               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

STATE OF IDAHO,                                   )
                                                  )   Docket No. 35825
       Plaintiff-Respondent,                      )
                                                  )
v.                                                )
                                                  )
JOSEPH EDWARD SCHMITZ,                            )
                                                  )
       Defendant-Appellant.                       )
                                                  )
                                                  )
JOSEPH EDWARD SCHMITZ,                            )   Docket No. 36666
                                                  )
       Petitioner-Appellant,                      )   2010 Unpublished Opinion No. 517
                                                  )
v.                                                )   Filed: June 18, 2010
                                                  )
STATE OF IDAHO,                                   )   Stephen W. Kenyon, Clerk
                                                  )
       Respondent.                                )   THIS IS AN UNPUBLISHED
                                                  )   OPINION AND SHALL NOT
                                                  )   BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Michael E. Wetherell, District Judge.

       Orders denying I.C.R. 35 motion for reduction of sentence and granting summary
       dismissal of successive petition for post-conviction relief, affirmed.

       Joseph E. Schmitz, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jennifer E. Birken, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GUTIERREZ, Judge
       Joseph Edward Schmitz was convicted upon a jury verdict finding him guilty of lewd
conduct with a minor under sixteen. In this consolidated appeal, he appeals the denial of his
Idaho Criminal Rule 35 motion for reduction of sentence and the summary dismissal of his
successive post-conviction petition. We affirm.



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                                                 I.
                                  FACTS AND PROCEDURE
       After a jury trial, Schmitz was convicted of lewd conduct with a minor under sixteen
years, Idaho Code Section 18-1508. He filed a motion for a new trial, which was denied. On
March 23, 2006, the district court imposed a unified sentence of ten years with five years
determinate, but suspended the sentence and placed Schmitz on probation for a period of ten
years. No direct appeal was taken. Schmitz filed a petition for post-conviction relief and after
an evidentiary hearing, the district court dismissed the petition in April 2007.
       Schmitz subsequently violated the terms of his probation. However, the district court
reinstated probation. Approximately three months later, Schmitz admitted to again violating the
terms of his probation. In response, the court revoked probation, executed the original sentence,
and retained jurisdiction for 180 days. After a review hearing in May 2008, the district court
relinquished jurisdiction and modified the sentence to a total of ten years with four years
determinate. Schmitz filed a Rule 35 motion for reduction of sentence, which was denied.
Schmitz appealed the denial of his Rule 35 motion.
       On March 25, 2009, Schmitz filed a pro se successive petition for post-conviction relief,
alleging violations of his due process rights, denial of equal protection, age discrimination, cruel
and unusual punishment, and ineffective assistance of counsel in regard to the period of retained
jurisdiction and the court‟s subsequent relinquishment of jurisdiction. The district court issued a
notice of intent to summarily dismiss the petition, giving Schmitz thirty days to respond. After
Schmitz did so, the district court viewed the response as merely disagreement with the court‟s
legal conclusions, and it summarily dismissed all but one of Schmitz‟s claims. Citing additional
grounds on which it intended to dismiss Schmitz‟s age discrimination claim, the district court
granted Schmitz additional time to reply to the notice of intent to dismiss that claim. Schmitz
filed a response outside the twenty-day time period allowed by the district court, but even after
the court considered the untimely response, it still summarily dismissed Schmitz‟s remaining
claim of age discrimination. Schmitz timely appealed and filed a motion to consolidate his
Rule 35 appeal and his post-conviction appeal, which was granted by the Idaho Supreme Court.




