               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                    Docket Nos. 38543/38544

FREDY HEREDIA-JUAREZ,                             )     2012 Unpublished Opinion No. 505
                                                  )
       Petitioner-Appellant,                      )     Filed: June 5, 2012
                                                  )
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STATE OF IDAHO,                                   )     THIS IS AN UNPUBLISHED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 Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. G. Richard Bevan, District Judge.

       Judgment dismissing petition for post-conviction relief, affirmed.

       Nevin, Benjamin, McKay & Bartlett, LLP, Boise; Robin Fyffe, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Fredy Heredia-Juarez appeals from the summary dismissal of his petition for post-
conviction relief.   He asserts that the district court erroneously dismissed his claims of
ineffective assistance of trial and appellate counsel. We affirm.
                                                I.
                                        BACKGROUND
       On December 15, 2006, Heredia-Juarez and several other individuals participated in the
robbery of a credit union. According to Heredia-Juarez’s appellate brief, those individuals
included James John and Jesse Coates. Shortly thereafter, Heredia-Juarez and John became
worried that Coates would inform the police that they had been involved in the robbery of the
credit union as well as other robberies. According to the presentence investigation report,
Heredia-Juarez, James John, Micheal John, and Nicole Baker took Coates to a remote location
where Coates was fatally shot. Heredia-Juarez was charged with first degree murder, conspiracy



                                                 1
to commit murder, and three counts of robbery. Although Heredia-Juarez eventually admitted to
participating in Coates’s murder, he denied shooting him. In an apparent attempt to obtain a
favorable plea agreement, he agreed to take a polygraph examination, during which he again
denied that he shot Coates.      The results of the examination indicated that his denial was
deceptive.
       Pursuant to a plea agreement, Heredia-Juarez pleaded guilty to first degree murder and to
one count of robbery. In exchange for the guilty pleas, the State agreed to dismiss the conspiracy
charge and the two other counts of robbery. The plea agreement further stated that the “State
will cap the fixed portion of its sentencing recommendation at 35 years” and that by “accepting
this offer the defendant waives his right to any appeals, to any Rule 35 motions and agrees to
reserve only his post-conviction remedies.” Heredia-Juarez moved to withdraw his guilty plea
based on his assertion that he misunderstood the State’s sentencing recommendation. The
district court denied the motion and imposed a unified life sentence with thirty-five years fixed
for the murder charge and a concurrent unified fifteen-year sentence with five years fixed for the
robbery charge. Heredia-Juarez filed a direct appeal, which was dismissed, without opinion, by
order of the Supreme Court “based on the fact that Defendant Heredia-Juarez waived his right to
appeal and preserv[ed] only the right to pursue post-conviction remedies pursuant to the Rule 11
plea agreement he entered in the district court.”
       Heredia-Juarez filed a pro se petition for post-conviction relief and, with the assistance of
counsel, an amended petition raising seven claims of ineffective assistance of trial and appellate
counsel.     The court granted the State’s motion for summary dismissal, and Heredia-Juarez
appeals.
                                                II.
                                           ANALYSIS
       Heredia-Juarez asserts the district court erred by dismissing his petition without resolving
issues of fact regarding his claims that: (1) his trial counsel provided ineffective assistance by
failing to adequately explain the terms of his plea agreement, for convincing or coercing him into
pleading guilty, and for failing to explain that the results of the polygraph examination could be
used against him; and (2) his appellate counsel provided ineffective assistance by failing to
appeal the denial of his motion to withdraw his guilty plea.




