               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 36112

JOHN MEIER,                                       )     2010 Unpublished Opinion No. 459
                                                  )
       Petitioner-Appellant,                      )     Filed: May 11, 2010
                                                  )
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STATE OF IDAHO,                                   )     THIS IS AN UNPUBLISHED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. Ronald J. Wilper, District Judge.

       Order dismissing application for post-conviction relief, affirmed.

       John Meier, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                  ______________________________________________
MELANSON, Judge
       John Meier appeals from the district court’s order dismissing his application for post-
conviction relief after an evidentiary hearing. For the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       While Meier was on probation for possession of a controlled substance, he was suspected
of participating in a number of thefts from local retail stores involving fraudulent merchandise
returns. His probation officer, accompanied by law enforcement and loss prevention specialists
from the victimized stores, searched Meier’s storage unit and apartment for stolen merchandise.
Several items of merchandise were found which were identified as stolen from their respective
stores by the loss prevention specialists. These items were seized by the officers. In the storage
unit, officers also discovered a briefcase containing child pornography. Meier pled guilty to
possession of a sexually exploitative material and being a persistent violator.          The state
dismissed additional counts of possession of sexually exploitative material and agreed not to file


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any charges relating to the pending theft investigation. The district court imposed a fixed life
sentence, which this Court affirmed in an unpublished opinion. State v. Meier, Docket No.
34261 (Ct. App. Feb. 1, 2008).
       Meier filed a pro se application for post-conviction relief alleging that he received
ineffective assistance of counsel and that his guilty plea was coerced. All of Meier’s claims
revolved around his concern that the search of his storage unit was illegal because the rental
agreement was also in the name of his brother. He argued that this information was concealed
and ignored in order to manipulate discovery and force him to plead guilty. Meier was appointed
post-conviction counsel. At an evidentiary hearing, the district court heard testimony from
Meier as well as his trial attorney. A copy of the rental agreement for the storage unit was also
admitted. After the evidentiary hearing, the district court found that Meier had not met his
burden of showing that his counsel was ineffective or that his guilty plea was coerced.
Accordingly, the district court dismissed Meier’s application for post-conviction relief. Meier
appeals.
                                                 II.
                                           ANALYSIS
       In order to prevail in a post-conviction proceeding, the applicant must prove the
allegations by a preponderance of the evidence. I.C. § 19-4907; Stuart v. State, 118 Idaho 865,
801 P.2d 1216 (1990). When reviewing a decision denying post-conviction relief after an
evidentiary hearing, an appellate court will not disturb the lower court’s factual findings unless
they are clearly erroneous. I.R.C.P. 52(a); Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656
(Ct. App. 1990). The credibility of the witnesses, the weight to be given to their testimony, and
the inferences to be drawn from the evidence are all matters solely within the province of the
district court. Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We
exercise free review of the district court’s application of the relevant law to the facts. Nellsch v.
State, 122 Idaho 426, 434, 835 P.2d 661, 669 (Ct. App. 1992).
       Meier’s application for post-conviction relief alleged that his guilty plea was coerced, he
was lied to about discovery, and he received ineffective assistance of counsel. Concerning his
claim of ineffective assistance of counsel, Meier specifically alleged that counsel failed to get
complete discovery, the defense investigator lied to him about a suppression issue, and there was
an illegal search and seizure of his storage unit which was then covered up by manipulated


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discovery. Meier attached an affidavit to his application which further alleged that the storage
unit rental agreement included another occupant and, therefore, the search of the storage unit was
illegal. Meier claimed that he was not given a copy of the rental agreement or the warrants
obtained after the search of the unit and that the investigator lied to him by telling him that his
name was the only one on the rental agreement. Meier alleged that this was the only reason he
pled guilty.
       A claim of ineffective assistance of counsel may properly be brought under the post-
conviction procedure act. Murray v. State, 121 Idaho 918, 924-25, 828 P.2d 1323, 1329-30 (Ct.
App. 1992). 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 applicant 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). Where, as
here, the defendant was convicted upon a guilty plea, to satisfy the prejudice element, the
claimant 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. Howard v. State, 126 Idaho 231, 233, 880 P.2d
261, 263 (Ct. App. 1994).
       A guilty plea must be voluntary, knowing and intelligent to withstand scrutiny under both
our United States and Idaho constitutions. Huck v. State, 124 Idaho 155, 161, 857 P.2d 634,
640 (Ct. App. 1993). In determining whether the plea was voluntary, knowing and intelligent,
we review all of the surrounding circumstances disclosed in the record. Id. A district court’s
finding that a plea is voluntary, knowing and intelligent is a question of fact which we will not
disturb if it is supported by substantial evidence. Id.
       At the evidentiary hearing, Meier presented a copy of the rental agreement as well as a
transfer agreement for the storage unit. The rental agreement was in Meier’s name and listed his
brother as a contact person. The transfer agreement was executed by Meier after the search and


                                                  3
his subsequent arrest in this case and transferred his interest in the unit to his brother. Meier
testified at the evidentiary hearing that counsel led him to believe that he had no option other
than to accept a plea agreement because there were no other names on the rental agreement. His
testimony also included a number of self-serving allegations regarding access to the storage unit,
ownership of the obscene material, and the performance of trial counsel and defense
investigators. No other evidence was offered in support of his accusations. Trial counsel also
testified at the evidentiary hearing that Meier was anxious to plead guilty throughout the
proceedings and that Meier was not coerced. Counsel testified that the issue of another name on
the rental agreement was discussed with Meier, and it was a nonissue because the rental
agreement was also in Meier’s name and he had waived his Fourth Amendment rights against
search and seizure as a condition of his felony probation. Trial counsel further testified that it
was his customary practice to send defendants copies of all discovery and that he had no reason
to believe that he did not send the discovery to Meier in this case.
       Outside of the copy of the rental agreement that was submitted into evidence, Meier
provided no evidence throughout the course of these post-conviction proceedings in support of
his allegations. The rental agreement and attached transfer agreement fail to support the claim
that the storage unit was rented jointly by Meier and his brother at the time that it was searched
by law enforcement and the exploitative material was seized. Even if these agreements did
support Meier’s contention of joint ownership, Meier has submitted no evidence showing that
this could have formed the basis of a successful motion to suppress other than Meier’s
conjecture. Meier has failed to meet his burden of proving his allegations by a preponderance of
the evidence, and the district court did not err by dismissing his application for post-conviction
relief. Meier makes additional arguments on appeal concerning the violation of his Fourth
Amendment rights and the ineffective assistance of appellate and post-conviction counsel which
we conclude are meritless, not supported by adequate argument or authority, and not preserved
for appellate review because they were not presented to the district court. 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). Generally, issues not raised below may not be considered
for the first time on appeal. Sanchez v. Arave, 120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991).
Therefore, we do not address these issues further.




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                                                 III.
                                           CONCLUSION
           Meier failed to meet his burden of proof that his plea was coerced or that trial counsel
was ineffective. Therefore, the district court did not err by dismissing his application for post-
conviction relief. Meier’s other issues on appeal are meritless, not supported by adequate
argument or authority, and not properly preserved for appeal. Therefore, we do not address them
further.     Accordingly, the district court’s order dismissing Meier’s application for post-
conviction relief after an evidentiary hearing is affirmed. No costs or attorney fees awarded on
appeal.
           Judge GUTIERREZ and Judge GRATTON, CONCUR.




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