               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 40600

JAMES NEIL MOEN,                                 )      2014 Unpublished Opinion No. 768
                                                 )
       Petitioner-Appellant,                     )      Filed: October 15, 2014
                                                 )
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STATE OF IDAHO,                                  )      THIS IS AN UNPUBLISHED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 First Judicial District, State of Idaho,
       Kootenai County. Hon. Michael J. Griffin, District Judge.

       Judgment of the district court summarily dismissing amended petition for post-
       conviction relief, affirmed in part, reversed in part, and case remanded.

       Nevin, Benjamin, McKay & Bartlett, LLP; Robyn A. Fyffe, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Chief Judge
       James Neil Moen appeals from the judgment of the district court summarily dismissing
his amended petition for post-conviction relief. For the reasons that follow, we affirm in part,
reverse in part, and remand.
                                                I.
                                 FACTS AND PROCEDURE
       This post-conviction action arises out of Moen’s conviction for felony driving under the
influence. As part of a plea agreement, Moen pled guilty to felony driving under the influence
and was sentenced to a unified term of eight years, with three years determinate. 1 The trial court


1
        According to the parties’ briefing, the plea agreement dismissed a persistent violator
allegation and reduced a domestic battery charge to misdemeanor battery. Although the facts in
the briefing are quite detailed, the record that was properly before the district court, and thus
properly before this Court, contains little background information, save for the judgment of
conviction. For instance, Moen’s appellate brief contains more than twenty-five pages of facts,

                                                1
retained jurisdiction for 180 days and stated in its judgment of conviction that it strongly
recommended Moen participate in “A New Directions” program and that “Level A” be used. 2
The judgment of conviction further stated that “attention should be paid by the Department of
Correction to the applicable mental health condition ___,” and the judge wrote, “Please provide a
mental health evaluation.” After several continuances, the court conducted a jurisdictional
review hearing. The court relinquished jurisdiction and modified Moen’s sentence to a unified
term of eight years, with one-and-a-half years determinate.
       Moen then filed a pro se Rule 35 motion for reduction of his sentence. Among other
things, Moen alleged that his mental health issues were not addressed or taken into consideration
during sentencing. Moen also filed a request for appointment of counsel. The trial court denied
Moen’s motion for reduction of sentence after determining that it was meritless, and therefore
found that the appointment of counsel was unnecessary. Moen appealed that decision, and we
affirmed in State v. Moen, Docket No. 35907 (Ct. App. Oct. 15, 2010) (unpublished). In part, we
discussed Moen’s claim that his mental health issues were not addressed or taken into
consideration:
       At the sentencing hearing, Moen submitted a competency evaluation and a
       substance abuse assessment for the district court’s consideration.               The
       competency evaluation provided diagnoses of adjustment disorder with anxiety
       and personality disorder with antisocial and narcissistic features, and the
       assessment provided that Moen had indications of mental health problems. The
       competency evaluation also explained that Moen acts out antisocially and has
       difficulty coping with the legal system when he does not get his way. At the
       jurisdictional review hearing, the district court inquired whether Moen had the
       resources to obtain a psychological evaluation. After Moen’s counsel stated that
       it was likely that an evaluation could be accomplished, the district court continued
       the hearing. At the continued hearing, Moen requested another continuance so
       that he could complete a psychological evaluation, which the district court
       granted. However, when the hearing was finally held, Moen proceeded despite
       the fact that no evaluation had been accomplished. Moen has failed to show that
       the district court did not take into consideration his mental issues.

Moen, Docket No. 35907 (footnote omitted).




including several pages that cite to transcripts and block quotations that are not part of the record
before this Court.
2
       It is not clear from the record what Level A is, but presumably it is a level of treatment.