                                                    2
       A petition for post-conviction relief under the Uniform Post Conviction Procedure Act
(UPCPA) is civil in nature. Charboneau v. State, 144 Idaho 900, 903, 174 P.3d 870, 873 (2007).
The petitioner must prove the claims upon which the petition is based by a preponderance of the
evidence. Id. Summary dismissal of an application 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) (quoting Berg v. State, 131 Idaho 517,
518, 960 P.2d 738, 739 (1998)). When the alleged facts, even if true, would not entitle the
applicant to relief, the trial court may dismiss the application without holding an evidentiary
hearing. Idaho Code § 19-4906(b), (c); Charboneau, 144 Idaho at 903, 174 P.3d at 873; Stuart v.
State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); Cooper v. State, 96 Idaho 542, 545, 531
P.2d 1187, 1190 (1975). If the petitioner’s evidence raises a genuine issue of material fact
which, if resolved in his favor, would demonstrate entitlement to relief, summary disposition is
not permissible.    Summary dismissal of an application for post-conviction relief may be
appropriate 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. Payne, 146 Idaho at 561, 199 P.3d at
136; Charboneau, 144 Idaho at 903, 174 P.3d at 873; Roman v. State, 125 Idaho 644, 647, 873
P.2d 898, 901 (Ct. App. 1994). Therefore, on review of a dismissal of a post-conviction relief
application without an evidentiary hearing, we determine whether a genuine issue of material
fact exists based on the pleadings, depositions, and admissions together with any affidavits on
file, and whether the petitioner’s allegations, if true, show a right to relief. Rhoades v. State, 148
Idaho 247, 250, 220 P.3d 1066, 1069 (2009); Charboneau, 144 Idaho at 903, 174 P.3d at 873;
Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct. App. 1993).
       Because the trial court rather than a jury will be the trier of fact in the event of an
evidentiary hearing, summary dismissal is appropriate where the evidentiary facts are not
disputed, despite the possibility of conflicting inferences to be drawn from the facts, for the court
alone will be responsible for resolving the conflict between those inferences. State v. Yakovac,
145 Idaho 437, 444, 180 P.3d 476, 483 (2008); Hayes v. State, 146 Idaho 353, 355, 195 P.3d
712, 714 (Ct. App. 2008). That is, the judge in a post-conviction action is not constrained to


                                                  3
draw inferences in favor of the party opposing the motion for summary disposition, but rather is
free to arrive at the most probable inferences to be drawn from uncontroverted evidentiary facts.
Hayes, 146 Idaho at 355, 195 P.3d at 714.
       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.
A.     Guilty Pleas
       Heredia-Juarez asserts that trial counsel was “ineffective for convincing [him] to accept
the plea agreement without ensuring that he fully understood the terms of the plea bargain.” He
presented this issue in his amended petition through two separate claims, as follows:
       [9](a). [Defense counsel] knew or should have known, that petitioner has limited
       ability to speak and read the English language. . . . That due to the above-stated
       language barrier, petitioner believed that the plea agreement into which he entered
       provided that the State of Idaho would be recommending at sentencing imposition
       of a sentence of no more than a thirty-five (35) year term. That had petitioner
       been made fully aware in Spanish of the true terms of the plea agreement,
       petitioner would not have entered into the same. . . .
               ....
       [9](c). That [defense counsel] knew of petitioner’s assertions of his innocence in
       the underlying criminal case and of petitioner’s desire to proceed with his “not
       guilty” plea and to proceed to jury trial on the charge(s). That notwithstanding
       this, said attorneys coerced petitioner into changing his plea to guilty and to
       entering into the plea agreement. That in support thereof, petitioner states and
       alleges that during the course of the change of plea hearing, said attorneys told
       petitioner what to say to the Court in response to inquiries from the Court in direct
       contravention of petitioner’s stated position to said attorneys.

       We first address the claim that counsel was ineffective for failing to explain that the State
agreed only to limit the fixed portion of its sentence recommendation to thirty-five years. At a
pretrial conference in this post-conviction case, the following exchange took place between
Heredia-Juarez’s attorney and the court:



                                                4
              COUNSEL: Your Honor, we are prepared today to withdraw certain
       claims from the amended petition in terms of the court’s consideration.
              Going to the amended petition for post-conviction relief on file in this
       case, numbered paragraph nine contains the various issues as raised by the
       defendant--or excuse me--by the petitioner.
              Petitioner today, Your Honor, will withdraw the issues set forth in
       subpart A.
              THE COURT: Regarding limited ability of counsel to speak Spanish?
              COUNSEL: Yes, Your Honor.
              THE COURT: All right.

