               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 44295

TERRY LEE ASH,                                    ) 2017 Opinion No. 27
                                                  )
       Petitioner-Appellant,                      ) Filed: June 7, 2017
                                                  )
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; Deborah A. Whipple, Boise, for
       appellant. Dennis A. Benjamin argued.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent. Jessica M. Lorello argued.
                 ________________________________________________

GRATTON, Chief Judge
       Terry Lee Ash appeals from the district court’s judgment summarily dismissing his
petition for post-conviction relief. We affirm.
                                                  I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       In the underlying case, the State charged Ash with driving under the influence, Idaho
Code §§ 18-8004, 18-8005(9), and a persistent violator enhancement, I.C. § 19-2514. In the
State’s case-in-chief at trial, the prosecutor asked the arresting officer, “Now, after he performed
those FSTs and you arrested him, did he say anything about drinking any more alcohol besides
the one beer?” The officer responded, “He decided not to say anything more after that.” Trial
counsel moved for a mistrial, asserting the question and answer violated Ash’s privilege against
self-incrimination. The prosecutor opposed the motion, filing an affidavit in which she stated


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she understood how the Fifth Amendment applied to Ash’s rights, would not intentionally
attempt to violate those rights, and was trying to impeach anticipated testimony from Ash that
contradicted prior statements he made to the officer. Relying on State v. Ellington, 151 Idaho 53,
253 P.3d 727 (2011), the district court stated: “a prosecutor cannot use post-custody silence to
infer guilt in its case in chief.” The court held the prosecutor’s question and officer’s answer
constituted fundamental error, granted the motion for mistrial, and scheduled the case for a
second trial. The jury in the second trial convicted Ash of driving under the influence. Ash
appealed, and this Court affirmed his conviction.
       Ash filed a pro se petition for post-conviction relief and requested appointed counsel.
The district court appointed counsel, and counsel amended Ash’s petition. In his amended
petition, Ash asserted his trial counsel was ineffective for failing to object to his second
prosecution on double jeopardy grounds and his “rights to be free from double jeopardy . . . were
violated by the second prosecution and conviction.” Ash attached a transcript of the proceedings
in the underlying case and the prosecutor’s affidavit to his amended petition. The State moved
for summary dismissal, and Ash moved for summary judgment in response. The district court
dismissed the petition. Ash timely appeals.
                                                 II.
                                           ANALYSIS
       Ash asserts the district court erred in summarily dismissing his petition for
post-conviction relief. 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 Idaho Rule of
Civil Procedure 8(a)(1). 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

                                                 2
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 § 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
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);

                                                  3
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).
       Ash asserts the district court erred in summarily dismissing his ineffective assistance of
counsel and double jeopardy claims.
A.     Ineffective Assistance of Counsel Claim
       Ash asserts the district court erred in summarily dismissing his ineffective assistance of
counsel claim. 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). 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. Aragon, 114 Idaho at 761, 760 P.2d at 1177;
Knutsen, 144 Idaho at 442, 163 P.3d at 231. 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

