               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 42242

CHRISTOPHER A. PENTICO,                        ) 2015 Opinion No. 63
                                               )
       Petitioner-Appellant,                   ) Filed: October 7, 2015
                                               )
v.                                             ) Stephen W. Kenyon, Clerk
                                               )
STATE OF IDAHO,                                )
                                               )
       Respondent.                             )
                                               )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Michael R. McLaughlin, District Judge. Hon. Kevin Swain,
       Magistrate.

       Order of the district court, on intermediate appeal from the magistrate, affirming
       summary dismissal of petition for post-conviction relief, affirmed.

       Alan E. Trimming, Ada County Public Defender; Heidi M. Johnson, Deputy
       Appellate Public Defender, Boise, for appellant. Heidi M. Johnson argued.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
                 ________________________________________________

MELANSON, Chief Judge
       Christopher A. Pentico appeals from the district court’s order on intermediate appeal
affirming the magistrate’s summary dismissal of Pentico’s petition for post-conviction relief.
For the reasons set forth below, we affirm.
                                               I.
                                 FACTS AND PROCEDURE
       Beginning in 2007, the Idaho Capitol Building closed to the public for renovation and the
Governor’s office was temporarily moved to the third floor of the nearby Borah Building. On
March 25, 2008, an officer stopped Pentico on state property, in the vicinity of the Capitol




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Annex, and informed Pentico that he was no longer authorized to be at the Capitol Annex, the
third and fourth floors of the Borah Building, or the department of education.
       On April 2, 2008, Pentico visited the Governor’s office on the third floor of the Borah
Building. After Pentico left the Borah Building, he was cited for trespass in violation of I.C.
§ 18-7011.1 Months later, the state filed an amended complaint charging Pentico with trespass in
violation of I.C. § 18-7008.2 Pentico was found guilty of trespass and appealed. The district
court and this Court both affirmed Pentico’s judgment of conviction. See State v. Pentico, 151
Idaho 906, 265 P.3d 519 (Ct. App. 2012). Pentico filed a petition for post-conviction relief
claiming ineffective assistance of trial counsel and asserting that I.C. § 18-7008(A)(8) is
unconstitutional. The magistrate dismissed Pentico’s petition. Pentico appealed to the district
court, which affirmed. Pentico again appeals.
                                                II.
                                  STANDARD OF REVIEW
       For an appeal from the district court, sitting in its appellate capacity over a case from the
magistrate division, this Court’s standard of review is the same as expressed by the Idaho
Supreme Court. The Supreme Court reviews the magistrate record to determine whether there is
substantial and competent evidence to support the magistrate’s findings of fact and whether the
magistrate’s conclusions of law follow from those findings. Pelayo v. Pelayo, 154 Idaho 855,
858-59, 303 P.2d 214, 217-18 (2013). If those findings are so supported and the conclusions
following therefrom, and if the district court affirmed the magistrate’s decision, we affirm the
district court’s decision as a matter of procedure. Id. Thus, the appellate courts do not review



1
        Idaho Code Section 18-7011 deals with property enclosed by fences or posted with no
trespassing signs.
2
       Idaho Code Section 18-7008(A) describes acts that constitute a trespass. Subsection (8)
provides a trespass is committed by:

               Every person, except under landlord-tenant relationship, who, being first
       notified in writing, or verbally by the owner or authorized agent or the owner of
       real property, to immediately depart from the same and who refuses to so depart,
       or who, without permission or invitation, returns and enters said property within a
       year, after being so notified.

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the decision of the magistrate. Bailey v. Bailey, 153 Idaho 526, 529, 284 P.3d 970, 973 (2012).
Rather, we are procedurally bound to affirm or dismiss the decisions of the district court. Id.
       A petition for post-conviction relief initiates a proceeding that is civil in nature. I.C.
§ 19-4907; 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. 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 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. 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
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


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inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify
them. Id.
       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
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
A.     Due Process
       Pentico argues that any application of I.C. § 18-7008(A)(8) to a citizen ordered to leave
property that is otherwise held open to the public violates the Due Process Clause of both the
United States and Idaho Constitutions. The Due Process Clauses of the United States and Idaho


