               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 44291

SILAS BENJAMIN PARKS,                           )    2018 Unpublished Opinion No. 332
                                                )
       Petitioner-Appellant,                    )    Filed: January 23, 2018
                                                )
v.                                              )    Karel A. Lehrman, Clerk
                                                )
STATE OF IDAHO,                                 )    THIS IS AN UNPUBLISHED
                                                )    OPINION AND SHALL NOT
       Respondent.                              )    BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Second Judicial District, State of Idaho,
       Latah County. Hon. Jeff M. Brudie, District Judge.

       Order denying petition for post-conviction relief, affirmed.

       Whitney & Whitney, LLP; Thomas W. Whitney, Moscow, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GRATTON, Chief Judge
       Silas Benjamin Parks appeals from the district court’s order denying his petition for post-
conviction relief. We affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       On the morning of June 24, 2009, firefighters responded to reports of a fire at Parks’
residence. After extinguishing the flames, firefighters recovered the badly burned body of Parks’
pregnant wife, Sarah, from a bedroom within the residence.            State forensic pathologist
Dr. Jeffrey Reynolds performed an autopsy on the body and concluded that Sarah’s cause of
death was “[p]robable suffocation or strangulation,” that she had died before her body was
burned, and that she was approximately twenty weeks pregnant at the time of her death. The
Fire Marshal’s investigation into the cause of the fire determined that the fire was caused by the



                                                1
introduction of an open flame to available fuels and/or to introduced fuels 1 and had been started
at or near the foot of the bed where Sarah’s body was discovered.
         The State charged Parks with two counts of first degree murder, Idaho Code §§ 18-
4001, 18-4003, and one count of first degree arson, I.C. § 18-802. Two attorneys were appointed
to represent Parks, who pled not guilty to the charges. After mediation, the State offered to
amend the two murder charges to two counts of voluntary manslaughter, I.C. §§ 18-4006(1), 18-
4007, if Parks would agree to plead guilty. Without first retaining a forensic pathologist to
investigate Dr. Reynolds’ conclusions in the State autopsy report, trial counsel advised Parks to
accept the plea offer from the State. Consequently, Parks entered into a plea agreement with the
State.   The district court accepted Parks’ guilty pleas and imposed concurrent fifteen-year
determinate sentences for the two voluntary manslaughter charges, and a consecutive twenty-
five-year sentence with five years determinate for the arson charge. The court subsequently
denied Parks’ motion for a reduction of his sentence pursuant to Idaho Criminal Rule 35. Parks
did not appeal from the judgment of conviction.
         In 2011, Parks filed a petition for post-conviction relief alleging his trial counsel were
ineffective and that his conviction should be vacated pursuant to I.C. § 19-4901(a)(4). The State
moved for summary dismissal of Parks’ post-conviction petition. With respect to the issues
relevant to this appeal, the district court denied the motion and conducted an evidentiary hearing.
Multiple people testified at the hearing including: (1) Dr. Arden, a forensic pathologist retained
by Parks to review the State’s coroner and autopsy reports; (2) a federal ATF agent who had
investigated the fire; (3) a criminal defense attorney retained by the State as an expert witness;
(4) Parks; and, (5) Parks’ two trial attorneys. After the hearing, the district court concluded that
Parks failed to demonstrate that his trial counsel’s performance was deficient and denied Parks’
petition. Parks timely appeals.




1
       “Introduced fuel” means any combustible item brought to the scene of the fire, like an
accelerant, an ignitable liquid, cloth, or paper. “Available fuel” means any combustible item
already at the scene of the fire prior to its ignition.
                                                  2
                                                 II.
                                            ANALYSIS
        Parks asserts that the district court erred in denying his petition for post-conviction relief
after an evidentiary hearing. 2
A.      Standard of Review
        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 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. Here, Parks does not assert that the district court’s factual
findings are erroneous, so our review is limited to the district court’s application of the relevant
law to the facts.
B.      Ineffective Assistance of Counsel
        Parks asserts that he was deprived of his constitutional right to the effective assistance of
counsel based on trial counsel’s failure to adequately prepare for trial and investigate his case. 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.

