               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 42918

KLEE MORRISON,                                  )    2015 Unpublished Opinion No. 702
                                                )
       Plaintiff-Appellant,                     )    Filed: November 10, 2015
                                                )
v.                                              )    Stephen W. Kenyon, Clerk
                                                )
STATE OF IDAHO,                                 )    THIS IS AN UNPUBLISHED
                                                )    OPINION AND SHALL NOT
       Defendant-Respondent.                    )    BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho,
       Minidoka County. Hon. Jonathan P. Brody, District Judge.

       Order granting motion for summary dismissal, affirmed.

       Idaho Legal Defense; Jesse R. Thomas, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GRATTON, Judge
       Klee Morrison appeals from the district court’s order granting the State’s motion for
summary dismissal of his petition for post-conviction relief. We affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       At sixteen years of age, Morrison pled guilty in district court to one felony count of
aiding and abetting the unlawful taking of protected wildlife. The incident involved the unlawful
killing of up to three bull elk. Morrison waived a preliminary hearing, and a judgment of
conviction was issued on January 29, 2001, and then amended on May 21, 2001. Morrison
violated probation several times and his sentence was ordered executed on November 18, 2004.
He was paroled in 2006. Thirteen years after the entry of judgment, Morrison petitioned for
post-conviction relief. Morrison claimed that the district court lacked subject matter jurisdiction
to hear his case because he was a juvenile at the time he committed the fish and game offense.

                                                1
Morrison also asserted that his post-conviction petition was not barred by the one-year statute of
limitations because jurisdictional issues may be raised at any time, and therefore he is entitled to
equitable tolling of the one-year limitation. After hearing oral argument, the district court
rejected Morrison’s petition as untimely. Morrison timely appeals.
                                                 II.
                                           ANALYSIS
       Morrison asserts that the district court erred by granting the State’s motion for summary
disposition based on the untimeliness of the petition. A petition for post-conviction relief
initiates a civil, rather than criminal, proceeding, governed by the Idaho Rules of Civil
Procedure. I.C. § 19-4907; 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 plaintiffs in other civil
actions, the petitioner must prove by a preponderance of evidence the allegations upon which the
request for post-conviction relief is based. 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). A
petition for post-conviction relief differs from a complaint in an ordinary civil action, however,
in that it must contain 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 petition 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. I.C. § 19-4903. In other words, the petition must present or be
accompanied by admissible evidence supporting its allegations, or it will be subject to dismissal.
Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011); Roman v. State, 125 Idaho
644, 647, 873 P.2d 898, 901 (Ct. App. 1994).
       Idaho Code § 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.” I.C. § 19-4906(c). 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,

                                                 2
unsupported by admissible evidence, or the petitioner’s conclusions of law. Payne, 146 Idaho at
561, 199 P.3d at 136; Roman, 125 Idaho at 647, 873 P.2d at 901. Moreover, because the district
court rather than a jury will be the trier of fact in the event of an evidentiary hearing, the district
court is not constrained to draw inferences in the petitioner’s favor, but is free to arrive at the
most probable inferences to be drawn from the evidence. Yakovac, 145 Idaho at 444, 180 P.3d at
483; Wolf, 152 Idaho at 67, 266 P.3d at 1172; 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. Chavez v. Barrus, 146 Idaho 212, 218, 192 P.3d 1036,
1042 (2008); Hayes, 146 Idaho at 355, 195 P.2d at 714; Farnsworth v. Dairymen’s Creamery
Ass’n, 125 Idaho 866, 868, 876 P.2d 148, 150 (Ct. App. 1994).
       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); McKay v. State, 148 Idaho 567, 570, 225 P.3d 700, 703 (2010); DeRushé v. State, 146
Idaho 599, 603, 200 P.3d 1148, 1152 (2009); Charboneau v. State, 144 Idaho 900, 903, 174 P.3d
870, 873 (2007); Berg v. State, 131 Idaho 517, 518, 960 P.2d 738, 739 (1998); Murphy v. State,
143 Idaho 139, 145, 139 P.3d 741, 747 (Ct. App. 2006); Cootz v. State, 129 Idaho 360, 368, 924
P.2d 622, 630 (Ct. App. 1996). 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 Payne, 146 Idaho at 561, 199 P.3d at 136; 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);
Berg, 131 Idaho at 519, 960 P.2d at 740; Stuart v. State, 118 Idaho 932, 934, 801 P.2d 1283,
1285 (1990); Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008); Roman,
125 Idaho at 647, 873 P.2d at 901. If a genuine issue of material fact is presented, an evidentiary



