                 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 37915

TONY STOKES,                                      )     2011 Unpublished Opinion No. 750
                                                  )
         Petitioner-Appellant,                    )     Filed: December 20, 2011
                                                  )
v.                                                )     Stephen W. Kenyon, Clerk
                                                  )
STATE OF IDAHO,                                   )     THIS IS AN UNPUBLISHED
                                                  )     OPINION AND SHALL NOT
         Respondent.                              )     BE CITED AS AUTHORITY
                                                  )

         Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
         County. Hon. Ronald J. Wilper, District Judge.

         Order summarily dismissing application for post-conviction relief, affirmed.

         Tony Stokes, Boise, pro se appellant.

         Hon. Lawrence G. Wasden, Attorney General; Elizabeth A. Koeckeritz, Deputy
         Attorney General, Boise, for respondent.
                   ________________________________________________
WALTERS, Judge Pro Tem
         Tony Stokes appeals from the district court’s order summarily dismissing his application
for post-conviction relief. For the reasons set forth below, we affirm.
                                                 I.
                                   FACTS AND PROCEDURE
         Tony Stokes was indicted by a grand jury for one count of lewd conduct with a minor
under sixteen and two counts of sexual abuse of a child under sixteen. Pursuant to a plea
agreement, Stokes pled guilty to sexual abuse of a child under sixteen, I.C. § 18-1506, and was
sentenced to a unified term of fifteen years, with a minimum period of confinement of three
years.
         Stokes filed an Idaho Criminal Rule 35 motion for reduction of his sentence, which the
district court denied. Stokes appealed, contending that the district abused its discretion by
imposing an excessive sentence and by denying his Rule 35 motion. While his case was pending
on appeal, the state filed a motion for remand and statement in support thereof in order for


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Stokes to be re-sentenced before a different judge. The Idaho Supreme Court granted the motion
and the case was remanded. The district court issued an amended judgment of conviction and
Stokes again was sentenced to a unified term of fifteen years, with a minimum period of
confinement of three years. Stokes filed a Rule 35 motion for reduction of sentence, which the
district court denied. Stokes again appealed and this Court affirmed in an unpublished opinion.
State v. Stokes, Docket No. 33337 (Ct. App. Apr. 11, 2008).
       Subsequently, Stokes filed a pro se application for post-conviction relief. The district
court appointed counsel, who filed an amended application. In his amended application, Stokes
asserted that the district court erred in not sua sponte ordering a psychological evaluation and
that he received ineffective assistance of counsel because his attorney failed to request a
psychological evaluation prior to sentencing. Stokes also alleged that his guilty plea was coerced
and that, despite being informed of the coercive guilty plea, the district court failed to question
him about whether he wished to withdraw his guilty plea prior to sentencing. The state filed a
motion for summary dismissal. At the summary dismissal hearing, Stokes’s counsel withdrew
the coercive guilty plea claims which had been alleged in the amended application. The district
court granted the state’s motion for summary dismissal. Stokes appeals.
                                                II.
                                   STANDARD OF REVIEW
       An application for post-conviction relief initiates a proceeding that is civil in nature.
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 applicant must prove by a
preponderance of evidence the allegations upon which the request for post-conviction relief is
based. I.C. § 19-4907; Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002).
An application 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). An application 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). Rather, an application for post-conviction relief must be verified with respect to
facts within the personal knowledge of the applicant, and affidavits, records or other evidence
supporting its allegations must be attached or the application must state why such supporting
evidence is not included with the application. I.C. § 19-4903. In other words, the application