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Constitutions forbid the government from depriving an individual of life, liberty, or property
without due process of law. U.S. CONST. amend. XIV; IDAHO CONST. art. I, § 13. To determine
whether an individual’s due process rights under the Fourteenth Amendment have been violated,
courts must engage in a two-step analysis. Bradbury v. Idaho Judicial Council, 136 Idaho 63,
72-73, 28 P.3d 1006, 1015-16 (2001). The Court must first decide whether the individual’s
threatened interest is a liberty or property interest under the Fourteenth Amendment. Id. Only
after a court finds a liberty or property interest will it reach the next step of analysis in which it
determines what process is due. Id. The United States Supreme Court has held that the right to
petition government for a redress of grievance is a liberty interest intimately connected to the
First Amendment. United Mine Workers of America, Dist. 12 v. Illinois State Bar Ass’n, 389
U.S. 217, 222 (1967). Thus, the threshold issue here is whether Pentico has shown that I.C.
§ 18-7008(A)(8) infringes upon a citizen’s First Amendment rights.
        In Virginia v. Hicks, 539 U.S. 113 (2003), a defendant was given notice not to return to
an area that he argued was a public forum. After returning to the area, he was arrested and
charged with trespass. The Supreme Court held, regarding the provision under which Hicks was
arrested:
        Even assuming the [streets of the area] are a public forum, the notice-barment rule
        subjects to arrest those who reenter after trespassing and after being warned not to
        return--regardless of whether, upon their return they seek to engage in speech.
        Neither the basis for the barment sanction (the prior trespass) nor its purpose
        (preventing future trespasses) has anything to do with the First Amendment.
        Punishing its violation by a person who wishes to engage in free speech no more
        implicates the First Amendment than would the punishment of a person who has
        (pursuant to lawful regulation) been banned from a public park for vandalizing it,
        and who ignores the ban in order to take part in a political demonstration. Here,
        as there, it is Hicks’ nonexpressive conduct--his entry in violation of the notice-
        barment rule--not his speech, for which he is punished as a trespasser.

Id. at 123.
        In this case, Pentico has provided evidence that he was attempting to exercise his First
Amendment rights on April 2, 2008, when he was cited for trespassing. However, following the
reasoning from Hicks, we hold that it was Pentico’s nonexpressive conduct--his entry into the
third floor of the Borah Building after receiving notice that he was no longer authorized to be
there--not his speech, for which he was punished as a trespasser. Accordingly, Pentico’s First


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Amendment rights were not infringed when he was charged with trespass for entering the third
floor of the Borah Building to petition the government for redress of his grievances.
       Pentico also challenges the constitutionality of the officer’s March 25 action in which he
was asked to leave and was provided notice that he was being excluded from the various
governmental properties. However, the record contains no admissible evidence that Pentico was
excluded because he attempted to exercise his First Amendment rights. This is so, in part,
because the magistrate granted Pentico’s motion in limine, prohibiting references to other crimes,
wrongs, or acts of Pentico. On a portion of a video recording, the officer referred (outside of
Pentico’s presence) to Pentico as having been “harassing people at the Governor’s office.” This
part of the recording was disregarded by the magistrate at Pentico’s request. At Pentico’s
sentencing, there were references to Pentico having been involved in causing a disturbance at the
department of education and that he had recently become persistent in contacting members of the
Governor’s staff regarding his issue with the department of education. Pentico claimed at oral
argument on this appeal that the inadequate record was due to a failure by the state in the
underlying criminal case. However, Pentico misunderstands the difference between the burdens
in the underlying criminal case versus the burdens in this post-conviction case. This Court has
held that, in a post-conviction case, the petition must present or be accompanied by admissible
evidence supporting its allegations or the petition will be subject to dismissal. Wolf, 152 Idaho at
67, 266 P.3d at 1172. If the underlying criminal case failed to provide admissible evidence to
support Pentico’s petition for post-conviction relief, Pentico could have used the tools of
discovery to obtain the necessary evidence. Specifically, Pentico could have deposed the officer
who notified him that he was banned from the various properties to determine whether he was
banned because he attempted to exercise his First Amendment rights. Without the deposition of
the officer or some other evidence to indicate why Pentico was excluded from the governmental
properties, this Court cannot determine that Pentico had a liberty interest which was infringed by
the officer’s March 25 action. Thus, Pentico has failed to show that he was deprived of due
process when he was excluded from the various governmental properties or when he was
charged with trespass when he returned to petition the government for redress of his grievances.




