               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 37819

DANA LYDELL SMITH,                               )     2011 Unpublished Opinion No. 699
                                                 )
       Petitioner-Appellant,                     )     Filed: November 14, 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STATE OF IDAHO,                                  )     THIS IS AN UNPUBLISHED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 Fifth Judicial District, State of Idaho,
       Minidoka County. Hon. Michael R. Crabtree, District Judge.

       Order dismissing application for post-conviction relief, affirmed

       Molly J. Huskey, State Appellate Public Defender; Diane M. Walker, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Chief Judge
       Dana Lydell Smith appeals from the district court’s summary dismissal of his application
for post-conviction relief. We affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Smith was convicted of grand theft for breaking into a car dealership and stealing two
cars. He appealed and in an unpublished decision, this Court affirmed his conviction. State v.
Smith, Docket Nos. 35216/35604 (Ct. App. May 20, 2009) (unpublished). After his direct
appeal, Smith filed an application for post-conviction relief, asserting several claims of
ineffective assistance of counsel. The State filed a motion for summary dismissal, which the
district court granted. Smith appeals.




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                                                II.
                                            ANALYSIS
        An application for post-conviction relief initiates a civil, rather than criminal,
proceeding, governed by the Idaho Rules of Civil Procedure. State v. Yakovac, 145 Idaho 437,
443, 180 P.3d 476, 482 (2008); see also Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642, 646
(2008). Like the 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; Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); 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) (quoting Goodwin, 138 Idaho at 271, 61 P.3d at 628)). The 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). State v. Payne, 146 Idaho 548, 560, 199 P.3d 123, 135 (2008);
Goodwin, 138 Idaho at 271, 61 P.3d at 628. The application 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
must present or be accompanied by admissible evidence supporting its allegations, or the
application will be subject to dismissal.
       Idaho Code § 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 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)). 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. Payne, 146 Idaho at 561, 199 P.3d at 136; Goodwin, 138 Idaho at 272, 61 P.3d at
629.   Summary dismissal of an application for post-conviction relief may be appropriate,


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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. Payne, 146 Idaho at 561, 199 P.3d at
136; Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994).
       “When reviewing a district court’s order of summary dismissal in a post-conviction relief
proceeding, we apply the same standard as that applied by the district court.” Ridgley v. State,
148 Idaho 671, 675, 227 P.3d 925, 929 (2010). On review of 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. Rhoades v. State, 148 Idaho 247, 220 P.3d 1066 (2009); Ricca v. State, 124
Idaho 894, 896, 865 P.2d 985, 987 (Ct. App. 1993). However, “while the underlying facts must
be regarded as true, the petitioner’s conclusions need not be so accepted.” Rhoades, 148 Idaho at
250, 220 P.3d at 1069 (quoting Phillips v. State, 108 Idaho 405, 407, 700 P.2d 27, 29 (1985));
see also Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). As 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. Yakovac, 145 Idaho at 444, 180 P.3d at 483;
Hayes, 146 Idaho at 355, 195 P.3d at 714. That is, the judge in a post-conviction action is not
constrained to 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. Id.
       Smith raises several issues in his application for post-conviction relief, all based upon
assertions of ineffective assistance of counsel. A claim of ineffective assistance of counsel may
properly be brought under the Uniform Post-Conviction Procedure Act. Murray v. State, 121
Idaho 918, 924-25, 828 P.2d 1323, 1329-30 (Ct. App. 1992). 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


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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).
       Smith claims that he presented enough evidence to create a genuine issue of material fact
as to whether he received ineffective assistance of counsel because his attorney: (1) failed to file
a motion to suppress two witness identifications; (2) failed to secure an expert witness to provide
expert opinion regarding his mental impairment; (3) failed to file a motion to suppress Smith’s
statements to Utah law enforcement officials; and (4) failed to file a motion for a mistrial. He
further claims that a genuine issue of material fact exists as to whether he received ineffective
assistance of counsel because his attorney had a conflict of interest. Therefore, Smith argues the
district court erred when it summarily dismissed Smith’s application.
A.     Ineffective Assistance of Counsel--Failure to File Motion to Suppress Witness
       Identifications

       Smith contends that he presented evidence sufficient to raise a genuine issue of material
fact as to whether he received ineffective assistance of counsel when his attorney failed to file a
pretrial motion to suppress witness identifications presented at trial. The State argues that he
failed to present any admissible evidence supporting his claim. Smith’s argument fails because
he failed to provide evidence of deficient performance or prejudice to support his position
beyond bare and conclusory allegations.
       Neither the trial transcript nor Smith’s petition bears out any facts that show deficient
performance on defense counsel’s part regarding the witness identifications. While Smith’s
application contains conclusory statements that the police procedures used to identify him were
“suggestive,” nothing in the record supports his assertion. Furthermore, Smith fails to address
why a pretrial motion to suppress would have been any more effective than the objection counsel
offered at trial, except to say that “had Mr. Smith’s attorney filed the motion prior to trial, he
could have been successful on precluding the in-court identification.” Smith’s application and
the trial transcript contain no other evidence to support such an allegation.