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                                                II.
                                            ANALYSIS
A.     Post-Conviction Petition
       Schmitz appeals from the district court‟s order summarily dismissing his successive
petition for post-conviction relief. Schmitz advances several arguments he raised below: that he
was denied his due process rights when he participated in a psychosexual evaluation prior to his
retained jurisdiction hearing and when he was “not allowed to challenge the Rider [sic]
evaluations,” that the evaluators denied him equal protection by engaging in age discrimination,
and that counsel was ineffective for advising him not to file an appeal of his sentence. He also
raises two new issues on appeal: that the district court abused its discretion “when it displayed
bias and prejudicial conduct and actions,” and that his attorney rendered ineffective assistance of
counsel when he failed to assist Schmitz in preparing for the May 9, 2008, rider review hearing.
       An application 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 applicant 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).
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). An 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). Rather, an application for post-conviction relief 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 Section 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 pursuant to I.C. § 19-4906 is the procedural equivalent of
summary judgment under I.R.C.P. 56. A claim for post-conviction relief will be subject to

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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). 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. Rhoades, 148 Idaho at 249-
50, 220 P.3d at 1068-69; Goodwin, 138 Idaho at 272, 61 P.3d at 629. Summary dismissal of an
application for post-conviction relief may be appropriate, 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. 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).
        On review of a dismissal of a post-conviction relief application without an evidentiary
hearing, we determine whether a genuine issue of fact exists based on the pleadings, depositions,
and admissions together with any affidavits on file. Rhoades, 148 Idaho at 250, 220 P.3d at
1069; Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct. App. 1993). In post-conviction
actions, 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).
        1.      Judicial bias
        In the introduction of the argument section of his appellate brief, Schmitz contends that
the trial court “abused its discretion when it displayed bias and prejudicial conduct and actions
due to numerous and obvious reversible errors.” In the substantive portion of his brief on this
issue, Schmitz lists numerous instances of alleged bias and prejudice by the trial court and then
claims that the trial court “committed reversible error when the Court excluded or refused to
accept documented testimony from witnesses.” It appears that Schmitz actually raises two
distinct issues--allegations of judicial bias and assignment of error in regard to admission of
evidence. We need not parse Schmitz‟s arguments further, however, because he did not raise
either issue below.



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       It is well settled that in general, issues not raised below may not be raised for the first
time on appeal. Small v. State, 132 Idaho 327, 331, 971 P.2d 1151, 1155 (Ct. App. 1998). As
we indicated above, Schmitz‟s successive post-conviction petition and supporting affidavits do
not raise either the judicial bias claim or the evidentiary error claim. Thus, we will not address
them for the first time on appeal.
       2.      Ineffective assistance of counsel
       Schmitz also argues that it was error to dismiss his ineffective assistance of counsel
claims alleging trial counsel was ineffective for failing to assist him in preparing for his rider
review hearing and was ineffective for advising him against appealing the court‟s decision to
sentence him to prison. However, his claim regarding counsel‟s failure to properly prepare him
for the rider review hearing is raised for the first time on appeal. As we indicated above, it is
well-settled that in general, issues raised for the first time on appeal will not be addressed. Id.
We therefore do not address the merits of this claim.
       In regard to his claim of ineffective assistance, based on counsel‟s advice that he not
appeal his sentence, the district court gave notice that it would summarily dismiss the claim
because Schmitz did not allege that his attorney “failed or forgot to file the appeal, only that he
advised against it.” In addition, the court noted that the record indicates that a notice of appeal
was, in fact, filed on November 3, 2008, which was pending at the time the district court noticed
its intent to summarily dismiss Schmitz‟s petition. Thus, the court concluded that even assuming
that Schmitz‟s attorney failed or refused to file an appeal, Schmitz could not show the requisite
prejudice because an appeal had actually been filed.
       A claim of ineffective assistance of counsel may properly be brought under the 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 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.

