               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 37983

SHAWN ALAN LASH,                                  )     2011 Unpublished Opinion No. 681
                                                  )
       Petitioner-Appellant,                      )     Filed: November 2, 2011
                                                  )
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STATE OF IDAHO,                                   )     THIS IS AN UNPUBLISHED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 Fourth Judicial District, State of Idaho, Ada
       County. Hon. Darla S. Williamson, District Judge.

       Order summarily dismissing application for post-conviction relief, affirmed.

       Shawn Alan Lash, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       Shawn Alan Lash appeals from the district court’s order summarily dismissing his
application for post-conviction relief. For the reasons set forth below, we affirm.
       A jury found Lash guilty of three counts of lewd conduct with a minor under sixteen, I.C.
§ 18-1508, and three counts of sexual battery of a minor child sixteen or seventeen years of age,
I.C. § 18-1508A(1)(a), for sexual contact with his daughter. The district court ordered the
preparation of a psychosexual evaluation for sentencing purposes, and Lash participated in that
evaluation. After the evaluation report was prepared and sent to the parties and the court, Lash
moved for a second evaluation. The district court authorized a second evaluation and also agreed
not to consider the first evaluation at sentencing in light of the Idaho Supreme Court’s just-issued
decision in Estrada v. State, 143 Idaho 558, 149 P.3d 833 (2006).
       At the sentencing hearing, the district court made mention of the first evaluation, to
which Lash’s attorney did not object. The district court imposed six concurrent, unified life
sentences, with minimum periods of confinement of twenty-five years.            Lash appealed his


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sentences to this Court, contending that the district court violated his Fifth and Sixth Amendment
rights, as they were defined in Estrada, by considering the first psychosexual evaluation during
sentencing. This Court affirmed in an unpublished opinion. State v. Lash, Docket No. 33958
(Ct. App. Sept. 17. 2009). Lash then filed a pro se application for post-conviction relief. Lash
was appointed counsel who filed an amended application. Lash argued that his trial counsel was
ineffective at sentencing for twice referencing the first psychosexual evaluation and for failing to
object when the district court mentioned the first evaluation at sentencing. He also alleged that
his trial counsel was ineffective for failing to hire an expert to evaluate Lash’s computer in order
to rebut the state’s expert who testified that pornography was found on the computer. The state
filed a motion for summary dismissal. After a hearing, the district court granted the state’s
motion and dismissed the application. Lash appeals.
       An application for post-conviction relief initiates a proceeding that is civil in nature.
Rhoades v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009); State v. Bearshield, 104
Idaho 676, 678, 662 P.2d 548, 550 (1983); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323,
1326 (Ct. App. 1992).       Like a plaintiff in a civil action, the applicant must prove by a
preponderance of evidence the allegations upon which the request for post-conviction relief is
based. I.C. § 19-4907; Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002).
An application 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). An application 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, an application for post-conviction relief must be verified with respect to
facts within the personal knowledge of the applicant, and affidavits, records or other evidence
supporting its allegations must be attached, or the application must state why such supporting
evidence is not included with the application. I.C. § 19-4903. In other words, the application
must present or be accompanied by admissible evidence supporting its allegations, or the
application will be subject to dismissal.
       Idaho Code Section 19-4906 authorizes summary dismissal of an application for post-
conviction relief, either pursuant to motion of a party or upon the court’s own initiative.
Summary dismissal of an application pursuant to I.C. § 19-4906 is the procedural equivalent of
summary judgment under I.R.C.P. 56. A claim for post-conviction relief will be subject to
summary dismissal if the applicant has not presented evidence making a prima facie case as to


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each essential element of the claims upon which the applicant bears the burden of proof.
DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary dismissal is
permissible when the applicant’s evidence has raised no genuine issue of material fact that, if
resolved in the applicant’s favor, would entitle the applicant to the requested relief. If such a
factual issue is presented, an evidentiary hearing must be conducted. Goodwin, 138 Idaho at
272, 61 P.3d at 629. Summary dismissal of an application for post-conviction relief may be
appropriate, however, even where the state does not controvert the applicant’s evidence because
the court is not required to accept either the applicant’s mere conclusory allegations, unsupported
by admissible evidence, or the applicant’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).
        On review of a dismissal of a post-conviction relief application without an evidentiary
hearing, we determine whether a genuine issue of fact exists based on the pleadings, depositions,
and admissions together with any affidavits on file. Rhoades, 148 Idaho at 250, 220 P.3d at
1069; Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct. App. 1993). In post-conviction
actions, 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).
        Lash did not provide a record or transcripts from his underlying criminal case in the
appellate record.    It is the responsibility of the appellant to provide a sufficient record to
substantiate his or her claims on appeal. Powell v. Sellers, 130 Idaho 122, 127, 937 P.2d 434,
439 (Ct. App. 1997). In the absence of an adequate record on appeal to support the appellant’s
claims, we will not presume error. Id.
        We hold that the district court did not err in summarily dismissing Lash’s application for
post-conviction relief because Lash failed to present an adequate record on appeal. Accordingly,
the district court’s order summarily dismissing Lash’s application for post-conviction relief is
affirmed. Costs, but not attorney fees, are awarded to the respondent on appeal.
        Chief Judge GRATTON, CONCURS.
        Judge GUTIERREZ, CONCURS IN THE RESULT.




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