                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 46343

 STATE OF IDAHO,                                  )
                                                  )    Filed: April 17, 2020
         Plaintiff-Respondent,                    )
                                                  )    Karel A. Lehrman, Clerk
 v.                                               )
                                                  )    THIS IS AN UNPUBLISHED
 LARRY MARVIN SEVERSON,                           )    OPINION AND SHALL NOT
                                                  )    BE CITED AS AUTHORITY
         Defendant-Appellant.                     )
                                                  )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho,
       Elmore County. Hon. Nancy Baskin, District Judge.

       Order denying leave to file successive petition for post-conviction relief, affirmed.

       Larry M. Severson, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GRATTON, Judge
       Larry M. Severson appeals from the district court’s order summarily dismissing his
successive petition for post-conviction relief. For the reasons set forth below, we affirm.
                                                  I.
                      FACTUAL AND PROCEDURAL BACKGROUND
       In 2004, a jury found Severson guilty of first degree murder and poisoning in connection
with the 2002 death of his wife. The district court sentenced Severson to life without the possibility
of parole for the murder and to a concurrent sentence of five years for the poisoning. After an
appeal, Severson’s conviction and sentence were upheld by the Idaho Supreme Court, and a
remittitur was issued on September 9, 2009. State v. Severson, 147 Idaho 694, 700-01, 215 P.3d
414, 420-21 (2009).
       In October 2009, Severson filed his first petition for post-conviction relief. The district
court denied the petition and Severson appealed. This Court reversed the district court’s order and
remanded for further proceedings. At the State’s request, the Idaho Supreme Court reviewed the

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decision, and on December 23, 2015, the Court vacated the district court’s decision and remanded
the case for further proceedings. Severson v. State, 159 Idaho 517, 363 P.3d 358 (2015) (“Severson
II”). The district court held an evidentiary hearing and dismissed the first petition. Severson
appealed and this Court affirmed in an unpublished opinion. Severson v. State, Docket No. 45780
(Ct. App. April 24, 2019). In May 2014, Severson filed his first successive petition for post-
conviction relief. He alleged that post-conviction counsel failed to raise issues related to expert
testimony. The district court declined to permit Severson to file the successive petition and
dismissed the claims. After the district court denied Severson’s motion for reconsideration, he
appealed. In an unpublished decision this Court affirmed. Severson v. State, Docket No. 42594
(Ct. App. April 11, 2016).
        In October 2016, Severson filed a motion for leave to file a second successive petition for
post-conviction relief. In his second successive petition, Severson alleged that he had discovered
new evidence regarding the effect of certain medications on female patients and asserted claims of
ineffective assistance of appellate and post-conviction counsel for failing to raise Confrontation
Clause claims, prosecutorial misconduct, improper jury instructions, and cumulative error. The
district court issued a notice of intent to dismiss and Severson filed a motion to stay pending the
outcome of Severson II. The district court denied the motion to stay and dismissed the successive
petition.
        In 2018, Severson filed a motion for leave to file his third successive petition1 for post-
conviction relief, alleging newly discovered evidence, which is the subject of this appeal (“Third
Successive Petition”). Severson claimed that recent medical literature on the drug Ambien relative
to female patients undercuts the medical testimony at trial and the reliability of the jury’s verdict.
The district court entered a notice of intent to dismiss the petition and denied Severson’s request
for counsel. It stated that Severson’s grounds for seeking a new trial were previously adjudicated
and the same issues were raised at trial. Additionally, the district court stated that Severson failed
to satisfy the requirements for a new trial; the evidence would still support the jury’s verdict; and




1
       Severson filed a motion for leave to file a successive application for a new trial. This was
construed by the district court to be his third successive petition. This motion was filed in the
underlying criminal matter and has never been litigated as a new, civil matter.


