               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 43489

MICHAEL DALE ROBERTS,                            )    2017 Unpublished Opinion No. 305
                                                 )
       Petitioner-Appellant,                     )    Filed: January 5, 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STATE OF IDAHO,                                  )    THIS IS AN UNPUBLISHED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 Fourth Judicial District, State of Idaho, Ada
       County. Hon. Cheri C. Copsey, District Judge.

       Judgment denying petition for post-conviction relief after an evidentiary hearing,
       affirmed.

       Michael D. Roberts, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GRATTON, Chief Judge
       Michael Dale Roberts appeals from the district court’s judgment denying Roberts’
petition for post-conviction relief after an evidentiary hearing. We affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       The State charged Roberts with possession of a controlled substance and possession of
drug paraphernalia. Roberts entered into a plea agreement with the State. In the agreement,
Roberts agreed to plead guilty to the possession of a controlled substance charge and enter drug
court, and the State agreed to dismiss the possession of drug paraphernalia charge.
       Prior to the entry of his plea, Roberts had not received lab reports confirming that the
substance he possessed was a controlled substance. To expedite Roberts’ entry into drug court,
the district court in the underlying case allowed him to enter a conditional plea. Under the


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conditional plea, the court would permit Roberts to withdraw his plea, and the State would
dismiss the possession of a controlled substance charge if the lab reports showed the substance
Roberts possessed was not a controlled substance.
       Before Roberts entered his plea, he completed a guilty plea advisory form and was
questioned by the district court concerning the plea. The court accepted Roberts’ guilty plea.
The lab reports eventually confirmed that the substance Roberts possessed was a controlled
substance.
       The district court ultimately discharged Roberts from drug court for committing
seventeen violations. Roberts filed a motion to withdraw his guilty plea, arguing that he thought
he pled guilty to the possession of drug paraphernalia charge, not the possession of a controlled
substance charge, and the lab never tested the paraphernalia. The district court denied Roberts’
motion and this Court affirmed the district court’s decision. State v. Roberts, Docket No. 40557
(Ct. App. May 22, 2014) (unpublished).
       Roberts filed a petition for post-conviction relief, alleging his trial counsel was
ineffective for various reasons, and the State withheld evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963). The district court in the post-conviction proceeding held an
evidentiary hearing on Roberts’ petition where it questioned Roberts and his trial counsel. After
the hearing, the court denied the petition. Roberts timely appeals.
                                                 II.
                                           ANALYSIS
       Roberts asserts the district court erred in denying his petition for post-conviction relief.
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). In order to prevail in a post-conviction proceeding, the petitioner must
prove the allegations by a preponderance of the evidence. I.C. § 19-4907; Stuart v. State, 118
Idaho 865, 869, 801 P.2d 1216, 1220 (1990); Baxter v. State, 149 Idaho 859, 861, 243 P.3d 675,
677 (Ct. App. 2010).      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); Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382
(2004); Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of

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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. Dunlap, 141 Idaho at 56,
106 P.3d at 382; 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. Baxter,
149 Idaho at 862, 243 P.3d at 678.
        Specifically, Roberts asserts his trial counsel was ineffective and the State withheld
evidence in violation of Brady.1
A.      Ineffective Assistance of Counsel
        Roberts claims his trial counsel was ineffective in various ways. A claim of ineffective
assistance of counsel may properly be brought under the Uniform Post-Conviction Procedure
Act. Barcella v. State, 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct. App. 2009). To prevail on an
ineffective assistance of counsel claim, the petitioner must show that the attorney’s performance
was deficient and that the petitioner was prejudiced by the deficiency. Strickland v. Washington,
466 U.S. 668, 687-88 (1984); Self v. State, 145 Idaho 578, 580, 181 P.3d 504, 506 (Ct. App.
2007). 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); Knutsen v. State, 144 Idaho 433, 442, 163 P.3d 222, 231
(Ct. App. 2007). Where, as here, the petitioner was convicted upon a guilty plea, to satisfy the
prejudice element, the petitioner 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. Gonzales v. State, 151
Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011).
        Roberts first asserts his trial counsel gave Roberts deficient advice regarding his guilty
plea.   Because of this alleged deficient advice, Roberts asserts his plea was not knowing,
intelligent, and voluntary. According to Roberts, he thought he pled guilty to the possession of