                                                 2
       After we affirmed the denial of his Rule 35 motion, Moen filed a pro se petition for post-
conviction relief, alleging judicial misconduct and ineffective assistance of defense counsel and
appellate counsel.    Moen also moved the court to appoint counsel, and the district court
subsequently appointed the public defender to represent Moen. Although Moen was represented,
he attempted to file numerous documents, motions, and letters with the court. Subsequently,
counsel filed an amended petition 3 on Moen’s behalf. The amended petition alleged ineffective
assistance of defense counsel, alleged that Moen was denied procedural due process by the court
refusing to obtain a psychological evaluation prior to sentencing and prior to the jurisdictional
review hearing, and alleged that Moen was denied procedural due process when the court
permitted the State to prosecute Moen upon an information, rather than an indictment. Even
after the amended petition was filed and although he was represented by the public defender’s
office, Moen continued to send documents to the district court.
       In the course of proceedings below, three public defenders represented Moen. The last
public defender moved to withdraw and, following a hearing, the court announced that it would
grant the third attorney’s motion to withdraw, but the judge stated that he wanted to take a fresh
look at Moen’s post-conviction petition.
       Two weeks after the hearing, the district court filed a notice of intent to dismiss 4 that
generally determined that the amended petition contained unsubstantiated, conclusory allegations
and did not contain evidence sufficient to support any ground for relief. 5 On the same day, the



3
        The amended petition was referred to as a supplemental petition by Moen’s attorney.
However, supplemental pleadings “set[] forth transactions or occurrences or events which have
happened since the date of the pleading sought to be supplemented, whether or not the original
pleading is defective in its statement of a claim for relief.” Idaho Rule of Civil Procedure 15(d).
The pleading filed by Moen’s attorney addresses the original transaction or occurrence in the
pro se petition and is, instead, an amended pleading. See I.R.C.P. 15(a). Moreover, throughout
the proceedings below, the district court treated the “supplemental petition” as an amended
pleading, and Moen did not object to the district court’s treatment of the “supplemental petition.”
4
       Although the State filed a motion to dismiss, the district court’s notice of intent to dismiss
was not based upon the State’s motion.
5
       The district court’s notice of intent contained other grounds and further discussion that
was not reiterated in the order summarily dismissing Moen’s amended petition for post-
conviction relief.


                                                 3
district court also filed an order allowing the third attorney to withdraw. Coincidentally, a
“Motion for Rehearing on Summary Disposition to Preserve Thirty Constitutional Violations in
P.C.R. that Attorney Failed to do” was file stamped on the same day, although it had been signed
by Moen and presumably sent while Moen was still represented. The district court entered an
order, also on the same day, denying that motion. In the order the court noted, “There has been
no hearing on the State’s motion for summary disposition,” and further stated, “The only matter
pending before the court is the Notice of Intent to Dismiss which the petitioner has not yet
replied to.”
        Moen moved for re-appointment of counsel and filed a “Motion to Dismiss Prosecutions
‘Notice of Intent to Dismiss’ and Moves for Evidentiary Hearing.” Additionally, Moen filed an
affidavit that set forth various accusations and listed issues, exhibits, and citations to various
legal sources. 6 The district court then denied Moen’s motion for appointment of counsel, finding
that an attorney would not assist Moen in presenting a valid claim. Subsequently, the court
ordered Moen’s amended petition for post-conviction relief be summarily dismissed because
Moen failed to state grounds upon which relief could be granted. The court noted that Moen
filed additional documents, but it determined that Moen did not produce admissible evidence to
support his claims for post-conviction relief. Moen appeals.
                                                II.
                                   STANDARD OF REVIEW
        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 Idaho Rule of Civil


6
         For example, the affidavit stated, “The Petitioner accuses the State of Idaho of (ignoring)
all the fact and support State and federal laws that are in the Petitioner[’]s argument that proves
the State is and has violated the Petitioner[’]s right of the constitution.”

