     In his reply brief, Fortin reframed his constitutional deprivation
argument in order to allege fundamental error. At oral argument, Fortin deviated from his


3
        Fortin filed a motion with the Idaho Supreme Court seeking to augment the appellate
record for purposes of this appeal. The Court denied Fortin’s motion, reasoning that “it does not
appear that the district court took judicial notice of the underlying post-conviction case.” To the
extent Fortin alleges any error, we do not have the authority to review and, in effect, reverse an
Idaho Supreme Court decision on a motion made prior to assignment of the case to this Court on
the ground that the Supreme Court decision was contrary to the state or federal constitutions or
other law. See State v. Morgan, 153 Idaho 618, 620, 288 P.3d 835, 837 (Ct. App. 2012). Such
an undertaking would be tantamount to the Court of Appeals entertaining an appeal from an
Idaho Supreme Court decision and is beyond the purview of this Court. Id.

                                                 7
previous argument regarding the applicability of fundamental error analysis in this context.
Instead Fortin emphasized that the alleged deprivation demonstrated that the district court’s
denial of Fortin’s request for judicial notice could not constitute harmless error. Regardless of
the posture of Fortin’s constitutional deprivation argument, we hold that it is without merit.
       Given our holding that the district court did not err in denying Fortin’s motion for judicial
notice, to prevail on appeal, Fortin must demonstrate that I.R.E. 201(d) is unconstitutional or that
he was otherwise entitled to judicial notice notwithstanding the requirements of the rule. Fortin
has failed to attempt either and alleges he was denied access to the courts. It is well established
that prisoners have a constitutional right of access to the courts for purposes of directly or
collaterally challenging their convictions or sentences or the conditions of their confinement.
Lewis v. Casey, 518 U.S. 343, 350-55 (1996); Martinez v. State, 130 Idaho 530, 535, 944 P.2d
127, 132 (Ct. App. 1997); see also Bounds v. Smith, 430 U.S. 817, 821 (1977) (noting that the
right to access the courts requires prison authorities to assist inmates in preparing and filing
meaningful legal papers by providing them with adequate prison law libraries or adequate
assistance from persons trained in the law). The protection, however, requires only that an
inmate be given a reasonably adequate opportunity to present to the court his or her nonfrivolous
legal claims.   See Lewis, 518 U.S. at 351-53, 356.         It is not a guarantee of a particular
methodology to provide meaningful access to the courts but, rather, the conferral of the
capability to bring contemplated challenges relating to their convictions, sentences, and
conditions of confinement. Id. at 356-57.
       Fortin alleges the district court denied him access to the courts by refusing to take judicial
notice as he requested. Even presuming Fortin’s claim is a proper access to the courts challenge,
we note that Idaho’s Uniform Post-Conviction Procedure Act provided Fortin both the
opportunity and capability to challenge his conviction and sentence in the courts. Upon filing his
petition, Fortin had the opportunity to develop a record sufficient to support his post-conviction
claims by requesting the district court take judicial notice of specific documents or items within
the desired case files. Additionally, he or his attorney could have provided copies of the desired
documents. However, because Fortin failed to follow the requirements of I.R.E 201(d), the
district court denied Fortin’s request for judicial notice noting the need for specificity.
Thereafter, approximately twenty months passed before the district court ordered summary


