               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 43008

NATHAN MICHAEL VOLK,                             )    2017 Unpublished Opinion No. 339
                                                 )
       Petitioner-Appellant,                     )    Filed: January 31, 2017
                                                 )
v.                                               )    Stephen W. Kenyon, Clerk
                                                 )
STATE OF IDAHO,                                  )    THIS IS AN UNPUBLISHED
                                                 )    OPINION AND SHALL NOT
       Respondent.                               )    BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Molly J. Huskey, District Judge.

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

       Nathan M. Volk, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GRATTON, Chief Judge
       Nathan Michael Volk appeals from the district court’s judgment summarily dismissing
his petition for post-conviction relief. We affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Volk pled guilty to sexual battery of a minor child sixteen or seventeen years of age,
Idaho Code § 18-1508A. Prior to his arrest, a telephone call between Volk and the victim, V.S.,
was recorded by the Canyon County Sheriff’s office in which Volk discussed with V.S. their
sexual history. Volk was sentenced to a unified term of twenty-five years with five years
determinate.   Volk subsequently filed an Idaho Criminal Rule 35 motion for reduction of
sentence which was denied. No appeal was filed. Thereafter, Volk filed a pro se petition for
post-conviction relief. Volk then filed an amended petition, also pro se, which expanded upon
the issue addressed in the original petition, but did not add any new claims. Counsel was

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appointed but later permitted to withdraw pursuant to Volk’s wishes. Volk then filed a motion to
amend the petition to add additional claims. At a subsequent hearing, the State indicated that it
had no objection, and the district court allowed the amended petition.
       In his second amended petition,1 Volk made several allegations. The only claim relevant
to this appeal is an allegation of ineffective assistance of trial counsel for failure to move to
suppress evidence from the recorded telephone call between Volk and V.S. The State filed an
answer to the amended petition and also filed a motion for summary dismissal. After holding a
hearing on the State’s motion for summary dismissal, the district court entered an order
dismissing Volk’s post-conviction petition with prejudice.
                                                 II.
                                            ANALYSIS
       Volk asserts the district court erred in summarily dismissing his petition with respect to
the claim that his trial counsel was ineffective for failing to file a motion to suppress the recorded
telephone call between himself and V.S.          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



1
         The second amended petition was not verified and therefore, not properly before the
district court. However, since the issues were virtually identical between the amended petition
and the original petition, the district court considered the issues raised in the second amended
petition.
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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
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

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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).
       The district court held that Volk failed to establish a probable basis for suppression of the
telephone call. First, the district court determined there was no legal impediment to the officer
listening to the phone call. Further, the district court stated that Volk’s argument that foundation
could not be established under Idaho Rule of Evidence 901, which outlines the requirement of
authentication or identification, was legally misguided. Therefore, the district court concluded
Volk failed to establish either deficient performance or prejudice.
       On appeal, Volk maintains that the recording does not meet the requirements of
I.R.E. 901. Volk further contends that the district court erred in granting the State’s motion for
summary dismissal without considering the confrontation call as evidence, arguing that the State
and Volk entered into an agreement that the recorded call be admitted into evidence in post-
conviction proceedings. The record before this Court does not include the recording of the
telephone conversation between Volk and V.S.
       No part of the record from the criminal case becomes part of the record in the
       post-conviction proceeding unless it is entered as an exhibit. Exhibits, as well as
       transcripts of the pre-trial proceedings, the trial, and sentencing hearing in the
       criminal case, even if previously prepared as a result of a direct appeal or
       otherwise, are not before the trial court in the post-conviction proceeding and do
       not become part of the record on appeal unless presented to the trial court as
       exhibits, Roman v. State, 125 Idaho 644, 648, 873 P.2d 898, 902 (Ct. App. 1994),
       or unless the trial court takes judicial notice of such records from the criminal
       case. Idaho Rule of Evidence 201.
Esquivel v. State, 149 Idaho 255, 258 n.3, 233 P.3d 186, 189 n.3 (Ct. App. 2010).
       In support of his assertion that the recording should have been entered into evidence in
post-conviction proceedings, Volk points to two statements. First, in the State’s motion for
summary dismissal, and in regard to Volk’s claim that the confrontation call was illegally
obtained because there was no consent by V.S. or her mother, the prosecutor said, “If Petitioner

                                                 4
wishes to proceed with this claim, a copy of the audio recording can be made available for
including in the record of this case.” Next, in his response to answer for post-conviction relief,
Volk stated: “As this is not a frivolous claim, the Petitioner absolutely wants to proceed with
this claim. Yes, include this audio recording in the record of this case, even though it is part of
discovery and needs to be reviewed at an evidentiary hearing.” Although the statements made by
the prosecutor and Volk indicate that there would not have been an objection to admitting into
evidence a recording of the confrontation call, they do not constitute an actual request that the
court do so.
       As the petitioning party, the burden fell to Volk to move the district court to admit any
evidence relevant to the claims asserted in the petition for post-conviction relief. Volk failed to
make the recording of the telephone call part of the record herein and, as such, his assertion that
the district court abused its discretion by failing to consider a recording of the confrontation call
in order to determine its admissibility under I.R.E. 901 is without merit. Pro se litigants are held
to the same standards as those litigants represented by counsel. Michalk v. Michalk, 148 Idaho
224, 229, 220 P.3d 580, 585 (2009). Pro se litigants are not excused from abiding by procedural
rules simply because they are appearing pro se and may not be aware of the applicable rules. Id.
Volk has failed to show that the district court abused its discretion in summarily dismissing his
claim that trial counsel was ineffective for failing to seek suppression of the confrontation call
recording.
       Further, while we need not address whether the telephone call was illegally intercepted
under I.R.E. 901, based on the evidence before this Court, the district court correctly ruled on the
issue. Contained within the record is a detailed written summary of the recorded telephone
conversation authored by the detective who arranged the call between Volk and V.S. The State
also submitted the affidavit of the same detective who indicated he had the consent of both the
victim and the mother to have the victim place the call and allow the officer to listen in.
Additionally, the mother was present at the time of the call. The affidavit further makes clear
that the purpose of the phone call was “to seek incriminating evidence from Mr. Volk as to his
sexual contact with [V.S.].” Vicarious consent was appropriately given in this case. As such,
the interception of that phone call by law enforcement was not illegal.




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                                             III.
                                       CONCLUSION
        The district court’s judgment summarily dismissing Volk’s petition for post-conviction
relief is affirmed.
        Judge GUTIERREZ and Judge MELANSON CONCUR.




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