                                                5
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).
       The record indicates Schmitz presented no evidence that he demanded, and his counsel
refused, to file an appeal of his sentence. Nor does he present facts indicating that counsel‟s
advice (to not appeal) was not reasonable. Additionally, the record indicates that Schmitz filed a
notice of appeal pro se seeking review of the trial court‟s denial of his Rule 35 motion.1 Thus,
the district court was correct in ruling that Schmitz failed to establish a prima facie case of
ineffective assistance of counsel on his sentencing claim. The district court did not err in
summarily dismissing this claim.
       3.      Due process
       Schmitz contends that the district court erred in summarily dismissing his post-conviction
claim that his due process rights were violated because his psychosexual evaluation was not
performed by “qualified sex offender clinicians” and because he was “not allowed to challenge
the Rider [sic] evaluations.” As a result, Schmitz contends that the sentencing court “violated his
protected liberty interest when the Court sentenced [him] to prison based on a flawed report by
the unqualified clinicians at [the prison].”
       In summarily dismissing Schmitz‟s due process claim, the district court concluded,
among other things, that Schmitz did not have a protected liberty interest in being granted
probation after the period of retained jurisdiction and that he failed to show prejudice in regard to
either claim. Because it is dispositive, we focus on the absence of a recognized liberty interest.
       Due process protections are implicated only where a government decision deprives an
individual of a liberty or property interest within the meaning of the Fourteenth Amendment‟s
Due Process Clause. State v. Rogers, 144 Idaho 738, 741, 170 P.3d 881, 884 (2007). In State v.
Coassolo, 136 Idaho 138, 143, 30 P.3d 293, 298 (2001), the Idaho Supreme Court overruled
State v. Wolfe, 99 Idaho 382, 582 P.2d 728 (1978), by holding that an inmate‟s hope or
expectation of probation at the conclusion of a retained jurisdiction period is not a liberty interest


1
       Schmitz attempts to distinguish an appeal of the sentence itself and his pro se appeal
from the denial of his Rule 35 motion. His appeal of the denial of his Rule 35 motion is an
appeal challenging his sentence.
                                                  6
protected by the Due Process Clause. Thus, the Court held, there exists no constitutional
requirement of a hearing either at the correctional facility or in the trial court before the court
determines whether to relinquish jurisdiction or to place the defendant on probation. Coassolo,
136 Idaho at 143, 30 P.3d at 298. The Court also specifically noted that in light of this
conclusion, the interest of the prisoner in the fairness and accuracy of the rider report is not a
constitutionally protected liberty interest. Id.
       In State v. Goodlett, 139 Idaho 262, 77 P.3d 487 (Ct. App. 2003), this Court addressed
whether, in light of Coassolo, the trial court has a duty to give the defendant an opportunity to
make a written response to the facility‟s report before the court decides whether to relinquish
jurisdiction. We held that Coassolo does not require the facility to extend to the defendant the
opportunity to make a response as such a holding would “contravene the express holding of
Coassolo that inmates have no due process rights to any procedural safeguard in connection with
the facility‟s recommendation or the court‟s decision whether to grant probation or to relinquish
jurisdiction.” Id. at 265, 77 P.3d at 490.
       Based on the authority above, we conclude that the district court did not err in summarily
dismissing Schmitz‟s due process claims as he retained no recognized liberty interest in
challenging the accuracy and fairness of the report (implicated by his argument that the
psychosexual examination was not conducted by “licensed clinicians”) or in having an
opportunity to challenge the rider evaluations. In addition, to the extent that he contends that the
sentencing court violated his due process right by denying him probation, his claim fails and
summary dismissal was appropriate. See Coassolo, 136 Idaho at 143, 30 P.3d at 298 (holding
that a defendant does not have a protected liberty interest in being granted probation after a rider;
rather there is the “mere possibility or a „coveted goal‟”).
       4.      Equal protection
       Schmitz also contends that the district court erred in summarily dismissing his claim that
age discrimination was a “major factor” in the district court‟s decision to relinquish jurisdiction.
Specifically, he claimed that “[m]en 35 or older were recommended for relinquishment where
men 34 or under were recommended for probation.”
       In summarily dismissing the claim, the district court noted that an applicant for post-
conviction relief is required to make a prima facie case by presenting admissible evidence on
each essential element of his claims, and that Schmitz had relied on “inadmissible, speculative

