               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38455

DONALD SHANE BRINK,                               )     2012 Unpublished Opinion No. 739
                                                  )
       Petitioner-Appellant,                      )     Filed: November 27, 2012
                                                  )
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STATE OF IDAHO,                                   )     THIS IS AN UNPUBLISHED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.

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

       Donald Shane Brink, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jason M. Gray, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       Donald Shane Brink appeals from the district court’s judgment summarily dismissing his
petition for post-conviction relief. For the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       A jury found Brink guilty of first degree murder with an enhancement for using a deadly
weapon, I.C. §§ 18-4001 to -03 and 19-2520, and being a persistent violator, I.C. § 19-2514.
The district court sentenced Brink to a unified term of life imprisonment plus thirty years, with a
minimum period of confinement of thirty years. In an unpublished opinion, this Court affirmed
Brink’s judgment of conviction. State v. Brink, Docket No. 34391 (Ct. App. Nov. 7, 2008).
Brink filed a petition for post-conviction relief and was appointed counsel. The state filed a
motion for summary dismissal alleging that Brink’s petition was untimely. The district court
issued a notice of intent to dismiss. Brink filed documentation showing that his petition had
been timely filed. The district court withdrew its notice and denied the state’s motion. The state


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filed a second motion for summary dismissal.          The district court granted Brink’s motion
requesting leave to proceed pro se. Brink filed an amended petition for post-conviction relief.
The state filed a third motion for summary dismissal. After hearing oral argument on the state’s
motion, the district court entered a judgment summarily dismissing Brink’s petition. Brink
appeals.
                                                II.
                                   STANDARD OF REVIEW
       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


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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. Hayes, 146 Idaho at 355, 195 P.3d at 714.
       The scope of post-conviction relief is limited. Rodgers v. State, 129 Idaho 720, 725, 932
P.2d 348, 353 (1997). A petition for post-conviction relief is not a substitute for an appeal. I.C.
§ 19-4901(b). A claim or issue which was or could have been raised on appeal may not be
considered in post-conviction proceedings. Id.; Whitehawk v. State, 116 Idaho 831, 832-33, 780
P.2d 153, 154-55 (Ct. App. 1989). Also, 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




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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).
                                               III.
                                           ANALYSIS
       Brink argues that the district court erred by summarily dismissing his petition for post-
conviction relief. In his petition, Brink alleged five main claims. We will consider each in turn.
A.     Ability to Present Affirmative Defenses and Jury Instruction
       Brink alleged that he was denied the ability to present the affirmative defenses of
justifiable homicide or self-defense at trial. We first note that this claim could have been raised
on appeal and, therefore, may not be considered in post-conviction proceedings. Further, this
allegation is clearly disproven by the record of the criminal proceedings.            Specifically,
throughout his criminal case, Brink asserted that he shot the victim either because he was
justified in doing so or in self-defense. Brink presented these affirmative defenses through a
number of witnesses at trial and also testified as to these defenses. Indeed, this Court noted in
our opinion affirming Brink’s judgment of conviction that Brink relied on justifiable homicide
and self-defense as the foundation of his defense at trial. See Brink, Docket No. 34391.
       Brink also alleged that the jury was improperly instructed. This claim could have been
raised on appeal and, therefore, may not be considered in post-conviction proceedings. Brink set
forth several other subclaims under the rubric of jury instructions and his alleged inability to
present affirmative defenses. We need not consider Brink’s subclaims because they also could
have been raised on appeal. However, Brink asserted that his trial counsel and appellate counsel
were ineffective for failing “to object to the jury introduction and jury instructions as presented
to the jury.” 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. 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


