               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 46460

MITCHELL JAMES PONTING,                           )
                                                  )    Filed: February 19, 2020
       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                                                  )    THIS IS AN UNPUBLISHED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. Lynn G. Norton, District Judge.

       Order dismissing petition for post-conviction relief, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Maya P. Waldron, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jeffery D. Nye, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

BRAILSFORD, Judge
       Mitchell James Ponting appeals from the district court’s summary dismissal of his
petition for post-conviction relief. We affirm.
                                                  I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       After officers found a syringe of heroin in a bag in Ponting’s car, the State charged
Ponting with two counts of possession of a controlled substance, Idaho Code § 37-2732(c)(1),
and one count of possession of drug paraphernalia, I.C. § 37-2734A(1). Ponting entered into a
plea agreement in which he agreed to plead guilty to one count of possession of a controlled
substance. In exchange, the State agreed to dismiss the remaining charges, to recommend a
sentence of four years with one year determinate, and not to pursue a persistent violator
enhancement. The district court imposed the recommended sentence.

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         Thereafter, Ponting filed a petition for post-conviction relief and subsequently an
amended petition asserting several claims of ineffective assistance of counsel. At issue in this
appeal is Ponting’s claim that his counsel failed to have the syringe and the bag tested for DNA
or fingerprints. 1 In his amended petition, Ponting alleged that he asked his counsel to have the
syringe and the bag tested for fingerprints and DNA; such testing would have shown Ponting’s
fingerprints and DNA were not on the syringe and the bag; the absence of such evidence or the
presence of someone else’s fingerprints and DNA would have been exculpatory; and if his
counsel had tested the syringe and the bag, Ponting would not have pled guilty but rather
proceeded to trial.
         The State filed a motion for summary dismissal of this claim, arguing Ponting failed to
show a genuine issue of material fact that the lack of testing prejudiced him. The district court
summarily dismissed Ponting’s claim by concluding he “failed to show he would not have plead
guilty had trial counsel tested the evidence and, therefore, has failed to show prejudice.” Ponting
timely appeals, arguing he did not receive notice of the reason for the court’s dismissal of his
claim.
                                                II.
                                           ANALYSIS
         At issue on appeal is whether Ponting was given the required notice and opportunity to
respond to its reason for summarily dismissing his claim that his counsel was ineffective for
failing to test the bag and the syringe for fingerprints and DNA. To prevail on an ineffective
assistance of counsel claim, the petitioner must show both 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). To establish prejudice, the petitioner must show a reasonable probability that,



1
        Both in his amended petition and on appeal, Ponting characterizes his counsel’s failure to
test the syringe as separate from his failure to test the bag and refers to them as two “claims.”
The analysis, however, is the same for both claims. For ease of analysis, this Court refers to the
claims as a singular claim.
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but for the attorney’s deficient performance, the outcome of the trial would have been different.
Aragon, 114 Idaho at 761, 760 P.2d at 1177; Knutsen, 144 Idaho at 442, 163 P.3d at 231.
       The district court dismissed Ponting’s claim under the prejudice prong of Strickland. In
support of its summary dismissal, the district court noted that Ponting acknowledged during the
guilty plea proceedings that there was nothing he had requested his counsel to do which his
counsel had failed to do and that Ponting admitted he knew there was heroin in his car. Based on
this admission, the court concluded “whether [Ponting’s] fingerprints or DNA were on the bag or
syringe is immaterial,” and it ruled that “based on the record, the Court finds [Ponting] has failed
to show he would not have plead guilty had trial counsel tested the evidence and, therefore, has
failed to show prejudice.”
       Ponting asserts he “did not have notice and opportunity to respond to the court’s stated
reasons” for dismissing his claim. In support, Ponting argues the district court found he failed to
show prejudice “for different reasons” than the State argued in support of its motion for
summary judgment. We disagree that Ponting did not have notice of the basis for the court’s
dismissal of his claim.
       As the Idaho Supreme Court has noted:
               The district court cannot dismiss claims on its own motion if it does not
       give the parties twenty-day prior notice stating its reasons for doing so as required
       by Idaho Code § 19-4906(b). Likewise, if the State moves to dismiss a petition
       under Idaho Code § 19-4906(c), the court cannot dismiss a claim on a ground not
       asserted by the State in its motion unless the court gives the twenty-day notice
       required by Section 19-4906(b).
DeRushé v. State, 146 Idaho 599, 602, 200 P.3d 1148, 1151 (2009) (citations omitted); see also
Kelly v. State, 149 Idaho 517, 523, 236 P.3d 1277, 1283 (2010).
       The notice requirement under I.C. § 19-4906 is met if a petitioner cannot assert surprise
or prejudice.   DeRushé, 146 Idaho at 601, 200 P.3d at 1150.           Because a post-conviction
proceeding is governed by the Idaho Rules of Civil Procedure, a motion for summary dismissal
must state the grounds for dismissal with particularity under Idaho Rule of Civil
Procedure 7(b)(1). DeRushé, 146 Idaho at 601, 200 P.3d at 1150. Reasonable particularity
requires only pointing out the absence of admissible evidence of an essential element. Id. at 601-
02, 200 P.3d at 1150-51. Reasonable particularity does not require the State to explain for the
petitioner what further evidence is necessary to substantiate the petitioner’s claim. Id. at 602,
200 P.3d at 1151.

