                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 44686

LAWRENCE SCOTT ANDRUS,                           )    2018 Unpublished Opinion No. 335
                                                 )
       Petitioner-Appellant,                     )    Filed: January 24, 2018
                                                 )
v.                                               )    Karel A. Lehrman, Clerk
                                                 )
STATE OF IDAHO,                                  )    THIS IS AN UNPUBLISHED
                                                 )    OPINION AND SHALL NOT
       Respondent.                               )    BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. John K. Butler, District Judge.

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

       Lawrence S. Andrus; Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Judge
       Lawrence Scott Andrus appeals from the district court’s order summarily dismissing his
petition for post-conviction relief. Andrus asserts that the district court violated his right to due
process. Because Andrus fails to provide legal authority in his argument on appeal, we affirm
the district court’s order dismissing Andrus’s petition for post-conviction relief.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       In the underlying criminal case, Andrus was charged with felony driving under the
influence of alcohol. At trial, the jury returned a guilty verdict. Andrus filed an Idaho Criminal
Rule 35 motion, which was denied by the district court. Andrus appealed and this Court
affirmed the judgment of conviction and the sentence. 1 Thereafter, Andrus filed a petition for
post-conviction relief. In response, the district court filed a notice of intent to dismiss, pursuant

1
       State v. Andrus, Docket No. 42878 (Ct. App. Jan. 14, 2016) (unpublished).


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to Idaho Code § 19-4906(b). The district court granted a motion for extension of time, but
Andrus failed to reply within the thirty-day extension. The district court dismissed Andrus’s
petition for post-conviction relief with prejudice. Andrus 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). 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 Rules 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 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

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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);
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
       Andrus asserts that the district court violated his right to due process in the handling of
this post-conviction case. However, a party waives an issue on appeal if either argument or
authority is lacking. Powell v. Sellers, 130 Idaho 122, 128, 937 P.2d 434, 440 (Ct. App. 1997).

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Idaho Appellate Rule 35(a)(6) states:        “The argument shall contain the contentions of the
appellant with respect to the issues presented on appeal, the reasons therefor, with citations to the
authorities, statutes and parts of the transcript and record relied upon.”          Although Andrus
sprinkles quotations throughout his brief, he fails to explain how the quotations constitute legal
authority or are relevant to his argument. Andrus also fails to cite to any specific pages in the
clerk’s record throughout his brief. In this case, Andrus fails to provide legal authority for his
due process claims. Andrus waives the issue of a due process violation because he offers no
legal authority to support his assertion that the district court violated his right to due process.
        We therefore determine the district court did not err when it summarily dismissed
Andrus’s petition for post-conviction relief.
                                                  IV.
                                          CONCLUSION
        Because Andrus has waived the issue of violation of his due process rights by failing to
provide legal authority in his argument on appeal, we affirm the district court’s order summarily
dismissing Andrus’s petition for post-conviction relief.
        Chief Judge GRATTON and Judge GUTIERREZ CONCUR.




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