                                                 4
Procedure 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
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.”            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
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


                                                  5
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,
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).
                                               III.
                                           ANALYSIS
       In this appeal, we address numerous arguments raised by Moen in his voluminous,
seventy-eight-page opening appellate brief. We begin by addressing Moen’s arguments that the
district court denied him a meaningful opportunity to present his post-conviction claims; refused
to address the various issues that Moen raised in his pro se filings during the time he was
represented by counsel; and violated his right to due process by, sua sponte and without prior


                                                6
notice, dismissing several claims raised by him, including claims that he raised in his pro se
filings.     We then turn to Moen’s argument that the district court erred by not appointing
replacement counsel. Because we must consider whether Moen alleged facts that raised the
possibility of a valid claim, we concurrently address Moen’s remaining issue of whether the
district court erred by summarily dismissing his amended petition for post-conviction relief.
A.         Opportunity to Present Claims, Pro Se Filings, and Notice of Intent to Dismiss
           Moen contends that the district court violated his right to due process by denying him a
meaningful opportunity to present his post-conviction claims. Moen argues that he was denied
due process when the district court initially did not accept or file the first post-conviction petition
he attempted to file. This claim is now moot because the district court subsequently accepted
and filed the pro se post-conviction petition.
           Moen also claims that the district court refused to address the various issues that he raised
in his pro se filings during the time he was represented by counsel. When a party is represented,
every pleading, motion, or other paper filed on behalf of the party must be signed by an Idaho
licensed attorney.      I.R.C.P. 11(a)(1) (“Every pleading, motion, and other paper of a party
represented by an attorney shall be signed by at least one (1) licensed attorney of record of the
state of Idaho, in the attorney’s individual name, whose address shall be stated before the same
may be filed.”). As the Pennsylvania Supreme Court articulated, “We will not require courts
considering [post-conviction] petitions to struggle through the pro se filings of defendants when
qualified counsel represent those defendants.” Commonwealth v. Pursell, 724 A.2d 293, 302
(Pa. 1999); accord Commonwealth v. Ellis, 626 A.2d 1137, 1141 (Pa. 1993) (“[A defendant may
not] confuse and overburden the court by his own pro se filings of briefs at the same time his
counsel is filing briefs on his behalf.”). Accordingly, the district court did not deny Moen due
process by not considering the pro se filings by Moen while he was represented.
           Moen next maintains that the district court violated his right to due process by, sua sponte
and without prior notice, dismissing several claims raised by him, including claims that he raised
in his pro se filings. The State contends that Moen was provided the notice he was due. Here,
the notice of intent informed Moen that the amended petition was “not supported by evidence
which would raise a genuine material issue of fact regarding any of the claims for relief set forth
in the [amended] petition.” (Emphasis added.) Whether this notice of intent was sufficient is an
issue that we may not address on appeal because Moen did not raise it before the district court.


                                                    7
See Kelly, 149 Idaho at 522, 236 P.3d at 1282 (“Clearly, the State’s [motion for summary
dismissal] gave Kelly notice of the ground on which this claim was dismissed, irrespective of
whether that notice was sufficient (an issue Kelly waived by failing to raise it before the district
court) it was notice nonetheless.”). Additionally, as we discussed above, the district court was
not bound to consider Moen’s pro se filings.
B.     Refusal to Appoint Replacement Counsel and Summary Dismissal
       We now turn to the issue of whether the district court abused its discretion when it
refused to appoint replacement counsel. The State argues that Moen had the benefit of at least
two attorneys, that Moen’s claims are frivolous or meritless, and that Moen’s rights are limited
by the statute providing for the right to counsel. If a post-conviction petitioner is unable to pay
for the expenses of representation, the trial court may appoint counsel to represent the petitioner
in preparing the petition, in the trial court, and on appeal. I.C. § 19-4904. The decision to grant
or deny a request for court-appointed counsel lies within the discretion of the district court.
Charboneau, 140 Idaho at 792, 102 P.3d at 1111. When a district court is presented with a
request for appointed counsel, the court must address this request before ruling on the
substantive issues in the case. Id.; Fox v. State, 129 Idaho 881, 885, 934 P.2d 947, 951 (Ct. App.
1997). The district court abuses its discretion where it fails to determine whether a petitioner for
post-conviction relief is entitled to court-appointed counsel before denying the petition on the
merits. See Charboneau, 140 Idaho at 793, 102 P.3d at 1112.
       In determining whether to appoint counsel pursuant to section 19-4904, the district court
should determine if the petitioner is able to afford counsel and whether the situation is one in
which counsel should be appointed to assist the petitioner. Charboneau, 140 Idaho at 792, 102
P.3d at 1111. In its analysis, the district court should consider that petitions filed by a pro se
petitioner may be conclusory and incomplete. See id. at 792-93, 102 P.3d at 1111-12. Facts
sufficient to state a claim may not be alleged because they do not exist or because the pro se
petitioner does not know the essential elements of a claim. Id. Some claims are so patently
frivolous that they could not be developed into viable claims even with the assistance of counsel.
Newman v. State, 140 Idaho 491, 493, 95 P.3d 642, 644 (Ct. App. 2004). However, if a
petitioner alleges facts that raise the possibility of a valid claim, the district court should appoint
counsel in order to give the petitioner an opportunity to work with counsel and properly allege
the necessary supporting facts. Charboneau, 140 Idaho at 793, 102 P.3d at 1112.