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must present or be accompanied by admissible evidence supporting its allegations, or the
application will be subject to dismissal.
        Idaho Code Section 19-4906 authorizes summary dismissal of an application for post-
conviction relief, either pursuant to motion of a party or upon the court’s own initiative.
Summary dismissal of an application pursuant to I.C. § 19-4906 is the procedural equivalent of
summary judgment under I.R.C.P. 56. A claim for post-conviction relief will be subject to
summary dismissal if the applicant has not presented evidence making a prima facie case as to
each essential element of the claims upon which the applicant bears the burden of proof.
DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary dismissal is
permissible when the applicant’s evidence has raised no genuine issue of material fact that, if
resolved in the applicant’s favor, would entitle the applicant to the requested relief. If such a
factual issue is presented, an evidentiary hearing must be conducted. Goodwin, 138 Idaho at
272, 61 P.3d at 629. Summary dismissal of an application for post-conviction relief may be
appropriate, however, even where the state does not controvert the applicant’s evidence because
the court is not required to accept either the applicant’s mere conclusory allegations, unsupported
by admissible evidence, or the applicant’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).
        On review of a dismissal of a post-conviction relief application without an evidentiary
hearing, we determine whether a genuine issue of fact exists based on the pleadings, depositions,
and admissions together with any affidavits on file. Rhoades, 148 Idaho at 250, 220 P.3d at
1069; Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct. App. 1993). In post-conviction
actions, 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).
                                                  III.
                                             ANALYSIS
        Stokes argues that the district court erred in denying his application for post-conviction
relief because he was innocent, he was subjected to violations of the confrontation clause, the
state waived its defenses, and he was prejudiced in getting redress on his claims. These claims


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were not contained in Stokes’s amended application and are raised for the first time on appeal.
Generally, issues not raised below may not be considered for the first time on appeal. State v.
Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Grounds for post-conviction relief not
asserted in the district court will not be addressed on appeal. See Small v. State, 132 Idaho 327,
331, 971 P.2d 1151, 1155 (Ct. App. 1998). We, therefore, decline to address these issues on
appeal from the summary dismissal of Stokes’s application.
          Stokes also argues that the district court erred in denying his application for post-
conviction relief because it did not provide sufficient notice of its intent to dismiss. Idaho Code
Sections 19-4906(b) and (c) provide that notice must be given to an applicant prior to summary
dismissal of an application for post-conviction relief. The notice procedures contained in I.C. §
19-4906(b) and (c) provide an applicant an opportunity to respond to a motion for summary
dismissal and to establish a material issue of fact if one exists. Flores v. State, 128 Idaho 476,
478, 915 P.2d 38, 40 (Ct. App. 1996). Pursuant to I.C. § 19-4906(b), the district court may sua
sponte dismiss an applicant’s post-conviction claims if the court provides the applicant with
notice of its intent to do so, the ground or grounds upon which the claim is to be dismissed, and
twenty days for the applicant to respond. Pursuant to I.C. § 19-4906(c), the district court may
dismiss an applicant’s post-conviction claims on the motion of either party. If the state files and
serves a properly supported motion to dismiss, further notice from the court is ordinarily
unnecessary. Martinez v. State, 126 Idaho 813, 817, 892 P.2d 488, 492 (Ct. App. 1995). The
reason that subsection (b), but not subsection (c), requires a twenty-day notice by the court of
intent to dismiss is that, under subsection (c), the “motion itself serves as notice that summary
dismissal is being sought.” Saykhamchone v. State, 127 Idaho 319, 322, 900 P.2d 795, 798
(1995).
          Stokes apparently argues that the district court erred in dismissing his application for
post-conviction relief without providing twenty days’ notice pursuant to I.C. § 19-4906(b).
Stokes appears to assert that, because the district court dismissed his application for post-
conviction relief on grounds different than those asserted by the state, the district court was
required, pursuant to I.C. § 19-4906(b), to provide him with twenty days’ notice. Where “the
state has filed a motion for summary disposition, but the court dismisses the application on
grounds different from those asserted in the state’s motion, it does so on its own initiative and the
court must provide twenty days’ notice.” Saykhamchone, 127 Idaho at 322, 900 P.2d at 798. If