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the court would not grant leave to file a successive petition while the appeal of an earlier petition
was pending.
       The district court held a hearing on its notice of intent to dismiss. Severson argued it was
important that his case be given a new case number so he would have the opportunity to “perfect”
his petition. Without addressing the request, the district court denied the motion for leave to file a
successive petition and dismissed Severson’s successive petition. In its order, the district court
held that the issues were previously litigated in prior proceedings; Severson failed to satisfy the
elements necessary for a new trial as the evidence would not undermine the jury’s verdict; and
leave would not be granted while the prior appeal is pending. Severson then filed a motion
requesting a civil case number be assigned to the petition; the district court denied the motion.
Severson timely 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). All claims for post-conviction relief must be raised in an original,
supplemental, or amended petition. I.C. § 19-4908. An original petition must be filed within one
year from the expiration of the time for appeal, from the determination of an appeal, or from the
determination of a proceeding following an appeal, whichever is later. I.C. § 19-4902(a). If an
initial post-conviction action was timely filed, an inmate may file a subsequent petition outside of
the one-year limitation period if the court finds a ground for relief asserted which for sufficient
reason was not asserted or was inadequately raised in the original, supplemental, or amended
petition. I.C. § 19-4908; Charboneau v. State, 144 Idaho 900, 904, 174 P.3d 870, 874 (2007).
Analysis of sufficient reason permitting the filing of a successive petition includes an analysis of
whether the claims being made, which were not known when the original petition was filed, were
asserted within a reasonable period of time, once those claims were known. Charboneau, 144
Idaho at 905, 174 P.3d at 875.




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                                                 III.
                                            ANALYSIS
       The district court denied Severson’s motion for leave to file a third successive petition
because he asserted issues that were previously adjudicated, failed to satisfy the elements for a
new trial, and had an appeal pending in a prior case. Severson argues the district court erred. The
State contends that the denial order is void because the district court did not have the jurisdiction
to consider a civil motion in a criminal case and, alternatively, that the district court otherwise
correctly denied the motion. For the reasons set forth below we affirm.
A.     The District Court Had Jurisdiction to Rule on Severson’s Motion
       As an initial matter, we address the State’s argument that the district court lacked
jurisdiction to rule on Severson’s motion. “Whether a court lacks jurisdiction is a question of law
that may be raised at any time.” State v. Jones, 140 Idaho 755, 757, 101 P.3d 699, 701 (2004).
Over questions of jurisdiction we exercise free review. State v. Barros, 131 Idaho 379, 381, 957
P.2d 1095, 1097 (1998).
       Neither party contests the procedural history: the underlying judgment was entered in 2005
and affirmed on appeal in 2009. The State asserts that once the remittitur issued, the district court’s
jurisdiction expired and, specifically, that post-conviction issues may never be litigated in the
underlying criminal case. Citing State v. Jakoski, 139 Idaho 352, 355, 79 P.3d 711, 714 (2003),
the State argues that because post-conviction proceedings are civil in nature and separate from
criminal proceedings, a motion filed in a criminal case cannot be considered as a pleading
commencing civil litigation. This assertion is correct. A district court’s jurisdiction is completed
upon the entry of the judgment and sentence or its affirmance on appeal. State v. Pratt, 128 Idaho
207, 211, 912 P.2d 94, 98 (1996). Unless a statute or rule provides otherwise, the trial court’s
jurisdiction expires once the judgment becomes final, either by expiration of the time for appeal
or affirmance of the judgment on appeal. State v. McIntosh, 160 Idaho 1, 6, 368 P.3d 621, 626
(2016). On this point, the Idaho Supreme Court held in Jakoski that: “It would be too much of a
stretch to hold that a motion filed in a criminal case can be considered as a pleading commencing
civil litigation.” Jakoski, 139 Idaho at 355, 79 P.3d at 714.
       Recently, the Idaho Supreme Court revisited the issue in State v. Hooley, ____ Idaho ____,
____ P.3d ____ (March 9, 2020). In Hooley, the motion was filed in the criminal case. In
determining whether the district court erred in its construction of an ambiguous motion, which

