                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 39517

CHRISTOPHER DELFEIDO GONZALES, )                         2013 Unpublished Opinion No. 622
                               )
     Petitioner-Appellant,     )                         Filed: August 9, 2013
                               )
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STATE OF IDAHO,                )                         THIS IS AN UNPUBLISHED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 Fifth Judicial District, State of Idaho,
       Jerome County. Hon. John K. Butler, District Judge.

       Judgment denying petition for post-conviction relief, affirmed.

       Christopher Delfeido Gonzales, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Christopher Delfeido Gonzales appeals from the district court’s denial of his petition for
post-conviction relief after an evidentiary hearing. Gonzales argues that the evidence shows that
his defense counsel was deficient in failing to object to evidence entered at Gonzales’s trial and
in failing to call two potential alibi witnesses. We affirm.
                                                 I.
                                         BACKGROUND
       In the underlying criminal case, Gonzales was charged with numerous crimes that took
place over the course of a week in February 2008. A jury found Gonzales guilty of attempted
strangulation, aggravated battery with a deadly weapon enhancement, second degree kidnapping,
two counts of misdemeanor domestic battery, two counts of aggravated assault with a deadly
weapon enhancement, and misdemeanor battery.              Some of these offenses occurred on
February 13, and as to those, the victim was Lisa M.



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       Gonzales later filed a post-conviction petition stating a number of claims of ineffective
assistance of counsel. An attorney who was appointed to represent Gonzales filed an amended
petition. The district court summarily dismissed all of Gonzales’s post-conviction claims except
three that were predicated on defense counsel’s failure to object to a handwritten note that was
entered into evidence at trial, failure to call Gonzales’s alibi witnesses, and failure to inform
Gonzales of his right to remain silent under Estrada v. State, 143 Idaho 558, 563, 149 P.3d 833,
838 (2006). The district court held an evidentiary hearing on those remaining claims. At the
hearing, the court heard testimony from Gonzales, his potential alibi witnesses, and Gonzales’s
defense attorneys. After the hearing, the district court issued a written opinion finding against
Gonzales, and the action was dismissed.
       On appeal, Gonzales does not pursue his Estrada claim but maintains that the district
court erred in dismissing his ineffective assistance claims regarding the note and the alibi
witnesses.
                                                 II.
                                           ANALYSIS
       A claim of ineffective assistance of counsel may properly be brought under the Uniform
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 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). To establish
prejudice, the petitioner must show a reasonable probability that, but for the attorney’s deficient
performance, the outcome of the trial would have been different. Id. at 761, 760 P.2d at 1177.
“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).
       In order to prevail in a post-conviction proceeding, the petitioner must prove the
allegations by a preponderance of the evidence. Stuart v. State, 118 Idaho 865, 869, 801 P.2d


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1216, 1220 (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). The trier of
fact can reject testimony it finds not to be credible, State v. Miller, 131 Idaho 288, 295, 955 P.2d
603, 610 (Ct. App. 1997); Young v. State, 115 Idaho 52, 55, 764 P.2d 129, 132 (Ct. App. 1988),
and a trial court’s decision that a party’s burden of proof has not been met is entitled to great
weight. Wilbanks v. State, 126 Idaho 341, 345, 882 P.2d 996, 1000 (Ct. App. 1994). 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).
A.     Failure to Object to Exhibit 102
       Gonzales’s first argument on appeal is that his defense counsel failed to object to a
handwritten note, Exhibit 102, that was part of the State’s evidence presented at trial. The note
was found by victim Lisa a few days after the crime and appeared to have been written by
Gonzales. It stated:
              Lisa,
              . . . I did something I never known to be capable of.
              I can’t even imagine how scared you are. It haunts me for days now as
       they come and go. To be truthful I don’t know what quite to say . . . .
              Chris

In his post-conviction action, Gonzales contended that he did not author the note and claimed
that his attorneys, Dan Taylor and Stacy Gosnell, provided ineffective assistance by failing to
object to its introduction at trial. Gonzales asserts that his defense counsel were unaware of the
note before trial and had not discussed it with him and therefore had not properly prepared for
trial. He also asserts that counsel should have obtained a handwriting expert to rebut the State’s
assertion that Gonzales wrote the note.
       His attorneys, however, testified to quite the opposite. Taylor testified that he and co-
counsel Gosnell had “lengthy conversations” about the note and discussed it with Gonzales. He
said that they decided that the best way to handle it was not to object because to do so would
draw more attention to the note and “give it more punch than it needed to have.” The attorneys


