               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 39420

GREGORY SCOTT McAMIS,                              )    2013 Unpublished Opinion No. 769
                                                   )
       Petitioner-Appellant,                       )    Filed: November 26, 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STATE OF IDAHO,                                    )    THIS IS AN UNPUBLISHED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 Third Judicial District, State of Idaho,
       Canyon County. Hon. James C. Morfitt, District Judge.

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

       Gregory S. McAmis, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Gregory Scott McAmis appeals from the district court’s summary dismissal of his
petition for post-conviction relief. We affirm.
                                                  I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Pursuant to a plea agreement, McAmis pled guilty to grand theft but failed to attend the
subsequent sentencing hearing, having absconded to Florida. After his eventual return, the State
refused to abide by the sentencing provisions of the original plea agreement and McAmis
appealed both his sentence and the denial of his Idaho Criminal Rule 35 motion, but did not
challenge the State’s refusal to follow the agreement. This Court affirmed McAmis’s sentence
and denial of his Rule 35 motion. See State v. McAmis, Docket No. 35950 (Ct. App. Dec. 1,
2009) (unpublished). McAmis subsequently filed a petition for post-conviction relief alleging
the State breached the plea agreement and that his counsel was ineffective for failing to object to
the State’s alleged breach. After the State filed a motion for summary dismissal and the district


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court filed a notice of intent to dismiss, the district court summarily dismissed the petition.
McAmis timely appeals.
                                                  II.
                                            ANALYSIS
       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,
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


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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
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,


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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).
       McAmis alleges his trial counsel was ineffective for failing to challenge the State’s
breach of the plea agreement. The State argues that McAmis’s petition was properly dismissed
because he could not have prevailed if his attorney had filed a motion challenging the alleged
breach. A claim of ineffective assistance of counsel may properly be brought under the Uniform
Post-Conviction Procedure Act. Barcella v. State, 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct.
App. 2009). To prevail on an ineffective assistance of counsel claim, the petitioner must show
that the attorney’s performance was deficient and that the petitioner was prejudiced by the
deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Self v. State, 145 Idaho 578,
580, 181 P.3d 504, 506 (Ct. App. 2007). 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); Knutsen, 144 Idaho at 442,
163 P.3d at 231. 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. Gonzales v. State, 151 Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011).
       In a post-conviction proceeding challenging an attorney’s failure to pursue a motion in
the underlying criminal action, the court may consider the probability of success of the motion in
question in determining whether the attorney’s inactivity constituted ineffective assistance. Lint
v. State, 145 Idaho 472, 477, 180 P.3d 511, 516 (Ct. App. 2008). Where the alleged deficiency is
counsel’s failure to file a motion, a conclusion that the motion, if pursued, would not have been
granted by the trial court, is generally determinative of both prongs of the Strickland test. Lint,
145 Idaho at 477-78, 180 P.3d at 516-17.
       McAmis admits that he absconded and did not appear for his sentencing. Failing to
attend sentencing is a breach of the plea agreement by the defendant, excusing the State from
making the recommendations otherwise required by the plea agreement. State v. Jafek, 141
Idaho 71, 74, 106 P.3d 397, 400 (2005). McAmis’s failure to attend his sentencing excused the


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State from making the recommendations otherwise required by the agreement. The district court
properly held that McAmis’s petition failed to meet either prong of Strickland because the record
disproves his claim that the State breached the agreement.
        McAmis also argues, for the first time on appeal, that his due process rights were
violated when the sentencing judge denied his request to withdraw his guilty plea. Generally,
issues not raised below may not be considered for the first time on appeal. State v. Fodge, 121
Idaho 192, 195, 824 P.2d 123, 126 (1992). McAmis did not assert this issue in his claim for
post-conviction relief and we decline to address it for the first time on appeal.
        Finally, McAmis contends his due process rights were violated in his pursuit of post-
conviction relief because he was not present at all the post-conviction hearings. Due process
does not require a hearing in every conceivable case of government impairment of a private
interest. Stanley v. Illinois, 405 U.S. 645, 650 (1972). Rather, procedural due process requires
an opportunity to be heard. Kramer v. Jenkins, 806 F.2d 140, 141 (7th Cir. 1986); Rios-Lopez v.
State, 144 Idaho 340, 343, 160 P.3d 1275, 1278 (Ct. App. 2007). Procedural due process is
flexible and calls for such procedural protections as the situation demands. Morrissey v. Brewer,
408 U.S. 471, 481 (1972); Rios-Lopez, 144 Idaho at 343, 160 P.3d at 1278. The record shows
McAmis was not present at two hearings. The first hearing was a status conference; however,
McAmis was represented by counsel at the hearing. The other hearing was on the motion to
summarily dismiss the petition for post-conviction relief. McAmis was again represented by
counsel at the hearing and his attorney informed the court the motion could be addressed without
McAmis’s presence. Pursuant to I.C. § 19-4907(b), the petitioner is not always entitled to be
present at hearings. McAmis’s right to due process was not violated.
                                                 III.
                                          CONCLUSION
        The district court did not err by summarily dismissing McAmis’s petition for post-
conviction relief. Therefore, the order summarily dismissing his petition for post-conviction
relief is affirmed.
        Judge LANSING and Judge MELANSON CONCUR.




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