                                                4
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. Lint, 145 Idaho at 477-78, 180 P.3d at 516-17.
        Ash asserts his amended petition raised a genuine issue of material fact about whether
trial counsel was ineffective for failing to object to his second prosecution on double jeopardy
grounds. Generally, a defendant’s motion for mistrial removes any double jeopardy bar to
retrial. Oregon v. Kennedy, 456 U.S. 667, 673 (1982). A narrow exception 1 to this general rule
arises when the prosecutor “intended to provoke the defendant into moving for a mistrial.” State
v. Fairchild, 121 Idaho 960, 963, 829 P.2d 550, 553 (Ct. App. 1992). “Negligence, even if gross,
is insufficient to constitute intent to provoke a mistrial.” State v. Pugsley, 128 Idaho 168, 174,
911 P.2d 761, 767 (Ct. App. 1995).
        Ash asserts a genuine issue of material fact exists about whether the prosecutor intended
to provoke him into moving for a mistrial. Therefore, he contends that summary dismissal was
inappropriate as to whether trial counsel was ineffective for failing to object to the second
prosecution on double jeopardy grounds. According to Ash, inconsistencies in the prosecutor’s
affidavit created a genuine issue of material fact about whether the prosecutor intended to
provoke him into moving for a mistrial. Ash contends the prosecutor’s “averment that she
understands the Fifth Amendment and that she did not intend to violate it cannot be true--
because she either did not understand the Amendment or she did intend to violate it, because she
did violate it.”
        The district court held there was no genuine issue of material fact about whether the
prosecutor intended to provoke Ash into moving for a mistrial and concluded, in fact, that the
prosecutor did not intend to provoke him into moving for a mistrial. The court stated:
        [T]he State’s inquiry about post-arrest silence was to influence [Ash’s] decision
        about testifying to different facts than stated by the officer. In this sense, [the
        prosecutor] certainly acted intentionally. However, there is nothing in the record
        that the State intended thereby to “provoke the defendant into calling for a
        mistrial . . .” Rather, it appears the deputy prosecutor acted upon an inadequate


1
      Referring to Oregon v. Kennedy, 456 U.S. 667 (1982), Ash refers to this exception as the
Kennedy exception.
                                                5
       understanding of the law. Therefore, double jeopardy did not attach to [Ash’s]
       case and was not a bar to subsequent prosecution. . . .
                Even if Ash’s trial counsel had objected or moved to dismiss the second
       trial, the end result would have been the same. Double jeopardy did not attach.
(quoting Pugsley, 128 Idaho at 173, 911 P.2d at 766).
       We agree. While the prosecutor’s affidavit shows she intended to inquire about Ash’s
post-arrest silence and calls into question the prosecutor’s understanding of the law, it does not
raise a genuine issue of material fact about whether the prosecutor intended to provoke Ash into
moving for a mistrial. Importantly, the State did not dispute the facts in the prosecutor’s
affidavit. Therefore, the district court was free to arrive at the most probable inferences to be
drawn from the affidavit. The district court concluded that the prosecutor “acted upon an
inadequate understanding of the law” and, therefore, did not intend to provoke Ash into moving
for a mistrial. Because the uncontroverted evidence justifies these conclusions, we refuse to
disturb them on appeal. Accordingly, a motion by Ash’s trial counsel objecting to the second
prosecution on double jeopardy grounds would have failed. Because the district court would not
have granted a motion by Ash’s trial counsel objecting to the second prosecution on double
jeopardy grounds, Ash’s claim that trial counsel should have sought such a motion fails both
prongs of the Strickland test.
B.     Double Jeopardy Claim
       Ash asserts he raised a genuine issue of material fact about whether his “rights to be free
from double jeopardy . . . were violated by the second prosecution and conviction.” Ash did not
raise this claim in his direct appeal from the underlying case. Ash asserts this claim is a direct
constitutional claim that can be raised for the first time on appeal from his post-conviction case.
       Idaho Code § 19-4901(a) sets forth the types of claims that are cognizable in
post-conviction, which include claims “[t]hat the conviction or the sentence was in violation of
the constitution of the United States or the constitution or laws of this state.”
I.C. § 19-4901(a)(1). However,
       [a]ny issue which could have been raised on direct appeal, but was not, is
       forfeited and may not be considered in post-conviction proceedings, unless it
       appears to the court, on the basis of a substantial factual showing by affidavit,
       deposition or otherwise, that the asserted basis for relief raises a substantial doubt
       about the reliability of the finding of guilt and could not, in the exercise of due
       diligence, have been presented earlier.