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also testified that they believed if they had objected to the note on foundational grounds, the
State could have laid the requisite foundation for admission of the note. This testimony from
counsel directly contradicted Gonzales’s claims that the attorneys were unaware of the note
before trial, had not discussed it with him, and failed to object due to lack of preparation for trial.
       The district court accepted the testimony of Gonzales’s defense attorneys as true and
found that the decision not to object to the note that was introduced by the State at trial was a
strategic decision because the attorneys wanted to avoid drawing more attention to it. Thus, the
district court made a determination that the testimony of defense counsel was more credible than
that of Gonzales. The court also concluded that if an objection had been made for lack of
foundation showing that Gonzales authored the note, the State could have laid the requisite
foundation anyway. The district court therefore held that Gonzales did not prove that his counsel
was ineffective for failing to object to the note.
       The evidence supports the district court’s conclusion.          Taylor and Gosnell rebutted
Gonzales’s claim that they were unaware of the note before trial, and they testified to legitimate,
strategic reasons for not making an objection, including not wanting to draw additional attention
to the note and the lack of any potentially successful basis for an objection.            Because the
assessment of the credibility of witnesses and the weight to be given their testimony is
committed to the trial court who heard the evidence, it will not be set aside on appeal. Although
Gonzales criticizes his counsel for not objecting to the note, he suggests no objection that could
have successfully been made to prevent its introduction into evidence. The evidence supports
the district court’s determination that counsel’s strategic decision was not made out of any
misunderstanding of the law or the facts or inadequate preparation. Therefore, we find no error
in the district court’s denial of Gonzales’s claim that his counsel was deficient with respect to
their handling of Exhibit 102.
       Gonzales also contends that counsel should have retained a handwriting expert who
would have provided support for his claims that he was not the author of the document. At the
evidentiary hearing, however, Gonzales did not offer any testimony from such an expert to
substantiate his claim. To sustain his burden of proof, a post-conviction petitioner must support
his allegations with competent, admissible evidence. Curless v. State, 146 Idaho 95, 99, 190
P.3d 914, 918 (Ct. App. 2008); Hall v. State, 126 Idaho 449, 453, 885 P.2d 1165, 1169 (Ct. App.
1994); Roman v. State, 125 Idaho 644, 649, 873 P.2d 898, 903 (Ct. App. 1994). It is not enough


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to allege that a witness would have testified to certain events, or would have rebutted certain
statements made at trial, without providing through affidavit nonhearsay evidence of the
substance of the witnesses’ testimony. Hall, 126 Idaho at 453, 884 P.3d at 1169. Therefore,
Gonzales did not meet his burden of proof on this claim.
B.     Failure to Present Gonzales’s Alibi Witnesses
       Gonzales next argues that his defense attorneys were ineffective because they did not call
his mother and sister to testify to provide an alibi defense. Gonzales asserts that these relatives
would have testified that he was home for most of the day on February 13, thereby creating
reasonable doubt that he committed the offenses alleged to have occurred that day.
       Taylor testified, however, that Gonzales’s potential alibi witnesses were problematic for
at least two reasons. First, Taylor said that the relatives’ testimony did not sufficiently account
for all of the day in question, and was too vague regarding time frames to provide an effective
alibi. Second, there was concern about suborning perjury. Taylor and Gosnell both testified that
just prior to trial, as they were going through the case file, they found a note apparently written
by Gonzales in which he admitted to committing the crimes against victim Lisa. Taylor said that
as the attorneys were “going through a million things he [Gonzales] wanted us to look at,” they
“came across a letter that was in the same handwriting as everything else of his that I had seen.”
The letter admitted the offenses against Lisa. According to Taylor, this note was addressed to
Lisa, contained apologies to Lisa, and “basically proved the State’s case.” At that point, Taylor
said, that he “had every reason to believe that if I did call the alibi witnesses I would have been
suborning perjury.” Gosnell confirmed Taylor’s testimony about finding this incriminating note
and the ethical concerns that it created with respect to any plan to present an alibi defense. She
said, “There was information in the file from the defendant that established that the alibi was not
accurate.” Gosnell said that she and Taylor discussed with Gonzales the decision not to call alibi
witnesses and discussed with him why the ethical determination was made not to present the
alibi defense.
       The district court held that in light of these concerns, Gonzales did not establish that the
attorneys’ decision constituted deficient performance. The evidence supports the district court’s
finding in this regard. The attorneys’ testimony showed that the decision not to call the alibi
witnesses was a legitimate, strategic decision based in part upon their determination not to
engage in unethical conduct by presenting perjured testimony and based also on weaknesses in


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the testimony. Gonzales has not shown that this strategic decision was based on inadequate
preparation, ignorance of the law, or other shortcomings. The district court properly concluded
that Gonzales did not meet his burden to prove this claim of ineffective assistance of counsel.
       In his appellate brief, Gonzales also argues that counsel was ineffective for failing to
request proper jury instructions regarding the deadly weapons enhancement. However, this
claim of ineffective assistance was not raised in the district court, and new claims may not be
presented for the first time on appeal. McKinney v. State, 133 Idaho 695, 708, 992 P.2d 144, 157
(1999); State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Therefore, this claim will
not be addressed.
                                               III.
                                        CONCLUSION
       The district court’s judgment denying Gonzales’s petition for post-conviction relief is
affirmed.
       Judge GRATTON and Judge MELANSON CONCUR.




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