                                                  8
       When a district court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi-tiered inquiry to determine: (1) whether the lower court correctly perceived the
issue as one of discretion; (2) whether the lower court acted within the boundaries of such
discretion and consistently with any legal standards applicable to the specific choices before it;
and (3) whether the court reached its decision by an exercise of reason. Sun Valley Shopping
Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991).
       Because in addressing the issue of appointment of replacement counsel we must
determine whether Moen’s amended petition alleged facts that raised the possibility of a valid
claim, we concurrently address Moen’s argument that the court erred by summarily dismissing
his amended petition for post-conviction relief. Moen contends that he raised a genuine issue of
material fact on several issues, including whether (1) he was entitled to relief due to the trial
court’s failure to sua sponte order a psychological evaluation for sentencing and its decision to
proceed with the jurisdictional review hearing notwithstanding the unavailability of the
scheduled psychological evaluation and other supporting documentation; (2) Moen’s right to due
process was violated when the trial court accepted Moen’s plea; (3) the trial court violated his
right to a fair tribunal; (4) the State violated Moen’s substantial right to be tried on charges
presented in an indictment returned by a grand jury; and (5) defense counsel provided ineffective
assistance of counsel. We address these claims in turn.
       1.      Failure to sua sponte order a psychological evaluation
       Moen claims he raised a genuine issue of material fact as to whether the trial court
violated his right to due process by failing to sua sponte order a psychological evaluation prior to
sentencing and by proceeding with a jurisdictional review hearing without a psychological
evaluation. At sentencing, procedural due process requires that “(1) the defendant must be
afforded a full opportunity to present favorable evidence; (2) the defendant must be given a
reasonable opportunity to examine all materials contained in the presentence report; and (3) the
defendant must be afforded a full opportunity to explain and rebut adverse evidence.” State v.
Gain, 140 Idaho 170, 174-75, 90 P.3d 920, 924-25 (Ct. App. 2004) (citing State v. Morgan, 109
Idaho 1040, 1043, 712 P.2d 741, 744 (Ct. App. 1985)); see also State v. Moore, 93 Idaho 14, 17,
454 P.2d 51, 54 (1969) (discussing procedural due process in both probation application and
probation revocation proceedings).