                                                 6
I.C. § 19-4901(b). Ash asserts I.C. § 19-4901(b) must be construed not to preclude claims
authorized by I.C. § 19-4901(a), such as direct constitutional claims.        According to Ash,
I.C. § 19-4901(b) must be limited to trial errors, and claims authorized by I.C. § 19-4901(a) can
be raised for the first time in post-conviction. 2 Thus, Ash asserts he did not waive his double
jeopardy claim by failing to raise it on direct appeal because it is a direct constitutional claim
authorized by I.C. § 19-4901(a).
        The State responds that I.C. § 19-4901(b) must be construed to place a limitation on the
remedy available under I.C. § 19-4901(a). Thus, a petitioner waives a claim authorized by
I.C. § 19-4901(a) that was not raised on direct appeal unless the claim “raises a substantial doubt
about the reliability of the finding of guilt and could not, in the exercise of due diligence, have
been presented earlier.” I.C. § 19-4901(b). The State asserts Ash did not show his double
jeopardy claim could not have been presented in his direct appeal. Thus, the State argues Ash
waived his double jeopardy claim. In reply, Ash asserts his double jeopardy claim could not
have been raised on direct appeal because it requires proof of the prosecutor’s intent, and such
proof was not in the trial record. In ruling on the double jeopardy claim, the district court
reiterated that double jeopardy did not attach. The court also held Ash had waived the issue by
failing to assert it in his direct appeal.
        We need not decide if Ash’s double jeopardy claim is cognizable in post-conviction
because we have upheld the district court’s conclusion that the prosecutor did not intend to
provoke Ash into moving for a mistrial. Thus, Ash’s double jeopardy claim fails even if it is
cognizable in post-conviction because double jeopardy did not attach. 3

2
        At oral argument, Ash asserted that Johnson v. State, ___ Idaho ___, ___ P.3d ____
(May 12, 2017) (pet. for rehr’g pending) supports this argument. However, Johnson did not
hold that Idaho Code § 19-4901(b) was inapplicable to direct constitutional violation claims.
Instead, Johnson held only that I.C. § 19-4901(b) did not bar the Eighth Amendment claim of an
illegal sentence in that case because the basis for the claim and relief requested--Miller v.
Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012)--did not exist at the time of Johnson’s direct
appeal. Johnson, ____ Idaho at _____, ____ P.3d at _____. On the other hand, in Grove v.
State, 161 Idaho 840, 851, 392 P.3d 18, 29 (Ct. App. 2017), we held that the potential remedy for
post-conviction claims grounded upon the alleged failings of counsel falls within ineffective
assistance of counsel, not direct constitutional violation. We further held that an alleged direct
constitutional violation claim that has not been shown could not have been presented on direct
appeal is subject to I.C. § 19-4901(b)’s bar. Grove, 161 Idaho 840, 851-53, 392 P.3d 18, 29-31.
3
         Ash asks this Court to adopt “the expansion of the Kennedy exception set out in United
States v. Wallach, 979 F.2d 912 (2nd Cir. 1992)” or “an even broader exception consistent with
                                                7
                                               III.
                                        CONCLUSION
       Ash has not demonstrated a genuine issue of fact that the prosecutor intended to provoke
Ash into moving for a mistrial. Thus, double jeopardy did not attach and trial counsel was not
ineffective for failing to object to Ash’s second prosecution on double jeopardy grounds. The
district court’s judgment summarily dismissing Ash’s petition for post-conviction relief is
affirmed.

       Judge GUTIERREZ and Judge HUSKEY CONCUR.




the Idaho Constitution’s greater protection against double jeopardy.” Ash urges an exception
that, instead of focusing on the prosecutor’s intent, bars “retrial on the basis of double jeopardy
when prosecutorial misconduct has so prejudiced the rights of the defendant that the only
recourse is a mistrial or reversal.” We decline to adopt a broader exception than that set out in
Kennedy because neither the United States Supreme Court nor our Supreme Court has expressed
a need for such an exception. Moreover, Idaho courts have consistently held the Idaho
Constitution’s Double Jeopardy Clause is co-extensive with the United States Constitution’s
Double Jeopardy Clause. See, e.g., Berglund v. Potlatch Corp., 129 Idaho 752, 757, 932 P.2d
875, 880 (1996); State v. Reichenberg, 128 Idaho 452, 457-58, 915 P.2d 14, 19-20 (1996); State
v. McKeeth, 136 Idaho 619, 624, 38 P.3d 1275, 1280 (Ct. App. 2001).
                                                8