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       Even if Smith had provided facts showing a pretrial motion to suppress would have been
successful, it does not necessarily follow that counsel’s actions were the product of “inadequate
preparation, ignorance of relevant law, or other shortcomings capable of objective evaluation.”
Howard, 126 Idaho at 233, 880 P.2d at 263. Counsel objected at trial to the introduction of the
photographic lineups and related testimony prior to their admittance. One of the objections
succeeded, causing the withdrawal of one of the photographic lineup exhibits. Not only were the
objections timely made, but counsel also cited case law in support of his objections. These acts
do not indicate ignorance of the law or inadequate preparation. As a result, the attorney’s
performance in this case fell well within “the wide range of professional assistance” that satisfies
due process. Payne, 146 Idaho at 561, 199 P.3d at 136.
       Smith points to no facts contained in his application or the trial record that show either
deficient performance by his attorney or that the final outcome would have been different had
counsel moved to suppress the witness identifications pretrial. There is no evidence to move his
petition’s claims beyond “bare and conclusory allegations.” Roman, 125 Idaho at 647, 873 P.2d
at 901. Therefore, the district court properly granted dismissal of this claim.
B.     Ineffective Assistance of Counsel--Failure to Secure Expert Opinion
       Smith argues that he presented enough evidence to create a genuine issue of material fact
as to whether his attorney failed to adequately prepare for trial when counsel failed to secure the
appearance of an expert witness to provide expert opinion regarding Smith’s alleged mental
impairment. He asserts not only that this failure shows deficient performance, but that had the
attorney properly called expert witnesses at trial, there is a reasonable probability the result of the
proceeding would have been different. The State counters once again that Smith failed to present
any admissible evidence to support his claim. Smith’s argument fails because he provides no
evidence of deficient performance or prejudice to support his position beyond bare and
conclusory allegations.
       The appellate court presumes that trial counsel was competent and that trial tactics were
based on sound legal strategy. McKay v. State, 148 Idaho 567, 570, 225 P.3d 700, 704 (2010).
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, 126
Idaho at 233, 880 P.2d at 263. Furthermore, “counsel’s choice of witnesses, manner of cross-


                                                  5
examination, and lack of objection to testimony fall within the area of tactical, or strategic,
decisions.” Giles v. State, 125 Idaho 921, 924, 877 P.2d 365, 368 (Ct. App. 1994).
        Nothing in Smith’s brief or application on this issue is supported by admissible evidence
sufficient to move his assertions beyond bare allegations of deficient performance. Nowhere
does Smith point to evidence in the record to show that defense counsel simply failed to properly
prepare for trial as he claims. A review of Smith’s application reveals only a general allegation
that the chemically-induced, altered mental state “angle” was “never pursued due to the fact that
counsel never investigated any other avenue of this case.” This statement alone is not enough to
create a genuine issue of material fact as to whether Smith’s counsel’s performance was
deficient.
        Furthermore, the trial record does not indicate that the lack of expert testimony was due
to a failure to adequately prepare. Counsel argued at closing arguments that Smith exhibited
bizarre behavior and that he did not have the requisite intent to be found guilty of grand theft.
Smith, in his brief, claims that an expert “could have contributed expert opinion on the impacts
of the [mental] condition.” He also claims that without expert testimony the jury had no
evidence to help it understand how the altered mental state influenced his ability to formulate
intent. Smith does not, however, provide any evidence of what such an expert would actually
opine as opposed to what an expert might have said.
        Even if we assume, arguendo, that there was deficient performance, Smith does not
allege facts sufficient to create a genuine issue of material fact as to whether his case was
prejudiced. With the exception of the two general statements quoted above, Smith’s application
and brief lack any reference to what the expert testimony would have done to change the
outcome. While arguably expert opinion may have aided the jury’s comprehension of Smith’s
mental state, “[t]he constitutional requirement for effective assistance of counsel is not the key to
the prison for a defendant who can dredge up a long series of examples of how the case might
have been tried better.” Ivey v. State, 123 Idaho 77, 80, 844 P.2d 706, 709 (1992). The record is
devoid of evidence sufficient to create a genuine issue of fact that there is a reasonable
probability the trial outcome would be different with expert testimony.
        Smith has failed to present evidence of deficient performance on the part of his attorney
or prejudice to his case. No facts in the record show that counsel’s decision was a result of
inadequate preparation, ignorance of the relevant law, or other shortcomings capable of objective