                                                 9
       Relevant to this appeal, Idaho Code § 19-2522 requires a trial court to appoint at least one
psychiatrist or licensed psychologist to examine and report upon the mental condition of the
defendant “[i]f there is reason to believe the mental condition of the defendant will be a
significant factor at sentencing and for good cause shown.” I.C. § 19-2522(1); accord State v.
Coonts, 137 Idaho 150, 152, 44 P.3d 1205, 1207 (Ct. App. 2002) (“The language of this statute is
mandatory, requiring that the trial court obtain a psychological evaluation whenever there is
reason to believe that the defendant’s mental condition will be of significance for the
determination of an appropriate sentence.”). Under certain conditions, a court may consider a
previously conducted mental health examination instead of ordering a new evaluation. I.C. § 19-
2522(6). If a court orders an evaluation under Idaho Code § 19-2522(1), the evaluation must be
conducted before sentencing. Coonts, 137 Idaho at 153, 44 P.3d at 1208. A court-ordered
psychological evaluation completed during a period of retained jurisdiction does not satisfy
section 19-2522(1)’s requirement that the evaluation be completed before sentencing. State v.
Jockumsen, 148 Idaho 817, 823, 229 P.3d 1179, 1185 (Ct. App. 2010); State v. Banbury, 145
Idaho 265, 269, 178 P.3d 630, 634 (Ct. App. 2007).
       In Moen’s amended petition for post-conviction relief, Moen contended that the trial
court denied him procedural due process by not sua sponte ordering a psychological evaluation
prior to sentencing and prior to relinquishing jurisdiction. When the trial court failed to sua
sponte order a psychological evaluation before sentencing, Moen argues that he was deprived of
a full opportunity to present favorable evidence and to explain and rebut adverse evidence.
Similarly, when the trial court relinquished jurisdiction without a psychological evaluation,
Moen contends that he was prevented from providing mitigating information and from rebutting
adverse information. The State contends that Moen was given an opportunity to examine and
respond to the psychological evidence presented at sentencing and to provide additional
psychological evidence. In addition, the State asserts that Moen’s argument contending that the
trial court was required to sua sponte order a psychological evaluation is frivolous.
       We are persuaded that the district court did not err by summarily dismissing this claim.
The heart of Moen’s argument on appeal is that the trial court’s failure to sua sponte order an
evaluation before sentencing violated Moen’s constitutional right to due process. This argument
has been rejected by the Idaho Supreme Court. State v. Clinton, 155 Idaho 271, 273, 311 P.3d
283, 285 (2013) (“Because the district court’s failure to sua sponte order the evaluation did not


                                                10
violate a constitutional right, it does not constitute a fundamental error that is reviewable on
appeal.”). Additionally, Moen’s argument that he was denied due process at the jurisdictional
review hearing is contravened by State v. Coassolo, 136 Idaho 138, 143, 30 P.3d 293, 298 (2001)
(concluding that no constitutionally protected liberty interest exists at a jurisdictional review
hearing). Because Moen did not allege facts that raised the possibility of a valid claim, the
district court did not abuse its discretion by not appointing replacement counsel to assist Moen
with this claim.
       2.        Acceptance of the guilty plea
       Moen next contends that he raised a genuine issue of material fact as to whether the trial
court violated his right to due process by accepting an involuntary and unintelligent plea.
Additionally, Moen argues that he raised a genuine issue of material fact as to whether the trial
court violated his right to due process by imposing additional conditions to the plea agreement
with which he could not comply. We do not consider these issues on appeal because the issues
were not raised in the amended petition and were not considered by the district court. See
Sanchez v. Arave, 120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991) (explaining that, generally,
issues not raised below may not be considered for the first time on appeal). Because Moen did
not allege facts that raised the possibility of valid claims in his amended petition, the district
court did not abuse its discretion by not appointing replacement counsel to assist Moen with
these claims.
       3.        Fair tribunal
       Moen also claims that he raised a genuine issue of material fact as to whether he was
denied a fair tribunal. We do not consider this issue on appeal because the issue was not raised
in the amended petition and was not considered by the district court. See id. (explaining that,
generally, issues not raised below may not be considered for the first time on appeal). Because
Moen did not allege facts that raised the possibility of a valid claim in his amended petition, the
district court did not abuse its discretion by not appointing replacement counsel to assist Moen
with this claim.
       4.        Grand jury
       Moen asserts that he raised a genuine issue of material fact as to whether the State
violated a substantial right by trying him via an information rather than by a grand jury
indictment.     According to Moen, McDonald v. Chicago, 561 U.S. 742 (2010), revised the