                                                   7
evidence based on what he believes were [the evaluator‟s] reasons for making recommendations
as to different inmates.” In its first notice of intent to dismiss, the court also noted that while
Schmitz claimed he had several witnesses willing to testify on his behalf, he failed to include
affidavits from these witnesses, failed to name them, and “even failed to allege hearsay as to
what these witnesses would specifically testify to.” Finally, the court also noted that all of
Schmitz‟s evaluators gave “substantial reasoning for their conclusions, which were in no way
related to age discrimination.    Rather, it appears that [Schmitz] was unable to accept full
responsibility for his crimes and constantly shifted the blame for his acts and misfortune of
incarceration onto others.” The court gave notice the claim would be dismissed because it was
unsupported by admissible evidence, and contradicted by the record.
       In response to the court‟s notice of intent to dismiss, Schmitz submitted affidavits of four
fellow inmates who, as the district court put it, “believe” that the correctional facility staff
discriminates against inmates on the basis of their age. The court noted that the testimony of
each affiant is similar, each basing their conclusion on their perception that the younger inmates
were recommended for probation, despite their inferior performance, and the older inmates were
not, due solely to their more mature ages. The district court ruled that the affiants‟ claims were
conclusory.2
       As noted above, the district court is not required to accept an applicant‟s mere conclusory
allegations when determining whether an application establishes a prima facie case regarding the
claims asserted in a post-conviction petition. Having reviewed the affidavits from Schmitz‟s
fellow inmates, we agree with the district court that the affidavits provided conclusory opinions--
without verified facts--as to why certain inmates were recommended for probation and others
were not. In short, they present nothing but speculation about evaluators‟ reasons for their
recommendations. Because this claim was not supported by admissible evidence, the district
court did not err in summarily dismissing Schmitz‟s equal protection claim.
B.     Rule 35 Motion
       As the state points out, while in the “Statement of the Case” section of his brief, Schmitz
indicates that he appeals from the district court‟s “decisions on September 22, 2008 denying


2
       The district court also gave other reasons for summarily dismissing this equal protection
claim; however, we need not address them here because we conclude that its initial basis for
dismissal was not erroneous.
                                                8
Reduction of Sentence and request for Probation after placing Appellant in the Rider Program at
Cottonwood, Idaho,” he never refers to the issue again and thus provides no argument on his
contention that the district court erred in denying his Rule 35 motion. It is well settled that a
party waives an issue on appeal if argument is lacking. State v. Zichko, 129 Idaho 259, 263, 923
P.2d 966, 970 (1996). Thus, we do not address the merits of this argument.
                                                III.
                                         CONCLUSION
       The district court did not err in summarily dismissing Schmitz‟s successive petition for
post-conviction relief, because he did not present any material issues of fact such that an
evidentiary hearing was required. Specifically, as to his post-conviction claims regarding the
district court‟s alleged bias and his allegation that counsel rendered him ineffective assistance
because he did not adequately prepare Schmitz for the retained jurisdiction hearing, we do not
reach the merits because the claims were not raised below. Further, the district court did not err
in summarily dismissing Schmitz‟s ineffective of assistance claim based on the allegation that
counsel had advised him against filing a direct appeal of his sentence, because Schmitz did not
demonstrate deficient performance or prejudice. Likewise, the court did not err in summarily
dismissing his claim that his due process rights were violated by the procedures involved in the
preparation of his rider evaluation, because he does not possess a recognized liberty interest in an
accurate report or in responding to the report. Finally, the district court did not err in summarily
dismissing the equal protection claim based on an allegation that older inmates in the retained
jurisdiction program were discriminated against in the facility‟s recommendations of suitability
for probation, because Schmitz offered only conclusory assertions in support. We do not reach
the merits of Schmitz‟s claim that the court erred in denying his Rule 35 motion for reduction of
sentence, because Schmitz provides no argument or authority in regard to the issue on appeal.
       The district court‟s denial of Schmitz‟s Rule 35 motion is affirmed, as is the district
court‟s summary dismissal of his successive petition for post-conviction relief.
       Chief Judge LANSING and Judge GRATTON, CONCUR.




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