               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 40319

WENDY BEIGHLEY,                                   )     2014 Unpublished Opinion No. 338
                                                  )
       Petitioner-Appellant,                      )     Filed: January 24, 2014
                                                  )
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STATE OF IDAHO,                                   )     THIS IS AN UNPUBLISHED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 Seventh Judicial District, State of Idaho,
       Teton County. Hon. Darren B. Simpson, District Judge.

       Judgment dismissing petition for post-conviction relief, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
WALTERS, Judge Pro Tem
       Wendy Beighley appeals from the district court’s judgment summarily dismissing her
petition for post-conviction relief. On appeal, she asserts that the district court erred by summarily
dismissing her claim that she received ineffective assistance of counsel when her attorney failed to
move to withdraw her guilty plea upon her request due to the State’s alleged breach of the plea
agreement. For the reasons that follow, we affirm.
                                                  I.
                                         BACKGROUND
       Beighley pled guilty to lewd conduct with a minor under sixteen. The district court
sentenced Beighley to a unified term of twenty years, with seven years fixed. Beighley appealed
and filed a motion under Idaho Criminal Rule 35 to reduce the sentence. The district court
denied the Rule 35 motion, and this Court affirmed both the sentence and the denial of



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Beighley’s Rule 35 motion in an unpublished opinion. State v. Beighley, Docket No. 37799 (Ct.
App. Apr. 21, 2011).
       Beighley filed a petition for post-conviction relief and supporting affidavit.     In her
petition, Beighley asserted claims of ineffective assistance of counsel, excessive sentence, and
erroneous denial of her Rule 35 motion. The district court entered a notice of intent to dismiss
the petition. Beighley responded with help from post-conviction counsel. The district court
dismissed Beighley’s claims asserting excessive sentence and erroneous denial of the Rule 35
motion because those matters had already been determined on direct appeal. The State then
moved for summary judgment on Beighley’s remaining claim, which alleged ineffective
assistance of counsel. After hearing counsel’s argument on the motion, the district court held
that there were no genuine issues of material fact, granted the State’s motion, and entered a
judgment dismissing Beighley’s petition. Beighley timely appealed.
                                               II.
                                  STANDARD OF REVIEW
       A petition for post-conviction relief initiates a civil, rather than criminal, proceeding,
governed by the Idaho Rules of Civil Procedure. State v. Yakovac, 145 Idaho 437, 443, 180 P.3d
476, 482 (2008). See also Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642, 646 (2008). Like
plaintiffs in other civil actions, the petitioner must prove by a preponderance of evidence the
allegations upon which the request for post-conviction relief is based. I.C. § 19-4907; Stuart v.
State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); 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, however, in that it must contain 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). State v. Payne, 146 Idaho 548, 560, 199 P.3d 123, 135 (2008); Goodwin, 138
Idaho at 271, 61 P.3d at 628. The petition 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. I.C. § 19-4903. In other words, the petition must present or be accompanied by
admissible evidence supporting its allegations or it will be subject to dismissal. Wolf v. State,
152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011); Roman v. State, 125 Idaho 644, 647, 873
P.2d 898, 901 (Ct. App. 1994).
                                               2
       Idaho Code § 19-4906 authorizes summary dismissal of a petition for post-conviction
relief, either pursuant to motion of a party or upon the court’s own initiative, if “it appears from
the pleadings, depositions, answers to interrogatories, and admissions and agreements of facts,
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.” I.C. § 19-4906(c). 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. Payne, 146 Idaho at
561, 199 P.3d at 136; Roman, 125 Idaho at 647, 873 P.2d at 901. Moreover, because the district
court rather than a jury will be the trier of fact in the event of an evidentiary hearing, the district
court is not constrained to draw inferences in the petitioner’s favor, but is free to arrive at the
most probable inferences to be drawn from the evidence. Yakovac, 145 Idaho at 444, 180 P.3d at
483; Wolf, 152 Idaho at 67, 266 P.3d at 1172; 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. Chavez v. Barrus, 146 Idaho 212, 218, 192 P.3d 1036,
1042 (2008); Hayes, 146 Idaho at 355, 195 P.2d at 714; Farnsworth v. Dairymen’s Creamery
Ass’n, 125 Idaho 866, 868, 876 P.2d 148, 150 (Ct. App. 1994).
       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); McKay v. State, 148 Idaho 567, 570, 225 P.3d 700, 703 (2010); DeRushé v. State, 146
Idaho 599, 603, 200 P.3d 1148, 1152 (2009); Charboneau v. State, 144 Idaho 900, 903, 174 P.3d
870, 873 (2007); Berg v. State, 131 Idaho 517, 518, 960 P.2d 738, 739 (1998); Murphy v. State,
143 Idaho 139, 145, 139 P.3d 741, 747 (Ct. App. 2006); Cootz v. State, 129 Idaho 360, 368, 924
P.2d 622, 630 (Ct. App. 1996). 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 Payne, 146 Idaho at 561, 199 P.3d at 136; Roman, 125
Idaho at 647, 873 P.2d at 901.
                                                  3
       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);
Berg, 131 Idaho at 519, 960 P.2d at 740; Stuart v. State, 118 Idaho 932, 934, 801 P.2d 1283,
1285 (1990); Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008); Roman,
125 Idaho at 647, 873 P.2d at 901. If a genuine issue of material fact is presented, an evidentiary
hearing must be conducted to resolve the factual issues. Kelly, 149 Idaho at 521, 236 P.3d at
1281; Payne, 146 Idaho at 561, 199 P.3d at 136; 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); Berg, 131 Idaho at 519, 960 P.2d at 740; Sheahan, 146 Idaho at 104, 190 P.3d at
923; Roman, 125 Idaho at 647, 873 P.2d at 901. Over questions of law, we exercise free review.
Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069 (2009); Downing v. State, 136 Idaho
367, 370, 33 P.3d 841, 844 (Ct. App. 2001); Martinez v. State, 130 Idaho 530, 532, 944 P.2d
127, 129 (Ct. App. 1997).
                                               III.
                                         DISCUSSION
       Beighley does not challenge the district court’s dismissal of her post-conviction claims
relating to an excessive sentence and denial of her Rule 35 motion, which were resolved by this
Court on direct appeal from the judgment of conviction. Beighley takes issue only with the
district court’s conclusion that she failed to establish that her trial counsel was ineffective by
failing to file a motion to withdraw her guilty plea. In her petition, Beighley alleged that “I
wanted my plea to be withdrawn and counsel refused.” After post-conviction counsel confirmed
with trial counsel that the latter had never been requested by Beighley to withdraw Beighley’s
guilty plea, Beighley filed a supplemental affidavit revealing that she had unsuccessfully tried to
contact trial counsel several times during the pendency of her direct appeal. These attempts
occurred when trial counsel no longer was her counsel of record and after appellate counsel had
undertaken her representation. In the affidavit, Beighley essentially acknowledged that she had
never requested trial counsel to withdraw her plea. However, Beighley alleged a new claim by