Thus, Heredia-Juarez’s claim regarding a misunderstanding of the recommended sentence,
contained in paragraph 9(a) of his amended petition, was withdrawn by counsel, and it does not
appear that the issue was preserved for appeal. 1       Nevertheless, on appeal, Heredia-Juarez
attempts to revive the issue by inserting it into his coercion claim. Both parties address the issue
in their appellate briefs without discussing the withdrawal of the claim.
       Even assuming that the issue was preserved, it does not warrant relief because Heredia-
Juarez has not demonstrated that he was prejudiced by his attorneys’ performance. He asserts,
that he “believed that his attorney[s] had negotiated a plea bargain pursuant to which the state
would recommend no more than thirty-five years,” and that “[b]ut for [his] misunderstanding of
the plea agreement, he would not have pled guilty and would have insisted on going to trial.”
Assuming, without deciding, that counsel performed deficiently by not explaining the terms of
the prosecution’s offer, the problem was remedied by multiple in-court explanations of the
agreement made at the change of plea hearing which were translated into Spanish for Heredia-
Juarez by a court interpreter. The prosecutor explained, “the entirety of the sentence for both the
robbery and the murder will be a 35 year to life maximum recommendation.” (Emphasis added.)
The court then restated that “whether the state recommends 35 years to life on both cases to run
concurrent or some combination of less than 35 years consecutive, the most that you would be
facing, according to the state’s recommendation, would be a 35 year fixed sentence.” (Emphasis
added.) Heredia-Juarez responded, “That’s what I understand.” The court again stated, “The
state, as part of the plea agreement that we’ve talked about here, has agreed to recommend to this




1
       The issue was discussed to some extent below, however, after it was withdrawn.


                                                 5
court no more than a sentence of 35 years fixed to life. Do you understand that?” (Emphasis
added.) Heredia-Juarez responded, “yes.” Yet again, the district court stated,
              Let me talk to you again about the plea agreement in this case. The State
       of Idaho has committed to promise that they will recommend to the sentencing
       court not to impose a sentence that would require you to be incarcerated on a
       mandatory basis for more than 35 years. Do you understand that?

(emphasis added). Heredia-Juarez responded, “yes.” Furthermore, the court explained that it
was required to impose a sentence as follows:
       [W]ith regard to the murder charge, by law, the court does have to impose a life
       sentence with the minimum fixed portion of that sentence being ten years. So, in
       other words, regardless of whatever recommendations are made or whatever the
       court does, you would not be parole eligible for at least ten years on a first degree
       murder charge. Do you understand that?

(emphasis added). Heredia-Juarez responded, “yes.” The court clearly explained what was
meant by a fixed portion of a sentence, that the State would recommend no more than a thirty-
five-year fixed portion, and that the statute required a unified life sentence. See I.C. § 18-4004.
Heredia-Juarez repeatedly indicated that he understood, and that he did not have any questions.
The court’s repeated explanations of the agreed upon recommendation, which were translated
into Spanish, cured any potential prejudice that may have occurred by the attorneys’ alleged
failure to adequately explain the State’s offer. Because Heredia-Juarez could not establish
prejudice, summary dismissal of the claim was appropriate.
       Next, we turn to Heredia-Juarez’s claim that his attorneys provided ineffective counsel by
coercing him into pleading guilty. Heredia-Juarez asserts that his attorneys provided him with
specific words to use such as “aided and abetted” and “accomplice” during the entry of his guilty
plea, but he has not alleged that his admissions were untruthful. 2 Heredia-Juarez presented no


2
        At the hearing on Heredia-Juarez’s motion to withdraw his guilty plea, Heredia-Juarez
was questioned by the prosecutor about the statements he made during the entry of his guilty plea
as follows:
        Q. So when [the] judge asks you if you aided and abetted, what did you say?
        A. Yes.
        Q. Now is that true or not true?
        A. To a certain point, yes.
        Q. To a certain point, yes, you did aid and abet?
        A. Yes.
               ....