                                                4
the proceedings would have been different. Id. at 761, 760 P.2d at 1177. Here, even if Brink’s
trial or appellate counsel were deficient for failing “to object to the jury introduction and jury
instructions as presented to the jury,” Brink did not allege facts to establish a reasonable
probability that, had counsel done so, the outcome of the proceedings would have been different.
Thus, Brink did not present evidence making a prima facie case as to each essential element of
these claims and, therefore, such claims were properly dismissed.
B.     Prosecutorial Misconduct
       Brink alleged that the prosecutor engaged in several instances of prosecutorial
misconduct at trial. We note that this Court considered some of Brink’s claims of prosecutorial
misconduct in our opinion affirming Brink’s judgment of conviction.            See Brink, Docket
No. 34391. Thus, such claims may not be considered in post-conviction proceedings. To the
extent that Brink alleged additional claims of prosecutorial misconduct in his petition, such
claims could have been raised on appeal and, therefore, may not be considered in post-conviction
proceedings. Brink also asserted that his trial counsel was ineffective for failing to object to the
alleged instances of prosecutorial misconduct at trial and that his appellate counsel was
ineffective for failing to raise these issues on appeal. However, even if Brink’s trial counsel was
deficient for failing to object to the alleged instances of prosecutorial misconduct at trial, Brink
did not allege facts to establish a reasonable probability that, had trial counsel done so, the
outcome of the proceedings would have been different. Similarly, even if Brink’s appellate
counsel was deficient for failing to raise all of Brink’s allegations of prosecutorial misconduct on
appeal, Brink did not allege facts to establish a reasonable probability that, had appellate counsel
done so, the outcome of the proceedings would have been different. Thus, Brink did not present
evidence making a prima facie case as to each essential element of these claims and, therefore,
the claims were properly dismissed.
C.     Lesser Included Offenses
       Brink raised a constitutional challenge to the way Idaho presents its jury instruction for
consideration of lesser included offenses. Specifically, Brink asserted that instructing the jury
that it must first decide that he was not guilty of first degree murder before it could consider any
of the lesser included offenses violated due process and denied him a fair trial. We first note that
this claim could have been raised on appeal and, therefore, may not be considered in post-
conviction proceedings. Idaho Code Section 19-2132(c) provides that “the court shall instruct


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the jury that it may not consider the lesser included offense unless it has first considered each of
the greater offenses within which it is included, and has concluded in its deliberations that the
defendant is not guilty of each of such greater offenses.”            The party challenging the
constitutionality of a statute must overcome a strong presumption of validity. State v. Hart, 135
Idaho 827, 829, 25 P.3d 850, 852 (2001).         Brink provided no authority in support of his
conclusory allegation that I.C. § 19-2132(c) violates either the federal constitution or the Idaho
constitution. Therefore, Brink’s claim was properly dismissed.
D.     Expert Witness Testimony
       Brink alleged that he was denied expert witnesses at trial due to errors of the district
court. These claims could have been raised on appeal and, therefore, may not be considered in
post-conviction proceedings. Brink set forth several other subclaims under the rubric of expert
witness testimony. However, we need not consider Brink’s subclaims because they also could
have been raised on appeal. Brink also alleged that he was denied a fair trial because there was
no defense expert witness testimony presented regarding forensic evidence, ballistics, or blood
evidence due to ineffective assistance of counsel.       In order to succeed on an ineffective
assistance of counsel claim based on counsel’s failure to procure an expert witness, the accused
must assert facts that would have been discovered by additional investigation and should offer
expert testimony that would have been produced if the expert had been hired. Aeschliman v.
State, 132 Idaho 397, 405, 973 P.2d 749, 757 (Ct. App. 1999). Here, Brink speculated that, had
he been able to present a forensic expert at trial, he could have proven the distance between
Brink and the victim at the time of the shooting. Brink failed to establish the benefit that such
expert testimony would have provided and made no proffer as to what an expert would have
testified to. Accordingly, even if Brink’s counsel was deficient for failing to present expert
witness testimony regarding forensic evidence, ballistics or blood evidence, Brink did not alleged
facts to establish a reasonable probability that, had counsel done so, the outcome of the
proceedings would have been different. Thus, Brink did not present evidence making a prima
facie case as to each essential element of this claim and, therefore, such claim was properly
dismissed.
E.     Ineffective Assistance of Counsel
       Brink alleged thirty instances of ineffective assistance of trial and appellate counsel. All
of these allegations were conclusory and unsupported by admissible evidence. The district court


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was not required to accept such allegations. Additionally, with respect to all of the allegations,
Brink failed to allege facts to establish prejudice and, therefore, did not present evidence making
a prima facie case as to each essential element of these claims. Thus, the claims were properly
dismissed.
                                               IV.
                                        CONCLUSION
       Brink’s claims for post-conviction relief were properly dismissed as either procedurally
barred because they were or could have been raised on appeal or because Brink failed to present
evidence making a prima facie case as to each essential element of his claims. Therefore, the
district court’s judgment summarily dismissing Brink’s petition for post-conviction relief is
affirmed. No costs or attorney fees are awarded on appeal.
       Chief Judge GRATTON and Judge GUTIERREZ, CONCUR.




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