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could have properly been construed as a criminal motion or a petition for post-conviction relief,
the Court stated:
       [T]he issue in this case arises at the juncture before a filing occurs in either the
       underlying criminal case or a post-conviction proceeding. Those proceedings are
       like parallel railroad tracks. Jakoski stresses that once a filing is placed on the
       criminal track, no switch exists to transfer it to the post-conviction track. Thus, the
       party seeking relief must make clear its intent to place the issue on one track to the
       exclusion of the other. Here, because Hooley’s filing presented an issue that could
       be set on either track, Hooley was required to sufficiently indicate to the district
       court that his filing should be placed on the post-conviction track.
                ....
                As filed, Hooley’s submission failed to demonstrate the clear intent to file
       a petition for post-conviction relief.
Id. at ____, ____ P.3d at ____ (emphasis added). The reasoning in Hooley indicates Jakoski
applies when a filing is intentionally placed on the “criminal track.” In other words, a filing cannot
intentionally be filed in the underlying criminal matter with the intent of litigating a civil matter.
However, under the circumstances of this case, while Severson did file his motion with the criminal
case number, his intent was clear; the pleading identified he was seeking to file a petition for post-
conviction relief and asked repeatedly that the case be given a civil case number. As required by
Hooley, Severson made clear his intent to place his issue on the civil track as opposed to the
criminal one.       It appears the district court adhered to the substance-over-form approach
acknowledged in Dionne v. State, 93 Idaho 235, 237, 459 P.2d 1017, 1019 (1969), treating the
motion as a successive petition for post-conviction relief. As acknowledged by Hooley, a district
court may properly treat a filing as a petition for post-conviction relief when the petitioner clearly
states the intent to do so. Accordingly, Severson did not file a criminal motion which commenced
a civil proceeding, he filed a motion which the district court, per his request, properly construed
as a petition for post-conviction relief, even though the district court did not direct that the motion
be given a civil case number. For these reasons, we cannot say the district court lacked jurisdiction
to consider Severson’s motion.
B.     The District Court Did Not Err by Denying Severson’s Third Successive Petition for
       Post-Conviction Relief
       1.       Severson failed to challenge the alternative bases for denial of the motion
       The district court determined Severson’s third successive petition for post-conviction relief
had not raised any new issues not previously litigated and failed to establish each element of the
standard under which requests for new trials are evaluated. Additionally, the district court refused

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to grant the motion while a prior appeal was pending. In his opening brief on appeal, Severson:
(1) argues that at the time of his trial certain dangers and lethality of sleep-aid medications with
females was not as well known, (2) points to the literature and physician letter he submitted, and
(3) claims that the district court erred in failing to find a genuine issue of material fact as to whether
his wife accidently died from an overdose. Severson does not address the district court’s holding
that the issue has already been litigated or that a successive petition is inappropriate while a prior
petition remained pending on appeal. We, therefore, affirm on these alternative grounds.
        As to the issue having been previously litigated, the district court noted that the issue of
the role of medications in Mrs. Severson’s death was litigated at trial, on direct appeal, and the
first petition for post-conviction relief. The district court stated:
        Petitioner currently argues that there is n[e]w evidence that shows that
        Ms. Severson may have died from an accidental Ambien overdose. Petitioner’s
        assertion that he is entitled to a new trial based on newly-discovered evidence
        supporting the same theory of the case takes an overly narrow view of what
        constitutes previously litigated issue for the purposes of post-conviction relief.
        Such an interpretation is inconsistent with the Supreme Court’s ruling in
        Charboneau, which was clear that an issue or theory that has been argued in earlier
        proceedings is considered to have been litigated, and is thus barred from subsequent
        proceedings. Therefore, as explained in the Court’s Notice of Intent to Dismiss,
        because Petitioner has previously argued that evidence suggests the substances
        found in Ms. Severson’s body might have caused her accidental death, Petitioner is
        not entitled to file a successive petition for post-conviction relief based on the same
        issue.
As to the pendency of the prior appeal, the district court stated that the pending appeal could moot
the presently advanced claims, and that judicial economy would not be served by allowing another
successive petition.
        An appellant’s failure to address an independent ground for a summary dismissal is fatal
to the appeal. Weisel v. Beaver Springs Owners Ass’n, Inc., 152 Idaho 519, 525, 272 P.3d 491,
497 (2012). The fact that one of the grounds may be in error is of no consequence and may be
disregarded if the judgment is sustained upon one of the other grounds. AED, Inc. v. KDC
Investments, LLC, 155 Idaho 159, 164, 307 P.3d 176, 181 (2013). Thus, if an appellant fails to
contest all of the grounds upon which a district court based its grant of summary dismissal, the
judgment must be affirmed. Id. Because Severson fails to address all the grounds upon which the
district court based its order, we affirm the order.