2
        The State argues that Parks has failed to assign any specific error to the district court’s
conclusions. We note that the State is technically correct about assignments of error; appellate
courts will not review actions of the district court for which no error has been assigned and will
not otherwise search the record for unspecified errors. State v. Hoisington, 104 Idaho 153, 159,
657 P.2d 17, 23 (1983). Although Parks never explicitly stated in his briefs that the district
court erred, we need not address the issue of assignments of error because the substantive issues
are dispositive.
                                                  3
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).
       1.      Deficient performance
       Parks argues that trial counsel’s performance was deficient because counsel advised him
to accept the State’s plea offer without first retaining a forensic pathologist to investigate the
conclusions in the State’s autopsy report. According to Parks, his trial counsel’s failure to hire
an expert in forensic pathology before advising Parks to plead guilty gave Parks only one source
of expert testimony--the prosecution’s--on the issue of the cause of Parks’ wife’s death, and thus
falls below the duty to conduct a reasonable investigation.
       The State asserts that Parks failed to demonstrate error by the district court and failed to
show that his trial counsel provided deficient performance by advising Parks to plead guilty
before retaining a forensic pathologist to challenge the State’s autopsy conclusions.
       The district court concluded that Parks failed to meet his burden of showing that trial
counsel were deficient. The court determined that trial counsel’s advice was not given due to
lack of investigation or preparation on the part of counsel, but concluded instead that Parks’
counsel investigated the case, prepared a defense, and ultimately advised Parks to accept the plea
deal which significantly reduced his potential prison sentence because both attorneys saw the
plea deal as the best realistic outcome for their client. We agree.
       Determining whether an attorney’s pretrial preparation falls below a level of reasonable
performance constitutes a question of law, but is essentially premised upon the circumstances
surrounding the attorney’s investigation. Thomas v. State, 145 Idaho 765, 769, 185 P.3d 921,

                                                 4
925 (Ct. App. 2008).      To prevail on a claim that counsel’s performance was deficient, a
petitioner must establish that the inadequacies complained of would have made a difference in
the outcome of trial. Id. It is not sufficient merely to allege that counsel may have discovered a
weakness in the State’s case. Id. We will not second-guess trial counsel in the particularities of
trial preparation. Id.
        Here, the circumstances surrounding the attorneys’ investigation reveal that counsel’s
pretrial preparation did not fall below a level of reasonable performance. The State had strong
evidence of Parks’ guilt that made counsel’s advice to accept the State’s plea offer objectively
reasonable. Parks told authorities that he had woken up at 6:45 a.m., checked on his wife, and
then left at about 7:20 a.m. to drive to a fitness facility to workout. However, it only takes
approximately three and one-half minutes to drive from the Parks’ residence to the fitness
facility, and authorities were able to confirm that Parks swiped his membership card at the
facility’s card access point at 7:39 a.m. on the morning of the fire. Additionally, the Fire
Marshal’s investigation concluded that the fire started between approximately 7:33 a.m. and
7:38 a.m., just ten to fifteen minutes before it was initially observed and reported by a witness
and just a few minutes before Parks swiped his access card at the gym. The investigation further
concluded that the fire was not started by accident, but by the introduction of an open flame to
available fuels and/or to introduced fuels. Furthermore, the State pathologist concluded the
cause of death was probable suffocation or strangulation because Sarah suffered respiratory
arrest prior to cardiac arrest, and the pathologist discovered no evidence of infection, no
mechanical trauma, and no evidence of soot or thermal damage in the respiratory tract. So, in
preparation for trial, counsel hired an investigator, consulted a fire expert, and were in the early
stages of employing a pathologist who would have testified for Parks if the case had gone to
trial. 3 Significantly, counsel conducted all of this preparation despite the fact that Parks had told
them prior to mediation that he could recall his hands around Sarah’s throat and despite the fact