                                                  3
hearing must be conducted to resolve the factual issues. Kelly, 149 Idaho at 521, 236 P.3d at
1281; Payne, 146 Idaho at 561, 199 P.3d at 136; 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); Berg, 131 Idaho at 519, 960 P.2d at 740; Sheahan, 146 Idaho at 104, 190 P.3d at
923; Roman, 125 Idaho at 647, 873 P.2d at 901. Over questions of law, we exercise free review.
Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069 (2009); Downing v. State, 136 Idaho
367, 370, 33 P.3d 841, 844 (Ct. App. 2001); Martinez v. State, 130 Idaho 530, 532, 944 P.2d
127, 129 (Ct. App. 1997). Here, the district court granted the State’s motion for summary
disposition, finding that the petition was untimely because the petitioner failed to challenge the
district court’s jurisdiction prior to his plea. We agree.
       Morrison claims that subject matter jurisdiction issues create an exception to the one-year
time limit to file a post-conviction relief petition because subject matter jurisdiction in the
criminal context may be raised at any time. To support his contention, Morrison asserts that the
statute giving juvenile court jurisdiction over minors applies to the appellant’s fish and game
felony. The juvenile jurisdiction statute expressly excludes “fish and game” violations from
juvenile jurisdiction, but Morrison argues that felonies are not “violations”1 as used in I.C. § 20-
505. Morrison argues that his fundamental due process rights were violated because the district
court never had jurisdiction to sentence him, and so he is entitled to equitable tolling.
       The State responds that the petition is untimely regardless of the jurisdictional issue. It
claims first that Morrison’s petition is untimely because it was filed approximately thirteen years
after a final judgment was entered in his criminal case, and the statute of limitations demands
that a petition for post-conviction relief be filed within one year from the expiration of the time
for appeal or from the determination of appeal, or from the determination of a proceeding
following an appeal. Second, the State asserts that the post-conviction relief statute specifically
provides that a petitioner can allege that the sentencing court was without jurisdiction, yet the
only statutory exception to the one-year limitation is petitions for fingerprint or DNA testing, not

1
       The Court in Zamora v. State, 123 Idaho 192, 194, 846 P.2d 194, 196 (1992) notes that
the motor vehicle code defines violation as a conviction of a misdemeanor charge or the
commission of an infraction and the penal code dictates that when violation is used in the Idaho
Code, it should be construed to mean a misdemeanor.
                                                  4
jurisdictional claims.   More particularly, the State argues that while jurisdiction may be
challenged at any time in the criminal case, the same is not true in post-conviction, which is a
separate civil case. Third, the State argues that Morrison’s claims do not fall within any of the
well-defined exceptions required to invoke equitable tolling. Specifically, that while a
jurisdiction claim may invoke an important due process issue that warrants equitable tolling, the
exception is limited to extraordinary circumstances where the failure to timely file were beyond
the petitioner’s control, and Morrison has failed to provide any such circumstances. Further, the
State contends that Morrison’s construction of the juvenile jurisdiction statute is erroneous.
       The district court found that Morrison’s failure to raise the issue of jurisdiction prior to
entry of his guilty plea precludes him from raising the issue on appeal. Idaho Supreme Court
precedent clearly holds that a juvenile who does not object to a district court’s jurisdiction over
him prior to trial waives the right to object. State v. Kavajecz, 139 Idaho 482, 485, 80 P.3d 1083,
1086 (2003).2    In Kavajecz, the defendant was found guilty in district court of lewd and
lascivious conduct with a minor for acts he committed when he was a minor; he appealed. Id. at
483, 80 P.3d at 1084. The magistrate court had waived juvenile jurisdiction upon defendant’s
request without holding a hearing or making any findings of fact. Id. The Court held the
defendant had waived his appellate argument that jurisdiction was improper because the
defendant failed to challenge the district court’s jurisdiction prior to trial. Id. at 485, 80 P.3d at
1086. In addition, the Court held that the question of juvenile or adult “jurisdiction” is not truly
a jurisdictional issue because both the magistrate and district courts have jurisdiction over
juveniles3 Id. Therefore, Morrison’s juvenile jurisdiction issue was waived by not asserting it
before entering his guilty plea, and the district court correctly determined that his appeal was
untimely.

2
       See also State v. Burnight, 132 Idaho 654, 657, 978 P.2d 214, 217 (1999) (holding that a
seventeen year old’s failure to attack the district court’s jurisdiction before his plea on an
attempted robbery charge waived his right to raise the issue in later motions or on appeal); State
v. Harwood, 98 Idaho 793, 795, 572 P.2d 1228, 1230 (1977) (granting of juvenile jurisdiction
waiver was not challenged until after trial, and without “a proper and timely attack the court is
not divested of jurisdiction to proceed against the accused”).
3
        “There is simply a difference in procedures and sentencing options depending upon
whether the juvenile’s case is being handled under the JCA or under the adult felony statutes.”
State v. Kavajecz, 139 Idaho 482, 485, 80 P.3d 1083, 1086 (2003).


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       Morrison claims that if the district court had jurisdiction, then equitable tolling should
apply to the timeliness of his petition because important due process rights in juvenile
proceedings were violated. However, even if tolling were appropriate, it only applies so long as
the impediment to filing a petition exists. Morrison makes no claim that the petition could not
have been filed years earlier.4
                                               III.
                                        CONCLUSION
       Morrison waived his right to challenge the district court’s jurisdiction, he does not raise a
proper subject matter jurisdiction claim, and his petition is untimely. The district court’s order
granting the State’s motion for summary dismissal is affirmed.
       Judge GUTIERREZ and Judge HUSKEY CONCUR.




4
       We need not address the remaining claims raised by the parties.
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