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        2.      Severson failed to satisfy the element necessary for a new trial
        Even if we review the district court’s holding that Severson failed to satisfy the elements
necessary for a new trial, Severson has shown no error. Severson claims he should be entitled to
a new trial because he discovered new evidence addressing the medical community’s current
understanding of the side effects and proper dosages of Ambien, especially for females, which has
evolved since his trial in 2004. He claims that the current evidence indicates that the medical
testimony at trial was not accurate and the jury’s verdict is not reliable. On the other hand, the
district court concluded that:
                In addition, Petitioner argues that if he were allowed to proceed with his
        new evidence, “a jury would be faced with competing medical opinions in
        determining whether there is a reasonable doubt as to guilt.” Pet.’s Mem. at 9.
        However, that was also the case at Petitioner’s trial, and was addressed on appeal.
        As explained above, the Supreme Court noted that the evidence supported both
        possible causes of Mary’s death, and the inability to deﬁnitively eliminate one did
        [not] preclude the jury from convicting Petitioner. Id. The Court also found that
        there was substantial circumstantial evidence linking Petitioner to Mary’s death,
        including a motive and opportunity, another recent poisoning attempt, and
        Petitioner’s efforts to prepare people for her death and conceal the circumstances
        surrounding her death. Id. at 714, 215 P.3d at 434. Therefore, even excluding the
        allegedly outdated medical testimony, sufficient evidence existed for a jury to
        convict Petitioner, and for the Supreme Court to affirm that verdict on appeal. As
        a result, the Court cannot conclude that new evidence that is consistent with the
        evidence already admitted at trial is likely to lead to Petitioner’s acquittal at a new
        trial.
        “The request for a new trial in a post-conviction proceeding based on newly discovered
evidence is the same as a motion for new trial subsequent to a jury verdict.” Johnson v. State, 156
Idaho 7, 12, 319 P.3d 491, 496 (2014). Thus, Petitioner must establish:
        (1) that the evidence is newly discovered and was unknown to the defendant at the
        time of trial; (2) that the evidence is material, not merely cumulative or impeaching;
        (3) that it will probably produce an acquittal; and (4) that the failure to learn of the
        evidence was due to no lack of diligence on the part of the defendant.

Id. “Whether a fact is material is determined by its relationship to the legal theories presented by
the parties.” Id.
        The district court concluded that the new evidence would not likely produce an acquittal
and, therefore, Severson’s claims do not satisfy the elements necessary for a new trial. We agree.
Severson has failed to show that the district court erred in denying his motion to file a successive
petition.

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                                               IV.
                                        CONCLUSION
       Because the district court did not lack jurisdiction, we hold it properly denied Severson’s
order, which was construed as a third successive petition for post-conviction relief. Because
Severson failed to assign error to all the district court’s determinations on appeal and because
Severson’s claims fail to show a basis for a new trial, we affirm the dismissal of his petition for
post-conviction relief.
       Judge BRAILSFORD and Judge Pro Tem MELANSON CONCUR.




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