                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 45525

GARY NICHOLAS BALL,                              )
                                                 )    Filed: July 11, 2019
       Petitioner-Appellant,                     )
                                                 )    Karel A. Lehrman, Clerk
v.                                               )
                                                 )    THIS IS AN UNPUBLISHED
STATE OF IDAHO,                                  )    OPINION AND SHALL NOT
                                                 )    BE CITED AS AUTHORITY
       Respondent.                               )
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Nancy Baskin, District Judge.

       Judgment and order dismissing petition for post-conviction relief, affirmed.

       Gary Nicholas Ball, Eagle Pass, TX, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Judge
       Gary Nicholas Ball appeals from the district court’s final judgment in which the district
court dismissed Ball’s petition for post-conviction relief. Ball claims his trial counsel provided
ineffective assistance, and thus, the district court erred in dismissing Ball’s petition for post-
conviction relief. For the reasons set forth below, we affirm the district court’s final judgment
and order dismissing Ball’s petition for post-conviction relief.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Ball pleaded guilty to felony trafficking in heroin, Idaho Code § 37-2732B(a)(6)(B). The
district court imposed a unified sentence of twenty years, with ten years determinate. Ball
appealed, and this Court affirmed the sentence imposed. State v. Ball, Docket No. 43387 (Ct.
App. Jan. 7, 2016) (unpublished).



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       Ball filed a pro se petition for post-conviction relief. In addition, Ball filed a motion for
appointment of counsel, which the district court granted. The State filed an answer to Ball’s
petition, as well as a motion for summary disposition. Ball made no changes or amendments to
his original petition. The district court held a hearing on the State’s motion for summary
disposition. After the hearing, the district court issued an order granting the State’s motion for
summary dismissal of Ball’s petition for post-conviction relief. The district court also entered a
judgment denying Ball’s petition for post-conviction relief. Ball timely appeals.
                                                II.
                                  STANDARD OF REVIEW
       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 Idaho Rule of Civil
Procedure 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,

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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
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).



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                                                III.
                                           ANALYSIS
       Ball asserts the district court erred in dismissing his petition for post-conviction relief
because Ball’s trial counsel provided ineffective assistance.       Ball argues his trial counsel
provided ineffective assistance for two reasons.1 First, Ball claims his trial counsel should have
filed a motion to suppress and more thoroughly investigated Ball’s arrest. Second, Ball contends
his trial counsel pressured and coerced Ball to plead guilty.2
A.     Ball’s Trial Counsel Was Not Required to File a Motion to Suppress or Engage in
       Additional Investigation Regarding the Arrest
       Ball sold heroin to a confidential informant on September 9, 2014, and on October 16,
2014. An officer arrested Ball on October 22, 2014, for making the two prior sales. Ball
contends he was arrested illegally because no crimes occurred in the officer’s presence on
October 22. According to Ball, the officer did not have probable cause to make an arrest because
the officer did not witness the crimes committed on September 9 and October 16. Ball claims
that, due to the illegal arrest, his trial counsel was ineffective because he should have filed a
motion to suppress.
       In a post-conviction proceeding challenging an attorney’s failure to pursue a motion in
the underlying criminal action, the district 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,
1
        In his petition, Ball also asserted that appellate counsel failed to raise issues that Ball
asked appellate counsel to raise. A party waives an issue on appeal if either argument or
authority is lacking. Powell v. Sellers, 130 Idaho 122, 128, 937 P.2d 434, 440 (Ct. App. 1997).
Ball does not challenge the district court’s dismissal of this claim on appeal, and thus, Ball has
waived any claim of error.
2
        In his reply brief, Ball argues his due process rights were violated when he was denied
the right to appeal, relying on the United States Supreme Court ruling in Garza v. Idaho, 586
U.S. ___, 139 S. Ct. 738 (2019). Despite his plea agreement, in which Ball waived several of his
constitutional rights, and the guilty plea itself, Ball contends he has the right to directly appeal
any unchallenged claims pursuant to Garza. In Garza, trial counsel refused to file a notice of
appeal despite the defendant’s express instructions. Garza, 586 U.S. at ___, 139 S. Ct. at 743.
The Court narrowly ruled that trial counsel must file a notice of appeal even when the defendant
waives his rights to an appeal. Id. at ___, 139 S. Ct. at 746. The Court did not address the
validity of the guilty plea as a waiver of issues. Here, Ball filed a notice of appeal, and thus,
Garza is inapposite to this case.
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would not have been granted by the trial court, is generally determinative of both prongs of the
Strickland test.3 Lint, 145 Idaho at 477-78, 180 P.3d at 516-17.
       Ball asserts that he asked trial counsel to file a motion to suppress, but counsel refused.
The failure to file the motion, according to Ball, eliminated any reasonable opportunity for a
defense. Ball takes issue with the officer’s affidavit, which explained there was no controlled
purchase of narcotics on the day Ball was arrested. The district court addressed these claims at
length. The district court concluded that Ball failed to establish any probability that a motion to
suppress would have been successful, and thus, could not establish deficient performance by trial
counsel. In its opinion, the district court disagreed with Ball that the arrest was illegal because
no crime occurred in the officer’s presence. The district court explained the officer’s affidavit
did not state--as Ball claimed--that Ball committed a crime in the officer’s presence. Rather, the
probable cause in the case arose from two prior sales that Ball made to a confidential informant.
In addition, the district court determined Ball’s trial counsel conceded at the hearing that under
Idaho law, an officer need not be present at the commission of a felony for an officer to
subsequently arrest a person for that alleged felony.
       Ball has not shown error in the district court’s analysis. Ball fails to address the district
court’s correct conclusion that information from a confidential informant is a sufficient ground
for arrest. Ball also fails to account for the concession made at the hearing that an officer does
not need to be present at the commission of a felony in order to have probable cause to later
arrest an individual for committing that felony. On appeal, Ball repeats his earlier claims that his
arrest was illegal because the officer did not have probable cause to make an arrest. However,
this position fails to account for the district court’s analysis, which explained why the motion to
suppress would not have been granted, even if Ball’s trial counsel filed the motion. Because the
officer had probable cause to lawfully arrest Ball, there were no grounds upon which the district
court would have granted a motion to suppress. See I.C. § 19-603 (2017). Thus, Ball’s trial
counsel was not ineffective for failing to file the motion.
       Ball also suggests that his trial counsel was ineffective for failing to conduct an
investigation into the arrest. Determining whether an attorney’s pretrial preparation falls below a