3
        Parks’ attorneys spoke with Thomas M. Donndelinger, M.D. Dr. Donndelinger informed
counsel that he no longer testified at trials. Because Parks needed a pathologist who would be
willing to testify at trial, counsel did not further pursue Dr. Donndelinger as a potential witness.
Consequently, counsel consulted with Todd C. Grey, M.D., the Chief Medical Examiner for the
state of Utah. Counsel discussed the basic facts of Parks’ case with Dr. Grey and inquired as to
whether he would be willing to review materials related to Mr. Parks’ criminal case, including
the autopsy report completed by Dr. Jeffrey Reynolds, and to testify at trial, if needed. Dr. Grey
indicated that he would be willing to review the materials and testify at trial.
                                                  5
that Parks specifically asked trial counsel not to pursue a defense theory based on evidence of an
alternate perpetrator.   Parks’ counsel perceived these statements to mean that Parks was
reluctantly communicating that he did, in fact, kill Sarah Parks.        Given the circumstances
surrounding the attorneys’ investigation, counsel’s pretrial preparation did not fall below a level
of reasonable performance.
       Moreover, the district court concluded that Parks had merely alleged that counsel may
have discovered a weakness in the State’s case. Parks supported his ineffective assistance of
counsel claim with an affidavit and report prepared by Dr. Jonathan L. Arden, a consulting
practice based in northern Virginia, after Dr. Arden had reviewed the State pathologist’s report.
Dr. Arden also testified at the hearing on Parks’ petition for post-conviction relief. The district
court concluded that Dr. Arden’s findings did not directly contradict the State pathologist’s
findings. Like the State’s pathologist, Dr. Arden concluded that Sarah was dead before the fire
started but that asthma was not the cause of death. The court also noted that although Dr. Arden
took issue with the pathologist’s ultimate conclusion that Sarah’s death resulted from “probable”
suffocation or strangulation, Dr. Arden ultimately opined that “in the absence of another obvious
type of trauma to explain her death (e.g., a gunshot wound), it is reasonable to consider some
form of asphyxiation as having caused her death.” There is a fine distinction between the State
pathologist’s conclusion that Sarah’s cause of death was “probable” suffocation or strangulation
and Dr. Arden’s conclusion that it was reasonable to consider some form of asphyxiation as
having caused Sarah’s death. Nevertheless, Dr. Arden failed to propose an alternative cause of
Sarah’s death. Therefore, Parks failed to establish that the inadequacies he has complained of
would have made a difference in the outcome of the proceeding.
       Finally, the facts create a tight timeline that supports the State’s theory of the case that
Parks killed his wife, started a fire at or near the foot of the bed where Sarah’s body was
recovered, and then left the residence and traveled to the fitness facility. Indeed, the post-death
arson of the apartment alone was powerful and persuasive circumstantial evidence of Parks
having engaged in conduct which caused the death of Sarah Parks and the unborn child.
Consequently, counsel believed that Parks would have been convicted of first degree murder if
he went to trial. Counsel testified that the best foreseeable outcome at trial would be a finding of
guilt for voluntary manslaughter instead of murder. Therefore, when the State ultimately agreed
to reduce the charges from murder to voluntary manslaughter, thus reducing Parks’ potential

                                                 6
sentence from a period of life to a period of twenty to forty years, counsel recognized the State’s
plea offer as the best possible outcome in the case and reasonably advised Parks to accept it. 4
       In light of the State’s strong evidence of Parks’ guilt, the district court’s conclusion that
Dr. Arden’s report does not directly contradict the State pathologist’s findings, and counsel’s
pretrial preparation despite Parks’ own admissions to counsel, Parks has failed to establish that
trial counsel’s pretrial preparation fell below an objective standard of reasonable performance.
Accordingly, Parks has failed to establish that trial counsel’s performance was deficient under
Strickland.
       2.      Prejudice
       The district court declined to address whether Parks was prejudiced because the court
rested its decision to deny Parks’ petition on his failure to demonstrate that trial counsel’s
performance was deficient. Nevertheless, we address the issue here.
       Parks argues that he was prejudiced because he would not have agreed to plead guilty had
he known that a forensic investigation by his appointed counsel would have revealed facts and
conclusions such as those explained by Dr. Arden.
       The State argues Parks failed to demonstrate that he was prejudiced by any alleged
deficiency in his trial counsel’s performance. We agree.