                                                 11
analysis used by the United States Supreme Court in Hurtado v. California, 110 U.S. 516 (1884),
and application of the McDonald standard to the right to be indicted by a grand jury establishes
that the right applies to the states via the Fourteenth Amendment. Citing Hurtado, the State
argues that the claim is frivolous, contending that Moen did not have a federal constitutional
right to a grand jury indictment in a state court criminal proceeding. We agree with the State that
Moen’s argument, which fills more than two pages in Moen’s brief, is frivolous. McDonald did
not purport to change Hurtado, and it is well established that the State may proceed by
indictment or information. Warren v. Craven, 152 Idaho 327, 330, 271 P.3d 725, 728 (Ct. App.
2012). Accordingly, the district court did not err by summarily dismissing this claim. Moreover,
because Moen did not allege facts that raised the possibility of a valid claim, the district court did
not abuse its discretion by not appointing counsel to assist Moen with this claim.
       5.      Ineffective assistance of counsel
       Moen next claims he raised a genuine issue of material fact as to whether his defense
counsel provided ineffective assistance of counsel. 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 v. State, 144 Idaho 433, 442, 163 P.3d 222, 231 (Ct. App. 2007). Where,
as here, the petitioner was convicted upon a guilty plea, to satisfy the prejudice element, the
petitioner must show that there is a reasonable probability that, but for counsel’s errors, he or she
would not have pled guilty and would have insisted on going to trial. Plant v. State, 143 Idaho
758, 762, 152 P.3d 629, 633 (Ct. App. 2006). 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).




                                                 12
               a.     Guilty plea
       Moen asserts that he raised a genuine issue of material fact as to whether he received
ineffective assistance of counsel during plea negotiations and entry of the plea. Although
Moen’s pro se petition asserted that “Petitioner claims he was coerced, threaten[ed] and
intimidated by counsel with acts of misconduct on all parties if [a] guilty plea was not entered,”
this issue was not raised in the amended petition. We do not consider this issue on appeal
because the issue was not raised in the amended petition and was not considered by the district
court. See Sanchez, 120 Idaho at 322, 815 P.2d at 1062. Because Moen did not allege facts that
raised the possibility of a valid claim, the district court did not abuse its discretion by not
appointing counsel to assist Moen with this claim.
               b.     Psychological evaluation
       In his amended petition, Moen asserted that his attorney at sentencing provided
ineffective assistance of counsel by not requesting an Idaho Code § 19-2522 mental health
evaluation before or at sentencing. Specifically, Moen averred that his defense counsel at
sentencing had an Idaho Code § 18-211 report concerning Moen’s fitness to proceed at trial
which “diagnosed [him] as having personality disorder and adjustment disorder with narcissistic
and antisocial features.” Moen also asserted that defense counsel at sentencing had a substance
abuse assessment and mental health screening. According to the amended petition, Moen’s
defense counsel referred to both reports when she requested that the Department of Correction
perform a mental health evaluation. Thus Moen asserted that defense counsel at sentencing was
deficient for failing to seek an Idaho Code § 19-2522 presentence mental health evaluation and
that he was prejudiced.
       Although the facts alleged in the amended petition do not fully establish the existence of
this claim, they do at least raise the possibility of it. See Charboneau, 140 Idaho at 793, 102
P.3d at 1112. Another attorney may assist Moen to develop this claim by presenting additional
facts, including the transcripts, to help develop this claim. See Plant, 143 Idaho at 762, 152 P.3d
at 633 (“Admittedly, [Plant’s] allegations do not state particular facts upon which Plant premises
his contention that there was a violation of the Fourth Amendment knock and announce rule or
Idaho’s knock and announce statute, I.C. § 19-4409, but it is possible that with the assistance of
counsel, such facts could be presented.”). Accordingly, the district court abused its discretion by
denying Moen’s request for appointment of replacement counsel. Because the district court