1
        Roberts makes various other allegations for the first time in his appellate brief.
Generally, issues not raised below may not be considered for the first time on appeal. State v.
Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Accordingly, we refuse to consider any
allegations Roberts failed to raise in the court below.
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drug paraphernalia charge, not the possession of a controlled substance charge. Roberts asserts
his confusion about his guilty plea is evident from his answers on the guilty plea advisory form.
       The district court held that Roberts had not shown his trial counsel gave him deficient
advice regarding the guilty plea.    The district court also held Roberts had failed to show
prejudice resulting from his trial counsel’s advice regarding the plea. We agree with the district
court. The record contradicts Roberts’ claim that he received deficient advice from trial counsel
regarding the plea. While some of Roberts’ answers on the guilty plea advisory form indicated
he had some confusion about his plea,2 his answers generally indicated that he understood his
plea and that he was pleading guilty to the controlled substance charge. Thus, Roberts has not
shown his trial counsel gave him deficient advice regarding the plea. Moreover, regardless of
the correctness of trial counsel’s advice, the district court cleared up any confusion Roberts had
about his guilty plea before accepting the plea. The following exchange took place immediately
before the court accepted Roberts’ plea:
       Court:         Just a few more questions and this has to do with the--with the
                      crime. Were you in Ada County, Idaho, or about August 8th,
                      2011?
       Roberts:       Yes, Your Honor.
       Court:         Did you on that day unlawfully possess a controlled substance,
                      Oxycodone?
       Roberts:       Yes, Your Honor.
       Court:         Did you know that you possessed the Oxycodone?
       Roberts:       Yes, Your Honor.
       Court:         And did you know that that’s what you possessed?
       Roberts:       Yes, Your Honor.
       Court:         Anything about that allegation you disagree with?
       Roberts:       No, Your Honor.
       Court:         How do you plead to the possession of a controlled substance?
       Roberts:       Guilty, Your Honor.
Because the court ensured Roberts understood his guilty plea and that he was pleading guilty to
the possession of a controlled substance charge prior to accepting his plea, Roberts has failed to
show any prejudice resulting from his trial counsel’s advice regarding the plea.



2
        Roberts answered “No” to the question, “Is your guilty plea the result of a plea
agreement?” However, Roberts’ guilty plea was the result of a plea agreement. Roberts also
answered “Yes” to the question, “Have you had any trouble answering any of the questions in
this form which you could not resolve by discussing the issue with your attorney?” In addition,
Roberts had changed some of his answers on the form from one answer to another.
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         Roberts next asserts his trial counsel was deficient because he failed to get the
paraphernalia tested. Because the State dismissed the possession of paraphernalia charge in
exchange for Roberts’ guilty plea, Roberts cannot show his trial counsel was ineffective for
failing to get the paraphernalia tested or that his trial counsel’s failure to get the paraphernalia
tested prejudiced Roberts.3
         Roberts also asserts his trial counsel was ineffective because he failed to obtain an audio
recording of Roberts’ arrest. Because there is no evidence such a recording existed, Roberts
cannot show his trial counsel was deficient for failing to obtain such a recording or that his trial
counsel’s failure to obtain such a recording prejudiced Roberts.
         Finally, Roberts asserts his trial counsel was deficient because he failed to support
Roberts’ motion to withdraw his guilty plea with “the only affidavit containing the lab results,”
the “full recitation of the police reports,” and other documents. Roberts does not explain how his
trial counsel was ineffective for failing to support the motion with these documents or how his
trial counsel’s failure to support the motion with these documents prejudiced Roberts.
Accordingly, Roberts has not met his burden to show deficient performance and prejudice on this
claim.
B.       Brady Violation
         Roberts asserts the State withheld evidence in violation of Brady. Roberts suggests the
State failed to get a lab test of the paraphernalia and such a test would have produced
exculpatory evidence. A petition for post-conviction relief may assert a Brady violation. See
I.C. § 19-4901(a)(1). “There are three components of a true Brady violation: The evidence at
issue must be favorable to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82




3
        Even if the State had not dismissed the possession of drug paraphernalia charge, Roberts’
trial counsel would not have rendered ineffective assistance of counsel by failing to get the
paraphernalia tested. The existence of residue from a controlled substance on paraphernalia is
not an element of possession of drug paraphernalia. See I.C. § 37-2734A.


                                                  5
(1999). Roberts’ claim fails on all three components because the State dismissed the possession
of drug paraphernalia charge.4
                                                   III.
                                          CONCLUSION
       Roberts’ trial counsel was not ineffective, and the State did not withhold evidence in
violation of Brady. The district court’s judgment denying Roberts’ petition for post-conviction
relief after an evidentiary hearing is affirmed.
       Judge GUTIERREZ and Judge HUSKEY CONCUR.




4
        Even if the State had not dismissed the possession of drug paraphernalia charge, the
State’s failure to test the paraphernalia would not have helped Roberts’ Brady claim because the
existence of residue from a controlled substance on paraphernalia is not an element of possession
of drug paraphernalia. See I.C. § 37-2734A.
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