4
       Addressing the issue of counsel’s advice prior to a defendant’s decision to plead guilty,
the United States Supreme Court, has stated:
       [T]he decision to plead guilty before the evidence is in frequently involves the
       making of difficult judgments. All the pertinent facts normally cannot be known
       unless witnesses are examined and cross-examined in court. Even then the truth
       will often be in dispute. In the face of unavoidable uncertainty, the defendant and
       his counsel must make their best judgment as to the weight of the State’s case.
       Counsel must predict how the facts, as he understands them, would be viewed by
       a court. If proved, would those facts convince a judge or jury of the defendant’s
       guilt? . . . Questions like these cannot be answered with certitude; yet a decision
       to plead guilty must necessarily rest upon counsel’s answers, uncertain as they
       may be. Waiving trial entails the inherent risk that the good-faith evaluations of a
       reasonably competent attorney will turn out to be mistaken either as to the facts or
       as to what a court’s judgment might be on given facts.
               That a guilty plea must be intelligently made is not a requirement that all
       advice offered by the defendant’s lawyer withstand retrospective examination in a
       post-conviction hearing.
McMann v. Richardson, 397 U.S. 759, 769-70 (1970); see also Dunlap v. State, 141 Idaho 50,
60-61, 106 P.3d 376, 386-87 (2004).
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       Even if we were to hold that counsel’s advice to plead guilty before employing a forensic
pathologist to investigate the conclusions in the State’s autopsy report constituted deficient
performance, Parks has failed to demonstrate that he was prejudiced by the deficiency. Where
the alleged Strickland prejudice stems from claims that trial counsel performed an inadequate
investigation prior to the entry of a defendant’s guilty plea, the United States Supreme Court
explained, “[T]he [petitioner] must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”
Hill v. Lockhart, 474 U.S. 52, 59 (1985). Parks asserts that he would not have pleaded guilty but
for counsel’s alleged errors. However, that does not end the inquiry. The Court continued:
       [W]here the alleged error of counsel is a failure to investigate or discover
       potentially exculpatory evidence, the determination whether the error
       “prejudiced” the defendant by causing him to plead guilty rather than go to trial
       will depend on the likelihood that discovery of evidence would have led counsel
       to change his recommendation as to the plea. This assessment, in turn, will
       depend in large part on a prediction whether the evidence likely would have
       changed the outcome of a trial.
Lockhart, 474 U.S. at 59. After reviewing Dr. Arden’s report and conclusions, counsel still
would not have changed the recommendation as to the plea. As discussed above, when trial
counsel advised Parks to accept the State’s plea offer, counsel were of the opinion that the best
scenario at trial would have been a finding of guilt for voluntary manslaughter instead of
murder. 5 One of Parks’ two trial attorneys testified at the hearing that he had since reviewed
Dr. Arden’s report, but that it would not have changed the attorney’s advice to Parks regarding
the plea deal because the report did not refute the fact that Sarah was dead before Parks started
the fire.   Counsel were both unequivocally clear that they would not have changed their
recommendation to accept the plea deal even if they had conclusions about the autopsy report
like those in Dr. Arden’s report before mediation. Accordingly, Parks has failed to demonstrate
that he was prejudiced by the alleged deficiency.