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the district court dismisses on grounds not contained in the state’s motion, the applicant has no
opportunity to respond and attempt to establish a material issue of fact. See Baxter v. State, 149
Idaho 859, 865, 243 P.3d 675, 681 (Ct. App. 2010).
       The Idaho Supreme Court recently held that, when a district court summarily dismisses a
post-conviction application relying in part on the same grounds presented by the state in its
motion for summary dismissal, the notice requirement has been met. Kelly v. State, 149 Idaho
517, 523, 236 P.3d 1277, 1283 (2010). Kelly argued that the district court erred in dismissing his
application for post-conviction relief because the state’s motion for summary dismissal contained
no notice of the grounds on which his claim was dismissed and the district court dismissed
several of his claims on grounds entirely different than the grounds argued by the state. The
state’s motion sought dismissal on the grounds that there was no evidentiary basis to support
Kelly’s claims and the state supported its conclusion citing extensively from Idaho law. Id. at
522, 236 P.3d at 1282. The district court dismissed Kelly’s claims on the ground that Kelly did
not provide facts sufficient to support his claims. On appeal, the Idaho Supreme Court held that
Kelly was afforded sufficient notice because, when a trial court summarily dismisses an
application for post-conviction relief based in part on the arguments presented by the state, the
notice requirements of I.C. § 19-4906(b) are satisfied. Id. at 523, 236 P.3d at 1283.
       Here, the state moved for dismissal of Stokes’s claim that the district court erred by
failing to request a psychological evaluation because Stokes should have raised the claim on
direct appeal but did not. The state moved for dismissal of Stokes’s claim that his counsel was
ineffective for failing to requests a psychological evaluation because Stokes failed to present a
genuine issue of material fact with regard to the claim. The district court dismissed Stokes’s
claim regarding the court’s failure to sua sponte order a psychological evaluation because Stokes
failed to raise the issue on direct appeal. The district court dismissed Stokes’s ineffective
assistance of counsel claim because Stokes failed to show that a psychological evaluation would
have affected his sentence.     Thus, the record demonstrates that the district court based its
dismissal on the same grounds as those set forth by the state’s motion for summary dismissal.
Therefore, we hold that the district court did not err in failing to give Stokes twenty days’ notice
of its intent to dismiss his post-conviction claims.
       Stokes also argues that the district court erred in dismissing his application for post-
conviction relief without conducting an evidentiary hearing.         The district court dismissed


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Stokes’s claim that the district court erred in not sua sponte ordering a psychological evaluation
because the issue could have been raised on direct appeal, but Stokes failed to do so. The scope
of post-conviction relief is limited. Rodgers v. State, 129 Idaho 720, 725, 932 P.2d 348, 353
(1997). An application for post-conviction relief is not a substitute for an appeal. I.C. § 19-
4901(b). A claim or issue which was or could have been raised on appeal may not be considered
in post-conviction proceedings. Id.; Whitehawk v. State, 116 Idaho 831, 832-33, 780 P.2d 153,
154-55 (Ct. App. 1989). The record demonstrates that Stokes could have raised this issue on
direct appeal but failed to do so. Therefore, we hold the district court did not err in summarily
dismissing this claim without conducting an evidentiary hearing.
       The district court dismissed Stokes’s ineffective assistance of counsel claim because
Stokes failed to demonstrate that the information contained in a psychological evaluation would
have altered his sentence. A claim of ineffective assistance of counsel may properly be brought
under the 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 defendant must show that the
attorney’s performance was deficient and that the defendant 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 applicant 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
applicant 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). The record demonstrates that Stokes’s
amended application simply alleged his counsel was ineffective without asserting any material
facts which demonstrated he was prejudiced. Stokes did not present any facts which would
support the conclusion that his counsel’s failure to request a psychological evaluation affected
his sentence. Therefore, we hold the district court did not err in summarily dismissing this claim
without conducting an evidentiary hearing. The remaining claims found in Stokes’s amended
application were waived at the summary dismissal hearing.


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                                               III.
                                        CONCLUSION
          The district court did not err in summarily dismissing Stokes’s application for post-
conviction relief without providing twenty days’ notice because the district court based its
dismissal on the grounds set forth by the state in its motion for summary dismissal. In addition,
the district court did not err in summarily dismissing Stokes’s application without conducting an
evidentiary hearing.    Accordingly, the district court’s order summarily dismissing Stokes’s
application for post-conviction relief is affirmed. No costs or attorney fees are awarded on
appeal.
          Judge LANSING and Judge GUTIERREZ, CONCUR.




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