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should have appointed replacement counsel to assist Moen with the development of this claim,
we reverse the judgment summarily dismissing the amended petition and remand the case to the
district court to appoint counsel to assist Moen in developing the ineffective assistance of
counsel claim concerning the psychological evaluation for sentencing purposes.
       Similarly, in his amended petition, Moen asserted that his attorney at the jurisdictional
review hearing provided ineffective assistance of counsel by not requesting an I.C. § 19-2522
psychological evaluation. However, our case law instructs that a court-ordered psychological
evaluation completed during a period of retained jurisdiction does not satisfy section 19-
2522(1)’s requirement that the evaluation be completed before sentencing. Jockumsen, 148
Idaho at 823, 229 P.3d at 1185; Banbury, 145 Idaho at 269, 178 P.3d at 634. For this reason, an
attorney representing a client after sentencing but before the retained jurisdiction hearing does
not provide deficient performance when the attorney does not seek a section 19-2522 mental
health evaluation. Accordingly, the district court did not err by summarily dismissing this claim.
Because Moen did not allege facts that raised the possibility of a valid claim in his amended
petition, the district court did not abuse its discretion by not appointing replacement counsel to
assist Moen with this claim.
       6.      Other claims
       In his opening appellate brief, Moen utilizes ten pages to list and analyze several claims
that he asserts could have been raised had replacement counsel been appointed. These claims
were not raised in the pro se petition or amended petition. Because Moen did not allege facts
that raised the possibility of these claims in his amended petition and because Moen did not
explain in his amended petition why affidavits, records, or other evidence supporting these
claims were not included, I.C. § 19-4903, the district court did not abuse its discretion in not
appointing replacement counsel to assist Moen with these claims.
       As an aside, we remind counsel that Idaho Appellate Rule 11.2(a) specifies that an
attorney’s signature on an appellate brief filed in this State certifies that the brief “is well
grounded in fact and is warranted by existing law or a good faith argument for the extension,
modification, or reversal of existing law.” In criminal appeals, attorneys may be required to
submit a brief, even if the brief raises frivolous issues. See State v. McKenney, 98 Idaho 551,
552, 568 P.2d 1213, 1214 (1977) (per curiam) (rejecting the Anders v. California, 386 U.S. 739
(1967) approach, and holding, “that once counsel is appointed to represent an indigent client


                                               14
during appeal on a criminal case, no withdrawal will thereafter be permitted on the basis that the
appeal is frivolous or lacks merit”). However, post-conviction appeals are civil in nature, see
I.C. § 19-4907; Yakovac, 145 Idaho at 443, 180 P.3d at 482, and are not subject to McKenney.
Idaho Appellate Rule 11.2(a) authorizes this Court to “impose upon the person who signed it, a
represented party, or both, an appropriate sanction, which may include an order to pay to the
other party or parties the amount of the reasonable expenses incurred because of the filing of [the
document] including a reasonable attorney’s fee.” A great many of the claims of error raised in
this appeal were frivolous either because they were moot or not raised in either the original or
amended petition, or because they were utterly without support in the law or a good faith
argument for modification of the law.
                                               III.
                                        CONCLUSION
         We conclude that Moen’s argument that the district court denied him a meaningful
opportunity to present his post-conviction claims is moot. We also conclude that the district
court did not abuse its discretion by not considering the pro se filings by Moen while he was
represented. We further conclude that the district court did not violate Moen’s right to due
process by dismissing several post-conviction claims sua sponte and without notice. To the
contrary, the district court gave Moen notice that his claims were not supported by admissible
evidence that would raise a genuine issue of material fact for any of the claims raised by Moen,
and the sufficiency of the notice may not be challenged on appeal because Moen did not object
below.
         As to Moen’s contention that the court erred by failing to appoint replacement counsel,
we conclude that Moen’s amended petition failed to allege facts raising the possibility of a valid
claim except for the claim of ineffective assistance of counsel concerning the psychological
evaluation for sentencing purposes.     The district court should have appointed replacement
counsel to assist Moen with this claim. Accordingly, we affirm in part and reverse in part the
judgment of the district court summarily dismissing Moen’s amended petition and remand for
further proceedings consistent with this opinion.
         Judge MELANSON CONCURS.
         Judge LANSING CONCURS IN THE RESULT.




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