5
       It is clear from the record that counsel met with Parks on numerous occasions prior to
mediation to discuss the various degrees of murder, manslaughter, and arson, as well as to
explain the maximum penalties and potential outcomes at trial. Furthermore, Parks testified at
the hearing that he understood the maximum sentence for first degree murder was a life sentence
and the maximum sentence for voluntary manslaughter was fifteen years.
                                                8
         In sum, Parks’ right to the effective assistance of counsel was not violated when trial
counsel advised him to accept the State’s plea offer without first retaining a forensic pathologist
to investigate the State autopsy conclusions.
C.       Idaho Code § 19-4901(a)(4)
         Parks also asserts evidence of material facts, not previously presented and heard, require
vacation of his conviction in the interest of justice pursuant to I.C. § 19-4901(a)(4). 6 Parks
argues Dr. Arden’s findings and conclusions, trial counsel’s failure to investigate, the unusual
pressures placed on Parks by counsel, and the district court’s failure to require a factual
admission from him at the change of plea hearing are material facts not previously presented and
heard. According to Parks, allowing his conviction to stand in light of these material facts not
previously presented and heard will substantially increase the probability of wrongly
incarcerating innocent people in future cases because two safeguards will be weakened: (1) the
lawyer’s duty to provide effective representation in accordance with Sixth Amendment
standards, and (2) the district courts’ obligation to ensure that a factual basis for guilty pleas in
felony cases exists.
         The State argues that Parks failed to preserve this claim in the expanded manner in which
he now raises it on appeal, that the district court did not analyze or rule on this claim, and that
Parks’ claim that he is entitled to relief under I.C. § 19-4901(a)(4) has failed on its merits. We
agree.
         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). Appellate court review is limited
to the evidence, theories, and arguments that were presented below. State v. Johnson, 148 Idaho
664, 670, 227 P.3d 918, 924 (2010). Below, Parks made bare and conclusory allegations that he
was entitled to relief pursuant to I.C. § 19-4901(a)(4). First in his memorandum in support of the
amended petition for post-conviction relief and then in his written closing argument, he wrote:




6
         Idaho Code § 19-4901(a)(4) states:
                 Any person who has been convicted of, or sentenced for, a crime and who
         claims: . . . (4) That there exists evidence of material facts not previously
         presented and heard, that requires vacation of the conviction or sentence in the
         interest of justice . . . may institute, without paying a filing fee, a proceeding
         under this act to secure relief.
                                                 9
               The newly presented material facts, not previously presented and heard,
       require vacatur of the convictions and/or sentences in the interest of justice
       pursuant to I.C. § 19-4901(a)(4).
               Although the above analysis [in regards to the ineffective assistance of
       counsel claims] is sufficient to resolve this matter in favor of Mr. Parks on
       constitutional grounds rooted in the Sixth Amendment right to counsel, the
       reasoning set forth above applies with equal force in the context of Idaho
       Code § 19-4901(a)(4), and the entirety of the above analysis is incorporated
       herein.
Parks did not provide any additional analysis or argument with respect to this claim. On appeal,
Parks has expanded this argument beyond the scope of what he presented to the district court.
Thus, Parks waived this argument because he had failed to present it to the district court.
       Moreover, it is well settled that in order for an issue to be raised on appeal, the record
must reveal an adverse ruling that forms the basis for assignment of error. State v. Huntsman,
146 Idaho 580, 585, 199 P.3d 155, 160 (Ct. App. 2008); State v. Amerson, 129 Idaho 395, 401,
925 P.2d 399, 405 (Ct. App. 1996). Parks did not request a specific ruling from the court on this
issue, and the court did not enter a specific ruling on this issue. Accordingly, there is no adverse
ruling to form the basis for an assignment of error.
       Finally, this claim fails on appeal because the district court’s ruling on the ineffective
assistance of counsel claim, which we affirm, negates any argument that would have been
advanced under I.C. § 19-4901. The State correctly argued below that “if the [district court]
finds that Mr. Parks’ trial counsel made a reasonable decision that made further investigation
into the cause of Sarah Parks’ death unnecessary, then the [I.C. § 19-4901(a)(4)] ‘issue’ is
moot.” Despite the fact that the district court did not analyze this claim as a distinct ground for
relief, the court implicitly disposed of the I.C. § 19-4901(a)(4) issue by concluding that Parks’
trial attorneys’ performance was not deficient. Because Parks’ trial attorneys did not render
ineffective assistance of counsel, there is no new evidence of material facts that require vacation
of the conviction or sentence. For these reasons, Parks’ claim that he is entitled to relief in the
interest of justice under I.C. § 19-4901(a)(4) fails.




                                                  10
                                                III.
                                         CONCLUSION
       Parks’ trial counsel did not render ineffective assistance of counsel, and Parks did not
preserve his I.C. § 19-4901(a)(4) claim for appeal. Therefore, we affirm the district court’s order
denying Parks’ petition for post-conviction relief.
       Judge GUTIERREZ and Judge Pro Tem WALTERS CONCUR.




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