                                                6
evidence that his attorney used any sort of intimidation or other improper tactics to pressure him
into pleading guilty. Thus, the district court properly found that the claim of coercion was
entirely conclusory. Absent any showing of coercion, Heredia-Juarez’s claim is essentially that
his attorneys were ineffective for advising him to plead guilty when he had a possible defense.
Heredia-Juarez has not asserted that his attorneys’ advice was based on inadequate preparation,
ignorance of relevant law, or other shortcomings capable of objective review, thus he has not
stated a claim of ineffective assistance of counsel based on that advice. See, e.g., Dunlap v.
State, 141 Idaho 50, 60, 106 P.3d 376, 386 (2004). We agree with the district court that even if
all the facts Heredia-Juarez asserted are true, Heredia-Juarez failed to establish either deficient
performance or prejudice.
B.     Polygraph Examination Results
       Heredia-Juarez also asserts that he would not have agreed to take the polygraph if trial
counsel had explained either that the results of the polygraph exam could be used against him at
sentencing, or that “he might fail the test even if he was truthful.” The claim that counsel did not
explain the possibility of a false negative result was not raised below, therefore, we do not
address it. E.g., Bradley v. State, 151 Idaho 629, 262 P.3d 272, 277 (Ct. App. 2011) (“Generally,
issues not raised below may not be considered for the first time on appeal.”). Even if we assume




       Q. When you told the judge, after talking to [counsel] . . . “I aided and abetted, I
       was an accomplice,” was that true or not true?
       A. Yes.
       Q. So that’s true?
       A. Yes, that’s what I told the judge.
       Q. But you felt like you didn’t want to say it, say that. Is it that you wanted to
       say it in different words?
       A. Yes.
       Q. Did you feel coerced to say, “I aided and abetted, I was an accomplice?”
       A. Okay. I didn’t feel that I was threatened or anything like that, just that that’s
       what they wanted me to say. When I asked him what am I supposed to say, he
       told me to say that.
       Q. But you didn’t feel coerced?
                ....
       A. Are you trying to say coerced means threatened?
       Q. Threatened, promised, made you do something you didn’t want to do.
       A. No.


                                                 7
that counsel performed deficiently by not explaining that the results of the polygraph could be
used against Heredia-Juarez at sentencing, Heredia-Juarez has not demonstrated prejudice.
Heredia-Juarez does not dispute that, prior to the polygraph examination and in the presence of
his attorney, he was informed that anything he said could be used against him in a court of law,
and that he signed a document acknowledging his Miranda 3 rights. He has not demonstrated
how he could have been prejudiced by his attorney’s alleged failure to warn him that his
statements could be used against him when the police told him that very thing.
       Furthermore, Heredia-Juarez has not articulated how the attachment of the polygraph
examination results--which suggested that he did shoot Coates--to the presentence investigation
report affected his sentence. In his amended petition, Heredia-Juarez asserted, “the sentencing
court took into consideration the results of the polygraph examination in determining its sentence
imposed against petitioner.”     However, this is insufficient to demonstrate prejudice.        The
implication that Heredia-Juarez would have received a lesser sentence but for the sentencing
court’s use of the polygraph examination results is entirely conclusory. At sentencing, the
district court indicated that it did place some “minimal” reliance on the validity of the polygraph
results, but “[w]hether [Heredia-Juarez] pulled that trigger or whether he didn’t does not alter the
decision that I’m going to make here with regard to the ultimate sentence.” Because the facts
presented by Heredia-Juarez did not support a claim that he was prejudiced by his attorney’s
performance, the court did not err by summarily dismissing the claim.
C.     Appellate Counsel
       Finally, Heredia-Juarez asserts that the summary dismissal of his claim of ineffective
assistance of appellate counsel was erroneous. Because this claim has been repeatedly modified
and recharacterized, both in the trial court and on appeal, it is difficult for this Court to discern
even what is the alleged deficiency of appellate counsel that we are asked to address.
       Heredia-Juarez’s amended petition contained a single claim of ineffective assistance of
appellate counsel. It alleged that his appellate attorney should have raised an issue on direct
appeal based on “the State’s use (and the Court’s consideration) of the results of the . . .
polygraph examination during the course of sentencing.” At the hearing on the State’s motion



3
       See Miranda v. Arizona, 384 U.S. 436, 479 (1966).


                                                 8
for summary dismissal, however, Heredia-Juarez did not argue this claim at all. Instead, at the
outset of that hearing, Heredia-Juarez’s counsel made the following comments:
               Going to [claim] 9G, there is an error in the amended petition for post-
       conviction relief. I have discussed that error with [the prosecutor]. It accurately
       sets forth the issue for this court’s consideration but incorrectly sets forth the issue
       that was set forth in the notice of appeal that went to the Idaho Supreme Court.
               Specifically, the issue that did go up to the Supreme Court was, in fact,
       whether or not the trial court had erred in denying the defendant’s motion to set
       aside or withdraw his guilty plea. Again, I apologize for that error; but again, we
       need to make the record clear there.