                                                 8
dismissal.   Fortin, with the assistance of counsel, had more than sufficient time to file a
conforming motion requesting judicial notice of any specified document or supporting material
he desired. Fortin did not take advantage of this opportunity. Thus, it was Fortin’s own failure,
not something done by the district court, which caused his inability to establish the desired
record both for purposes below and on appeal. Accordingly, we hold that Fortin’s access to the
courts was not unduly restricted.
       Fortin also seems to imply that the state deprived him of his constitutional right of access
to the courts. Citing both statutory and decisional law, Fortin asserts that the state was required
to provide him a record, both below and on appeal, sufficient for adequate appellate review.
Idaho Code Section 19-4906 provides that, if a post-conviction petition is not accompanied by
the record of the proceedings challenged therein, the state “shall file with its answer the record or
portions thereof that are material to the questions raised in the application.” Additionally, in
Draper v. Washington, 372 U.S. 487 (1963), the Court recognized that due process protections
require a state to provide an indigent criminal defendant a record on appeal sufficient for
adequate appellate review of any errors alleged regarding the proceedings below. Id. at 495-96;
see also State v. Strand, 137 Idaho 457, 462-63, 50 P.3d 472, 477-78 (2002) (applying Draper
and holding that a criminal defendant was not denied due process of law by the Court’s refusal to
order that a transcript of a hearing be made at public expense).
       Notably, Draper and Strand dealt with the absence of a record in a criminal case. Even if
we assume without deciding that the same rationale would apply to a post-conviction case, Fortin
has not shown a statutory or constitutional violation. In this case, the state filed a motion
requesting that the district court take judicial notice of ten specific documents related to both the
underlying and separate criminal cases. The state attached all the referenced documents except
the specified transcripts, to which the record suggests the district court had access.            As
previously noted, it is implied from the record that the district court granted the state’s motion
and the documents were made part of the record. Fortin has not shown that he raised any
objection to the state’s request. Nor has Fortin demonstrated a deficiency in the state’s request,
what required items were omitted, or that the alleged omitted items were necessary for adequate
appellate review. Accordingly, we hold that Fortin has failed to show that the state violated its
duty under the either the statutory or constitutional standard.


                                                  9
C.     Ineffective Assistance of Counsel
       Fortin argues that summary dismissal of his petition was inappropriate because a genuine
issue of material fact exists with respect to his ineffective assistance of trial counsel claim arising
out of trial counsel’s advice during the plea bargaining stage of the underlying case. Fortin
alleges that the state’s plea offer provided a joint resolution of his two pending criminal cases.
He asserts that, in exchange for his guilty pleas in both cases, the state agreed to recommend a
concurrent aggregate sentence of twenty years, with a minimum period of confinement of seven
years and the dismissal of one felony charge and two weapon enhancements. Fortin contends
that his trial counsel advised him to reject the plea offer and proceed to two separate trials
without properly advising him of the potential penalties should he not prevail.
       The Sixth Amendment right to effective assistance of counsel extends to the plea
bargaining process. Missouri v. Frye, ___ U.S. ___, ___, 132 S. Ct. 1399, 1405 (2012); Hoffman
v. State, 153 Idaho 898, 907, 277 P.3d 1050, 1059 (Ct. App. 2012). A claim of ineffective
assistance of counsel may properly be brought under the Uniform Post-Conviction Procedure
Act. Murray, 121 Idaho at 924-25, 828 P.2d at 1329-30. 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). 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). To establish prejudice, the petitioner must show a reasonable probability that, but
for the attorney’s deficient performance, the outcome of the trial would have been different. Id.
at 761, 760 P.2d at 1177. 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. Howard v. State, 126 Idaho 231, 233, 880 P.2d 261, 263 (Ct. App. 1994).
       Fortin argues that counsel was deficient by failing to provide adequate information
regarding the potential consequences of rejecting the state’s plea offer and proceeding to trial.
Although the state relies, in part, on arguments raised below concerning the alleged deficiency,
on appeal the state focuses its argument on Fortin’s inability to show prejudice. Likewise, in


                                                  10
summarily dismissing Fortin’s petition, the district court did not directly address whether the
conduct of Fortin’s trial counsel was deficient and, instead, ruled based solely on prejudice.
Accordingly, and given the disposition of this case, we constrain our review to the issue of
whether Fortin has satisfied Strickland’s prejudice prong.
       Fortin argues that, despite the lack of record due to the district court’s denial of his
motion requesting judicial notice, the pleadings raise an issue of material fact that he was
prejudiced by his counsel’s failure to explain the consequences of rejecting the plea agreement.4
We note at the outset that Fortin does not specify what consequences counsel failed to advise
him about. Although Fortin references that he was convicted of additional and more serious
charges by proceeding to trial, under the circumstances of this case, such convictions cannot
serve as the basis for our prejudice analysis because Fortin was aware of the charges he faced in
both criminal cases prior to any advice from counsel. Fortin would have been aware that, if he
did not accept the plea offer, he could possibly be convicted of the additional charges at trial.
Rather, as was addressed by the district court, the relevant consequence at issue is that Fortin
potentially faced consecutively imposed sentences if he went to trial and was found guilty.
       The Supreme Court of the United States has addressed ineffective assistance of counsel
claims within the context of plea negotiations. See Lafler v. Cooper, ___, U.S. ___, 132 S. Ct.
1376 (2012); Frye, ___ U.S. ___, 132 S. Ct. 1399. In Lafler, defense counsel erroneously
advised the defendant that the prosecution could not prove a required element of the charged
offense. Lafler, ___ U.S. at___, 132 S. Ct. at 1383. The defendant rejected two plea offers and
proceeded to trial based on his counsel’s advice. He was subsequently convicted of all counts
and received a less favorable sentence than he would have under the plea offers. On appeal, the
parties conceded that defense counsel was indeed ineffective. Id. at ___, 132 S. Ct. at 1384.
Thus, the Court focused on the prejudice prong of the Strickland analysis and explained that, to
establish prejudice, the petitioner must show a reasonable probability that, but for the attorney’s
deficient performance, the outcome of the plea process would have been different with