                                                 6
evaluation. Nor does he present any evidence beyond bare allegations that the outcome of trial
would have been different with the addition of expert testimony. Therefore, the district court
properly granted dismissal of this claim.
C.     Ineffective Assistance of Counsel--Failure to File Motion to Suppress Smith’s
       Statements to Law Enforcement

       Smith next asserts that he presented sufficient evidence to create a genuine issue of
material fact as to whether he received ineffective assistance of counsel in connection with his
statements to Utah law enforcement.         He contends that his attorney provided deficient
performance by failing to move to suppress those statements. He further contends that there is a
genuine issue of material fact as to whether he made the statements knowingly and voluntarily in
accordance with Miranda 1 while suffering from a mental impairment. The State argues Smith
fails to show that he presented admissible evidence that his statements should have been
suppressed.
       Smith’s argument that he received ineffective assistance of counsel when his attorney did
not move to suppress his statements to law enforcement is unsupported by any evidence beyond
bare, conclusory allegations. Similarly, his argument that his mental condition was such that he
did not knowingly and voluntarily waive his rights is unsupported by any admissible evidence.
In his brief, Smith cites only to unsworn and conclusory statements in a memorandum in support
of his contention. The statements contained in the memorandum are not admissible evidence of
what mental condition Smith had or why it would have rendered him incapable of waiving his
Miranda rights. See Dunlap, 126 Idaho at 909, 894 P.2d at 142 (accepting verified allegations of
fact as true). In reviewing a summary dismissal, “we do not give evidentiary value to mere
conclusory allegations unsupported by admissible evidence.” Remington v. State, 127 Idaho 443,
446, 901 P.2d 1344, 1347 (Ct. App. 1995). Furthermore, Smith fails to even argue he was
prejudiced by his attorney’s alleged deficient performance. Without prejudice, a claim of
ineffective assistance of counsel must fail. See Strickland, 466 U.S. at 693. Smith’s allegation
of ineffective assistance of counsel in this instance is conclusory and unsupported by admissible
evidence. Therefore, the district court properly granted dismissal of this claim.



1
       See Miranda v. Arizona, 384 U.S. 436 (1966).



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D.     Ineffective Assistance of Counsel--Failure to File Motion for Mistrial
        Smith claims that he presented sufficient evidence to raise a genuine issue of material
fact as to whether he received ineffective assistance of counsel when his attorney failed to file a
motion for mistrial. He further claims there is a genuine issue of material fact as to whether the
jury heard the district court’s ruling on his motion for a directed verdict. The State contends that
Smith has failed to present admissible evidence that the jury overheard the district court’s ruling,
and therefore the district court properly granted dismissal of this claim.
       Smith asserts that the trial court expressed a strong opinion of his guilt when ruling on his
motion for a directed verdict. Furthermore, in his application, he alleges the trial court spoke so
loudly when ruling on the motion that the jury could hear the ruling while sequestered. To
support this assertion, Smith alleges that the room where the jury was sequestered adjoins the
courtroom and that the room itself was not soundproof. He further alleges that “during the trial
[he and defense counsel] heard the jury numerous times” while the jury was sequestered.
However, Smith’s allegations are bare and unsupported. No affidavits are present to substantiate
Smith’s allegations, and the trial record does not disclose any facts to support his assertion that
the jury heard, or could have heard, the ruling. While the allegations contained in Smith’s
application are deemed to be true when uncontroverted by the State, the appellate court need not
accept the applicant’s conclusory allegations that are unsubstantiated by any admissible
evidence. Roman, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994). Smith’s allegations
in this instance are conclusory and unsupported by admissible evidence.
       Smith asserts in the alternative that the district court’s alleged error constituted a
violation of due process that deprived him of a fair trial. In essence, Smith contends that he is
entitled to assert a direct constitutional violation claim in this post-conviction case because he
could not have adequately raised the claim on direct appeal. Regardless of whether Smith can
properly assert this claim in this case, no due process violation has been shown. There is no
evidence in the appellate record as to whether the jury actually heard the district court’s ruling,
except the conclusory allegation in Smith’s application. The district court properly granted
dismissal of this claim.