Then, post-conviction counsel presented argument related to Heredia-Juarez’s direct appeal as
follows:
               Finally, Your Honor, going to the appellate issue, that is a difficult issue in
       terms of the petitioner’s position here today. It is clear, as indicated by [the
       prosecutor], that the petitioner waived his right to appeal based upon the plea
       agreement in this case as well as a recitation of the court at the time of the change
       of plea hearing. What we are asking the court to consider is whether or not it is
       reasonable and enforceable, or certainly intended by the parties, that that waiver
       of appeal rights would extend to the defendant’s right to appeal from the court’s
       denial of his motion to withdraw a guilty plea.
               ....
               And so, again, frankly, the honor--or Your Honor, excuse me--the only
       issue is to the waiver of appellate rights as to whether it was the intent of the
       parties, that it would extend to a subsequent motion by the defendant to withdraw
       his guilty plea and essentially start over, that is, rescinding the plea agreement,
       and then from that attempted rescission of the plea agreement, he attempts to
       appeal to the Idaho Supreme Court.
               That issue, I don’t think, is necessarily clear. Frankly, then, we get into
       some issues of conditional pleas under Rule 11 and things like that; but again, that
       didn’t happen here.
               Ultimately, Your Honor, and in summary, we have a petitioner-defendant
       here who really believed that he was looking at 35 years on the top end, that as
       soon as he discovered through discussions with his counsel after the change of
       plea hearing, that that was not the case, he instructed counsel to move to withdraw
       his guilty plea. [Defense counsel] took over in the case, did a nice job of arguing
       that motion to Judge Stoker. Ultimately, that was denied. The defendant
       appealed. The appeal was dismissed. And now we’re here before this court.

In this argument, counsel below never identified any allegedly deficient act or omission of
Heredia-Juarez’s appellate counsel. Rather, he appeared to be arguing that the district court
should, in substance, overrule the Idaho Supreme Court’s order dismissing the direct appeal



                                                  9
insofar as the appeal raised a claim of error in the denial of Heredia-Juarez’s motion to withdraw
his guilty plea.
        Now on appeal to this Court, Heredia-Juarez contends that he has a legitimate claim of
ineffective assistance of appellate counsel, but again never identifies the specific act or omission
of counsel that is alleged to be deficient. In a footnote in his appellant’s brief, Heredia-Juarez
disputes the representation of his attorney below that the denial of Heredia-Juarez’s motion for
withdrawal of the guilty plea was raised on direct appeal, but since this is mentioned only in a
footnote, it does not appear to be the basis of his claim of ineffective assistance of appellate
counsel. Further, the assertion that this claim of error was not raised in Heredia-Juarez’s direct
appeal is not supported by anything in the record before us.
        The only other possibly-asserted deficiency of appellate counsel that we can infer from
the appellant’s brief is drawn from the following sentence: “As reflected in the Supreme Court’s
order, appellate counsel did not oppose the motion to dismiss and the court did not consider
whether denial of the motion to withdraw guilty plea was precluded by the appeal waiver.”
However, if that is the alleged deficiency of appellate counsel that Heredia-Juarez seeks to assert
on appeal, it was neither pleaded nor argued below nor supported by any evidence in the record
on appeal. Accordingly, Heredia-Juarez has demonstrated no basis to reverse the dismissal of
any claim of ineffective assistance of appellate counsel that can be divined from the proceedings
in the trial court.
                                                III.
                                         CONCLUSION
        The district court properly dismissed Heredia-Juarez’s claims of ineffective assistance of
trial counsel because Heredia-Juarez did not demonstrate prejudice.          Any claim regarding
ineffective assistance of appellate counsel that Heredia-Juarez is now attempting to assert on
appeal was not raised in the petition or amended petition or argued to the district court, and is
unsubstantiated by any evidence. Accordingly, we affirm the summary dismissal of the petition
for post-conviction relief.
        Chief Judge GRATTON and Judge GUTIERREZ CONCUR.




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