4
         Additionally, Fortin contends that, but for the district court’s refusal to grant his request
for judicial notice, he may well have been able to make a stronger showing of prejudice based on
record, and suggests that this provides further evidence that his constitutional rights to were
violated. Based on our holding in section A, we note that any lack of record was due to Fortin’s
failure to properly create the record. Thus, we need not address this argument.

                                                 11
competent advice. Lafler, ___ U.S. at ___, 132 S. Ct. at 1384. The Court elaborated that, “if a
plea bargain has been offered, . . . prejudice can be shown if loss of the plea opportunity led to a
trial resulting in a conviction on more serious charges or the imposition of a more severe
sentence.” Id. at ___, 132 S. Ct. at 1387. Specifically, where alleged deficient advice led to the
plea offer’s rejection, the petitioner is required to show that, but for the ineffective advice of
counsel, there is a reasonable probability that: (1) the plea offer would have been presented to
the court (i.e., that the defendant would have accepted the plea and the prosecution would not
have withdrawn it in light of intervening circumstances); (2) the court would have accepted its
terms; and (3) the conviction or sentence, or both, under the offer’s terms would have been less
severe than under the judgment and sentence that in fact were imposed. Id. at ___, 132 S. Ct. at
1385. In applying this standard, the Court held that the petitioner had shown a reasonable
probability, that but for counsel’s deficient performance, he and the trial court would have
accepted the plea offer. Id. at ___, 132 S. Ct. at 1391.
        On appeal, the state does not challenge Fortin’s assertions that, but for his counsel’s
advice, he would have accepted the plea agreement and that the terms of the alleged plea
agreement were less severe than the sentence ultimately imposed. Consequently, our analysis
focuses on whether the district court would have accepted the alleged plea agreement if it had
been presented. In this regard, the Court’s opinion in Frye, ___ U.S. ___, 132 S. Ct. 1399, is
instructive.
        In Frye, the defendant entered a guilty plea without an underlying plea agreement and
later discovered that the prosecutor had made a written plea offer to defense counsel that was
more lenient than the sentence the defendant received as a result of his guilty plea. Id. at ___,
132 S. Ct. at 1404. Defense counsel never notified the defendant of the plea offer before it had
expired. The Court held that the defendant’s counsel provided ineffective assistance based on
the general rule that “defense counsel has the duty to communicate formal offers from the
prosecution to accept a plea on terms and conditions that may be favorable to the accused.” Id.
at ___, 132 S. Ct. at 1408. In its analysis, the Court echoed the three-part test for prejudice
announced in Lafler, but elaborated:
               In order to complete a showing of Strickland prejudice, defendants who
        have shown a reasonable probability they would have accepted the earlier plea
        offer must also show that, if the prosecution had the discretion to cancel it or if