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       The notice requirement under I.C. § 19-4906 is met if a district court summarily
dismisses a petition for post-conviction relief based in part on the State’s arguments. Kelly, 149
Idaho at 523, 236 P.3d at 1283. In Kelly, the State moved for summary dismissal, arguing the
petitioner had “no evidentiary basis to support his claims.” Id. While the district court analyzed
the petitioner’s claims on separate grounds than those the State asserted in its motion, the court
ultimately concluded “Kelly’s petition for post-conviction relief [failed] because his affidavits
[did] not contain admissible facts to support his allegations of ineffective assistance of counsel.”
Id. (quotations omitted). As a result, the Idaho Supreme Court held that “it is clear that the
district court’s dismissal of Kelly’s [petition] for post-conviction relief was based at least
partially on the grounds that the State argued.” Id. Accordingly, the notice requirement under
I.C. § 19-4906 was met in Kelly.
        As in Kelly, Ponting had adequate notice he lacked admissible evidence of an essential
element--prejudice--to support his claim for ineffective assistance of counsel. In support of its
motion, the State argued Ponting “failed to raise a genuine issue of material fact that he would
not have pled guilty if the syringe or bag were tested.” The State reasoned Ponting could not be
prejudiced by the absence of fingerprint or DNA evidence. As the State noted in its reply, this
argument challenged Ponting’s lack of evidence of prejudice. 2
       The district court dismissed Ponting’s claim--at least in part--on the same basis, namely
that Ponting failed to raise a genuine issue of material fact regarding prejudice. Specifically, the
district court ruled Ponting “failed to show he would not have plead guilty had trial counsel
tested the evidence and, therefore, . . . failed to show prejudice.” The district court reasoned that
whether Ponting’s fingerprints or DNA were on the bag or the syringe was immaterial because
Ponting admitted to knowing there was heroin in his car. In other words, the district court
concluded that neither the absence of Ponting’s fingerprints or DNA nor the presence of others’
provided Ponting a viable defense because he admitted he knew the heroin was in his car. See,




2
        In support of his petition and in response to the State’s motion for summary judgment,
Ponting alleged he would not have pled guilty if his counsel had tested the syringe and the bag.
As the Idaho Supreme Court has held, however, such an assertion is insufficient to withstand
summary dismissal. Ridgley v. State, 148 Idaho 671, 677, 227 P.3d 925, 931 (2010). Rather, a
petitioner must draw a causal connection between his counsel’s alleged deficiency and the
petitioner’s decision to plead guilty. Id.
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e.g., State v. Blake, 133 Idaho 237, 242, 985 P.2d 117, 122 (1999) (noting State may prove
possession by constructive possession which may be either joint or exclusive).
       That the district court’s explanation of why Ponting could not show prejudice was
somewhat different than the State’s reasoning does not mean, as Ponting argues, that he did not
receive notice of the basis for the court’s dismissal of his claim. As in Kelly, the State argued
Ponting failed to establish a genuine issue of material fact of prejudice and the court dismissed
his claim for this failure. As a result, Ponting had advance notice as required by I.C. § 19-4906
of the basis for the court’s dismissal.
                                              III.
                                          CONCLUSION
       Based on the foregoing, we affirm the summary dismissal of Ponting’s petition for post-
conviction relief.
       Chief Judge HUSKEY and Judge GRATTON CONCUR.




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