3
        To prevail on an ineffective assistance of counsel claim, a petitioner must show, first, that
the attorney’s performance was deficient and, second, that the petitioner was prejudiced by the
deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
                                                  5
level of reasonable performance constitutes a question of law, but is essentially premised upon
the circumstances surrounding the attorney’s investigation. Thomas v. State, 145 Idaho 765, 769,
185 P.3d 921, 925 (Ct. App. 2008). To prevail on a claim that counsel’s performance was
deficient, a petitioner must establish that the inadequacies complained of would have made a
difference in the outcome of the trial. It is not sufficient merely to allege that counsel may have
discovered a weakness in the State’s case. We will not second-guess trial counsel in the
particularities of trial preparation. Id.
        Ball has not shown his trial counsel’s preparation fell below a level of reasonable
performance. There is no evidence in the record that demonstrates what Ball’s trial counsel
failed to investigate or how the lack of investigation would have changed the outcome of the
trial. Without more, we cannot say trial counsel was ineffective for failing to investigate the
arrest. The district court therefore did not err when it found that Ball failed to demonstrate
deficient performance by his trial counsel.
B.      Trial Counsel Did Not Coerce Ball to Plead Guilty
        In the order granting the State’s motion for summary disposition, the district court
provided several reasons why Ball’s guilty plea was not coerced. First, on the guilty plea
advisory form, Ball answered that he freely and voluntarily entered the plea. Second, when he
was placed under oath and answered questions as to the plea at the plea hearing, Ball made no
allegation that his guilty plea was involuntary. Thus, the district court found the record showed
that Ball’s guilty plea was knowing, voluntary, and intelligent.
        On appeal, Ball argues his trial counsel pressured and coerced Ball into accepting the
State’s plea deal. However, Ball fails to show how the district court erred. Ball presents no
evidence of coercion and offers no reason why his guilty plea was not knowing, voluntary, or
intelligent. There is no evidence in the appellate record to support Ball’s argument on appeal.
The transcript from the plea hearing contains Ball’s discussion with the judge regarding his
guilty plea. While under oath, Ball admitted he filled out the guilty plea form, had no questions
for trial counsel, signed the form, answered truthfully, and understood the consequences of
entering the guilty plea and the terms of the plea agreement. On the guilty plea form, Ball
answered that he understood that no one could force him to plead guilty and that he entered the
plea freely and voluntarily. The record therefore does not support Ball’s claim that he was
coerced to plead guilty.

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                                                 IV.
                                          CONCLUSION
       For the reasons set forth above, we affirm the district court’s final judgment and order
dismissing Ball’s petition for post-conviction relief.
       Chief Judge GRATTON and Judge BRAILSFORD CONCUR.




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