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E.     Conflict of Interest
       Smith makes three claims involving an alleged conflict of interest in his application for
post-conviction relief. First, Smith asserts that his attorney operated under a conflict of interest
that adversely affected his attorney’s performance. Second, Smith asserts that the district court
erred when it failed to conduct an inquiry into the potential conflict of interest. Third, he claims
that the district court failed to inquire into whether it should appoint substitute counsel due to the
attorney’s conflict. Smith’s arguments fail because, as the State contends, he has not alleged
sufficient facts or provided any admissible evidence to support his position.
       1.         Attorney operated under conflict of interest
       As an initial matter, Smith argues that the lower standard for attorney conflicts of interest
used in United States v. Cuyler, 446 U.S. 335, 349-50 (1980), applies in this instance. Cuyler
provides that a defendant need not show prejudice to his case, as required by Strickland, if he can
prove “a conflict of interest actually affected the adequacy of his representation.” Id. In Sparks
v. State, 140 Idaho 292, 297, 92 P.3d 542, 547 (Ct. App. 2004), this Court held that the lower
Cuyler standard applies only in situations of multiple representation, where counsel actively
represents more than one defendant in the same case. Therefore, we apply the Strickland test for
representation conflicts of interest, and only apply Cuyler in those cases that involve multiple
representation.
       In this case, neither Smith’s petition nor the trial record discloses any facts showing even
a potential conflict of interest, much less whether it involved serial or multiple representation.
The petition contains a conclusory statement that “on numerous occasions [the] defendant
advised the court that he wanted new counsel.” The petition later states that “there [were] prior
complaints as to the way to investigate and the course of the trial. . . .” Neither allegation rises to
the level of an “irrevocable breakdown of communication” that would create a conflicted
attorney. See State v. Lippert, 145 Idaho 586, 597, 181 P.3d 512, 523 (Ct. App. 2007). The
statements do not show deficient performance or prejudice as required by Strickland. Nor do the
statements show Smith’s attorney actively represented conflicting interests as required by
Cuyler. See Cuyler, 446 U.S. at 348. Smith has failed to present any admissible evidence
showing his attorney actually had a conflict of interest, or even the possibility that one existed.
Since he has failed to present sufficient evidence to create a genuine issue of material fact as to
whether a conflict of interest existed, the district court properly granted dismissal of this claim.


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         2.     District court errors
         Smith also asserts that he set forth a claim that the trial court erred by not conducting an
adequate inquiry into his claimed conflict of interest and whether to appoint substitute counsel.
His allegations are insufficient, however, and he presents no admissible evidence to support such
a claim.
         “Whenever a trial court knows or reasonably should know that a particular conflict may
exist, the trial court has a duty of inquiry” to ensure that criminal defendants are not deprived of
the effective assistance of counsel. State v. Lovelace, 140 Idaho 53, 60, 90 P.3d 278, 285 (2003).
“A trial court’s failure to conduct an inquiry, under certain circumstances, will serve as a basis
for reversing a defendant’s conviction.” State v. Severson, 147 Idaho 694, 703, 215 P.3d 414,
423 (2009); see also Holloway v. Arkansas, 435 U.S. 475, 488 (1978). “Whether a trial court’s
failure to adequately inquire into a potential conflict of interest is enough, on its own, to justify
reversal depends on whether the defendant objected to the conflict at trial.” Severson, 147 Idaho
at 703, 215 P.3d at 423. “When a trial court fails to make a proper inquiry, but the defendant did
not object to the conflict at trial, the defendant’s conviction will only be reversed if he or she can
prove that an actual conflict of interest adversely affected his lawyer’s performance.” Id.; see
also Cuyler, 446 U.S. at 348.
         As discussed above, Smith’s application contains no facts that support his assertion that
his attorney had a conflict of interest, actual or potential. Without so much as a potential conflict
of interest, the district court’s duty of inquiry was never triggered. Since Smith failed to produce
admissible evidence to support his allegation, the district court properly granted dismissal of this
claim.
                                                 III.
                                          CONCLUSION
         Smith failed to support his claims of ineffective assistance of counsel with any admissible
evidence beyond bare and conclusory allegations and, therefore, the district court’s order
dismissing Smith’s application for post-conviction relief is affirmed.
         Judge LANSING and Judge GUTIERREZ CONCUR.




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