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B.      Ineffective Assistance of Counsel
        Pentico’s petition for post-conviction relief asserted his trial counsel’s performance was
deficient for failing to argue that Pentico’s March 25 encounter was unconstitutional and, thus,
could not trigger a lawful one-year exclusion. 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 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).
        In support of his petition for post-conviction relief, Pentico submitted affidavits from his
counsel on direct appeal, his trial counsel, and himself. Pentico asserted that the three affidavits
established ineffective assistance of counsel. The magistrate summarily dismissed Pentico’s
ineffective assistance of counsel claim, holding that Pentico failed to meet his burden of
establishing a genuine issue of material fact. In the affidavit of Pentico’s counsel on direct
appeal, the attorney expressed his opinion that Pentico’s trial counsel was ineffective. The
standard for whether an attorney’s performance was deficient is an objective standard. See id.
The affidavit provided by Pentico’s appellate counsel, while informative, only provides one
attorney’s subjective belief that Pentico’s trial counsel’s performance was deficient.         This
affidavit did not, in itself, establish a genuine issue of material fact.
        In the affidavit of Petinco’s trial counsel, trial counsel explained that he “never really
connected to the concept that the trip to the Governor’s office on April 2, 2008, could not itself
be criminalized if the original ‘request to leave’ on March 25, 2008, was itself unconstitutional.”


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This statement provides some evidence that Pentico’s trial counsel’s performance may have been
deficient. However, there are other indications in the record, including Pentico’s affidavit, that
Pentico’s trial counsel understood the relevant law and discussed with Pentico the possibility that
his April 2 acts would not be criminalized if the March 25 request was unconstitutional. Even if
we assume his trial counsel’s performance was deficient, Pentico has failed to show that he was
prejudiced by trial counsel’s deficient performance. Pentico bears the burden of showing that,
but for his trial counsel’s deficient performance, the outcome of the trial would have been
different. See Aragon, 114 Idaho at 760, 760 P.2d at 1176.
       On appeal, Pentico argues that the “unrebutted facts” show that he would have prevailed
on a claim that the government’s actions on March 25 violated his rights. Specifically, Pentico
argues that the one-year exclusion was an unconstitutional prior restraint of his First Amendment
right to free speech. Thus, according to Pentico, had his counsel challenged the March 25 “ask
to leave,” he would have prevailed. Accordingly, Pentico argues that he was prejudiced by his
counsel’s failure to challenge the constitutionality of the government’s actions on March 25.
       The First Amendment prohibits the government from restricting a person’s expression
because of its message, ideas, subject matter, or content. United States v. Alvarez, ___ U.S.___,
___, 132 S. Ct. 2537, 2543 (2012). Reasonable time, place, and manner restrictions are allowed
if justified without reference to the content of regulated speech. R.A.V. v. City of St. Paul, 505
U.S. 377, 386 (1992).      Idaho’s trespass statute is capable of constitutional application to
government-owned nonpublic forums, such as government office buildings, that are not open to
the public for expressive activities. See State v. Pentico, 151 Idaho 906, 913, 265 P.3d 519, 526
(Ct. App. 2011).
       Pentico’s claim of ineffective assistance of counsel fails for the same reason as his due
process claim--he has failed to show that he was excluded because of his exercise of his First
Amendment right. In order for Pentico to succeed in arguing that the government’s actions on
March 25 were a violation of his First Amendment rights, it would have been necessary for
Pentico’s trial counsel to prove that the restriction from the governmental buildings was based on
the content of Pentico’s speech. If Pentico’s trial counsel successfully established that the
restriction was content-based, the restriction would have been “presumed invalid” and the state
would have had the burden of showing constitutionality. Alvarez, ___ U.S. at ___, 132 S. Ct. at


                                                8
2543-44. There is no evidence that Pentico’s trial counsel would have been successful in
meeting his initial burden of proving that the exclusion was based on the content of his speech.
On March 25, Pentico was told that he was excluded from the government buildings as a result
of his behavior, not the content of his speech. In his affidavit, Pentico explained that he was told
that his “behavior was making people nervous and uncomfortable.” Accordingly, Pentico has
failed to show that there is a reasonable probability that the outcome of his trial would have been
different, but for trial counsel’s deficient performance, because Pentico’s trial counsel would
have been unable to prove that Pentico was excluded from the governmental buildings because
of the content of his speech. Therefore, were we to assume deficient performance by Pentico’s
trial counsel, Pentico has not shown that he was prejudiced by the deficient performance.
                                                IV.
                                         CONCLUSION
       Pentico has not shown that I.C. § 18-7008(8) violates the Due Process Clauses of the
United States or Idaho Constitutions. In addition, Pentico has failed to show that he was
prejudiced by his trial counsel’s performance. Therefore, we affirm the district court’s order on
intermediate appeal affirming the magistrate’s summary dismissal of Pentico’s petition for post-
conviction relief. No costs or attorney fees are awarded on appeal.
       Judge GRATTON and Judge Pro Tem LANSING, CONCUR.




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