                                                 12
       the trial court had the discretion to refuse to accept it, there is a reasonable
       probability neither the prosecution nor the trial court would have prevented the
       offer from being accepted or implemented. This further showing is of particular
       importance because a defendant has no right to be offered a plea, nor a federal
       right that the judge accept it. . . . It can be assumed that in most jurisdictions
       prosecutors and judges are familiar with the boundaries of acceptable plea
       bargains and sentences. So in most instances it should not be difficult to make an
       objective assessment as to whether or not a particular fact or intervening
       circumstance would suffice, in the normal course, to cause prosecutorial
       withdrawal or judicial nonapproval of a plea bargain. The determination that
       there is or is not a reasonable probability that the outcome of the proceeding
       would have been different absent counsel’s errors can be conducted within that
       framework.
Frye, ___ U.S. at ___, 132 S. Ct. at 1410 (citations omitted). Applying this standard, the Court
remanded the case instructing, in part:
       If [. . .] the prosecutor could have canceled the plea agreement, and if Frye fails to
       show a reasonable probability the prosecutor would have adhered to the
       agreement, there is no Strickland prejudice. Likewise, if the trial court could have
       refused to accept the plea agreement, and if Frye fails to show a reasonable
       probability the trial court would have accepted the plea, there is no Strickland
       prejudice.
Id. at ___, 132 S. Ct. at 1411 (emphasis added).
       In Idaho, trial courts have the freedom to accept or reject proposed plea agreements. See
I.C.R. 11; State v. Fertig, 126 Idaho 364, 366-67, 883 P.2d 722, 724-25 (Ct. App. 1994). In this
case, the district court applied the Strickland standard and dismissed Fortin’s post-conviction
petition claim of ineffective assistance of counsel regarding the plea agreement for failing to
meet the prejudice prong. In dismissing the claim, the district court reasoned:
       Even if the Court is to accept Fortin’s conclusory allegations about [his trial
       counsel’s] erroneous advice as true, Fortin cannot demonstrate any prejudice
       because Fortin cannot demonstrate that the Court would have accepted his plea as
       a binding plea agreement under I.C.R. 11. As a general practice, this Court does
       not accept binding plea agreements. As part of any plea colloquy, the Court
       routinely advise[s] a defendant that the plea bargain is not binding on the Court.
       If there was a plea agreement in the [separate] case, there is no evidence that the
       Court would not have agreed to a binding plea agreement with a concurrent
       sentence recommendation. As a consequence, Fortin cannot demonstrate any
       prejudice, since the Court would not have been bound to follow the plea
       agreement.




                                                13
Fortin argues that an issue of material fact exists because, although the district court would not
have accepted a binding plea agreement, it did not state that it would not have accepted a
nonbinding plea. Fortin’s distinction does not constitute evidence sufficient to meet his burden.
He has failed to demonstrate that it was reasonably probable that the district court would have
followed the nonbinding agreement. Neither Fortin’s assertions on appeal, nor the record before
us, adequately demonstrate that the district court would have accepted the alleged plea
agreement, let alone imposed concurrent sentences or followed any recommendation in imposing
a discretionary sentencing determination.5 Consequently, Fortin has failed to show prejudice.
Accordingly, we hold that the district court did not err in summarily dismissing Fortin’s claim
that his trial counsel was ineffective for failing to advise him that, by rejecting the State’s plea
offer, he potentially faced the imposition of consecutive sentences.
                                                  IV.
                                          CONCLUSION
       The district court did not err in denying Fortin’s motion requesting the district court take
judicial notice of both the underlying and separate criminal case files. Fortin also has failed to
show that the district court’s refusal to take judicial notice deprived him of his right to access the
courts. Finally, Fortin failed to meet his burden to show ineffective assistance of counsel.
Accordingly, the district court’s order summarily dismissing Fortin’s petition for post-conviction
relief is affirmed. No costs or attorney fees are awarded on appeal.
       Judge GUTIERREZ and Judge GRATTON, CONCUR.




5
         Fortin also argues that, if the district court had taken judicial notice of the underlying case
file as requested, it would have found that an issue of material fact concerning the plea bargain
existed. He contends that, even if the district court did not accept a binding plea agreement, it
would have made that finding based on the presentence investigation report (PSI) and other
information available to it at sentencing. However, he states that this argument is impossible to
make without the PSI and sentencing hearing transcripts in the record. Given our disposition of
the judicial notice issue, we need not address this contention. However, even if we were to do
so, this assertion does not demonstrate that the district court would have accepted the binding
agreement because it expressly noted that it does not accept binding agreements as a practice.
He has offered no other evidence suggesting that the district court in this instance would have
made an exception.

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