                                                4
asserting that her trial counsel was ineffective because he had violated Rule 1.4 of the Idaho
Rules of Professional Conduct by failing to communicate with her.
        Based upon this information, the district court concluded that Beighley had failed to
raise a genuine issue of material fact that would give rise to a claim of ineffective assistance of
trial counsel for failure to follow any directive from Beighley to file a motion to withdraw the
plea. The district court further considered whether grounds even existed that would justify the
withdrawal of the plea based upon manifest injustice (as required by Idaho Criminal Rule 33(c))
following entry of the judgment of conviction and sentence that had been upheld on the direct
appeal. The district court concluded that Beighley had failed to assert any facts showing the
existence of manifest injustice. Accordingly, the district court dismissed the claim of ineffective
assistance of counsel.
       Beighley now suggests that during her sentencing proceedings, the State breached the
plea agreement and that trial counsel was ineffective for failing to object at the time the alleged
breach occurred and failing to bring the alleged breach to the district court’s attention. Our
review of the record, however, leads us to conclude that there was no breach of the plea
agreement. The plea agreement provided that, in exchange for Beighley’s plea of guilty to one
count filed against her, the State would dismiss a second pending count, would not file any
additional charges related to the facts in those counts, and would not object to a withheld
judgment of conviction. It is the latter provision that Beighley asserts was breached.
       The transcript of the sentencing proceeding demonstrates that at no time did the State
voice any objection to trial counsel’s request for a withheld judgment on Beighley’s behalf.
There was no agreed requirement that the State make any particular sentencing recommendation,
join in a request for a withheld judgment, or refrain from making any particular recommendation.
At the time Beighley entered her plea of guilty and again during the sentencing proceeding, the
district court engaged in dialogues with Beighley, confirming that any plea recommendation
made to the district court was not binding upon the court. The transcript of the sentencing
proceeding bears out the understanding of the parties regarding the “no objection” term of the
plea agreement. After defense counsel made a recommendatory statement to the district court
for sentencing and prior to the prosecuting attorney’s articulation to the district court, the
following took place:


                                                5
       [The Court]:           Mr. [Prosecutor], State’s recommendation.
       [The Prosecutor]:      Thank you, Your Honor. See if I have enough space here.
       [The Court]:           I’m going to, just so that we don’t get off track, remind you
                              that on the plea agreement you recommended a withheld
                              judgment, correct?
       [The Prosecutor]:      I, I said I would not object to a withheld judgment.
       [The Court]:           Not object to. All right.
       [The Prosecutor]:      I’m not making a recommendation for that.
       [The Court]:           All right.
       [The Prosecutor]:      All right.
       [The Court]:           Mr. [Defense Counsel], you didn’t mention that. Are you
                              requesting a withheld judgment in this case?
       [Defense Counsel]:     I am, Your Honor. And I apologize I did not mention that
                              at the end.
       [The Court]:           Thank you, sir. Go ahead Mr. [Prosecutor].

The prosecutor then verbally reviewed the facts substantiating the charge against Beighley, the
sentencing criteria set forth in Idaho Code § 19-2521 and other relevant considerations (see State
v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct. App. 1982)), to guide the court in its sentencing
determination. The prosecutor closed with:
               Finally, you know, I, I guess I would just refer to the--to all the
       recommendations in the presentence investigation [report], including the
       recommendation for what to do, to do in this case; and just ask the Court to be
       sure to review all, all of the information contained in this, in this packet, weigh it
       appropriately, and, and certainly weigh all those recommendations for, for
       appropriate sentencing in this matter.

The extent of the State’s recommendation was to ask the district court to review all of the
information contained in the presentence investigation (PSI) report, weigh it appropriately, and
issue an appropriate disposition, although the PSI report recommended an unspecified period of
incarceration. Citing State v. Daubs, 140 Idaho 299, 92 P.3d 549 (Ct. App. 2004), Beighley
argues that the prosecutor’s comments in referring to the PSI report impliedly embraced the
unspecified sentence recommended by the presentence investigator and thereby constituted a
tacit objection to Beighley’s request for a withheld judgment, resulting in a breach of the plea
agreement.
       We disagree. In Daubs, as part of a plea agreement the State agreed to recommend that
Daubs receive no more than a rider, which is a term of incarceration for a limited time with an
opportunity for release on probation. However, at the sentencing hearing, a new prosecutor,

                                                 6
who was not the one who had negotiated and agreed to the plea agreement, went much further
than simply recommending a rider. This Court described the prosecutor’s deviation as follows:
        After referring to the agreement to make the rider recommendation, the
       prosecutor highlighted the contrary recommendation of the PSI investigator as
       well as the basis for that recommendation: prison, because of the nature of Daub’s
       crimes, his prior record, and his substance abuse problems. The prosecutor then
       introduced the victim’s parents, and prefaced the parents’ statements by indicating
       that, “[t]hey’re better able than I am to explain the horrific consequences that this
       crime has had on them, their daughters, and their entire family.” We conclude
       that the statements and evidence given to the sentencing judge amount to an
       abrogation of the plea agreement, and a tacit adoption of a recommendation
       altogether different than the one for which the state and defendant had bargained.

Daubs, 140 Idaho at 301, 92 P.3d at 551.
       The differences between Daubs and Beighley’s case are readily apparent. In the present
case, there was no agreement for the making of a recommended sentence of incarceration for any
period by the State; the agreement was that the State would not object to Beighley’s request to
the district court for a withheld judgment of conviction. The record demonstrates that the State
clarified the plea understanding with the district court and that the State did not verbally
recommend any particular sentence nor endorse any particular sentence suggested by the
presentence investigator.    The State expressly stood by its agreement not to object to the
defense’s request for a withheld judgment. The prosecutor’s closing comments to the district
court did not touch upon any of the egregious circumstances that this Court in Daubs
characterized as constructively disavowing the promised recommendation in that case by the
State. We hold that here the prosecutor’s passing reference to the PSI report at the close of his
oral presentation to the district court did not constitute an abrogation of the State’s agreement not
to object to Beighley’s request for a withheld judgment. Thus, Beighley has failed to show that
the district court erred by summarily dismissing Beighley’s petition for post-conviction relief.
                                                IV.
                                         CONCLUSION
       The district court did not err by summarily dismissing Beighley’s petition for
post-conviction relief. The judgment dismissing Beighley’s petition for post-conviction relief is
affirmed.
       Judge GRATTON and Judge MELANSON CONCUR.

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