               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 40070

DUSTIN MARK JOHNSTON,                            )       2013 Unpublished Opinion No. 721
                                                 )
       Petitioner-Appellant,                     )       Filed: October 24, 2013
                                                 )
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STATE OF IDAHO,                                  )       THIS IS AN UNPUBLISHED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. Randy J. Stoker, District Judge.

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

       Dustin Mark Johnston, Twin Falls, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       Dustin Mark Johnston pled guilty to robbery. I.C. § 18-6501. At the time of the crime,
Johnston was sixteen years of age. The district court imposed a unified term of ten years, with a
minimum period of confinement of five years. Johnston did not appeal from the judgment of
conviction. Johnston filed a petition for post-conviction relief, which was dismissed as untimely.
Johnston then filed a successive petition for post-conviction relief which forms the basis of this
appeal. The district court issued a notice of intent to dismiss. In the notice, the court assumed
arguendo that Johnston met the requirements of I.C. § 19-4908 and addressed the merits of the
petition. 1 Johnston requested an extension of time to respond and the district court granted the
extension. Johnston failed to respond within the allotted time and the district court dismissed the
petition. Johnston appeals.


1
       For purposes of this opinion, we also assume arguendo that Johnston’s petition met the
requirements of I.C. § 19-4908.

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       A petition 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 petitioner 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). 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 I.R.C.P. 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 motion of a party or upon the court’s own initiative, if it
appears from the pleadings, depositions, answers to interrogatories, and admissions and
agreements of facts, 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.




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       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).
       Johnston argues he received ineffective assistance because his attorney failed to argue the
district court lacked jurisdiction.    Specifically, Johnston contends the district court lacked
jurisdiction to enter a judgment of conviction for robbery absent a waiver of jurisdiction from the
juvenile court (as Johnston was sixteen years old at the time of the crime).
       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.


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1995). 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). 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. Id. at 761, 760 P.2d at 1177.
       Generally, juvenile courts have exclusive, original jurisdiction over any juvenile.
I.C. § 20-505. However, there is an exception for violent juvenile offenders. I.C. § 20-509.
Idaho Code Section 20-509(1)(b) provides that any juvenile, age fourteen to eighteen, who is
alleged to have committed robbery, shall be charged, arrested and proceeded against by
complaint, indictment, or information as an adult. Because Johnston was sixteen years of age at
the time of the crime, the district court had jurisdiction and did not need a waiver of juvenile
jurisdiction. See State v. Hernandez, 133 Idaho 576, 582 n.5, 990 P.2d 742, 748 n.5 (Ct. App.
1999) (noting the state was not required to obtain a waiver of juvenile court jurisdiction before
proceeding against a seventeen-year-old in adult court on an attempted first degree murder
charge--another violent offense under I.C. § 20-509(1)). Therefore, Johnston’s claim is without
merit and he is unable to establish prejudice as required for a claim of ineffective assistance of
counsel under Strickland.      Accordingly, we affirm the district court’s order summarily
dismissing Johnston’s successive petition for post-conviction relief. No costs or attorney fees are
awarded on appeal.
       Judge LANSING and Judge GRATTON, CONCUR.




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