               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 34919

MARK A. PERSON,                                 )     2009 Opinion No. 24
                                                )
       Petitioner-Appellant,                    )     Filed: April 7, 2009
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
STATE OF IDAHO,                                 )
                                                )
       Respondent.                              )
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho,
       Boise County. Hon. Joel D. Horton, District Judge.

       Order summarily dismissing petition for post-conviction relief, affirmed.

       Nevin, Benjamin, McKay & Bartlett, LLP; Dennis A. Benjamin, Boise, for
       appellant. Dennis A. Benjamin argued.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
                  ______________________________________________

GUTIERREZ, Judge
       Mark A. Person appeals from the district court’s summary dismissal of his petition for
post-conviction relief. We affirm.
                                               I.
                                 FACTS AND PROCEDURE
       On August 20, 2002, Person conditionally pled guilty to second degree murder.
Following the preparation of a 2003 presentence investigation report (PSI), he was sentenced to a
unified term of life imprisonment with twenty years determinate. He appealed his conviction,
and this Court held that portions of his statements obtained during police interrogation should
have been suppressed pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). State v. Person, 140
Idaho 934, 941-42, 104 P.3d 976, 983-84 (Ct. App. 2004).
       On remand, Person entered into a binding plea agreement whereby it was stipulated that
the PSI would be “waived” and the prosecutor would recommend a unified fifty-year sentence


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with fifteen years determinate. No new PSI was prepared, and the court imposed the agreed
upon sentence. A judgment of conviction for second degree murder was entered on September
12, 2005.
       On October 31, 2005, Person filed a motion to correct a clerical error, citing Idaho
Criminal Rules 32 and 36, seeking to have copies of the 2003 PSI returned from the Idaho
Department of Corrections or redacted to exclude the suppressed statements. The district court
denied the motion in March 2006, and Person again appealed to this Court. We affirmed,
holding that the district court did not have the authority to redact information from a PSI after
sentencing, the inclusion of the suppressed statements in the PSI did not violate Person’s Fifth
Amendment rights, and the district court’s failure to redact the statements from the PSI was not a
breach of the plea agreement, because redaction of the statements was not a term of the
agreement. State v. Person, 145 Idaho 293, 298, 178 P.3d 658, 663 (Ct. App. 2007).
       On February 27, 2007, Person filed a pro se petition for post-conviction relief. He
alleged, among other things, that he had received ineffective assistance of counsel in regard to
the entry of his guilty plea, resulting in an invalid plea. Person was appointed counsel, and the
state answered his petition, asserting, among other defenses, that the petition was time-barred
where his time for filing a post-conviction petition had ended on October 17, 2006 (one year and
forty-two days after the judgment of conviction was entered per his second guilty plea). The
state also a filed a motion for summary dismissal. A hearing was held on the motion, and the
district court summarily dismissed the petition as being time-barred. Person now appeals.
                                                 II.
                                            ANALYSIS
       An application for post-conviction relief initiates a proceeding which is civil in nature.
State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Clark v. State, 92 Idaho 827,
830, 452 P.2d 54, 57 (1969); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct.
App. 1992). Idaho Code Section 19-4902(a) requires that such a petition be filed “anytime
within one (1) year from the expiration of the time for appeal or from the determination of an
appeal or from the determination of proceedings following an appeal, whichever is later.” The
failure to file a timely petition is a basis for dismissal of the petition, assuming the defendant has
not shown reason why the statute of limitation should be tolled. Evensiosky v. State, 136 Idaho
189, 191, 30 P.3d 967, 969 (2001); Sayas v. State, 139 Idaho 957, 959, 88 P.3d 776, 778 (Ct.


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App. 2003). Idaho courts have recognized equitable tolling in only two situations: where the
petitioner was incarcerated in an out-of-state facility on an in-state conviction without legal
representation or access to Idaho legal materials and where mental disease and/or psychotropic
medication renders a petitioner incompetent and prevents petitioner from earlier pursuing
challenges to his conviction. Sayas, 139 Idaho at 960, 88 P.3d at 779; Isaak v. State, 132 Idaho
369, 370 n.1, 972 P.2d 1097, 1098 n.1 (Ct. App. 1999). Our review of the district court’s
construction and application of the time limitation aspects of the Uniform Post-Conviction
Procedure Act is a matter of free review. Martinez v. State, 130 Idaho 530, 532, 944 P.2d 127,
129 (Ct. App. 1997); Freeman v. State, 122 Idaho 627, 628, 836 P.2d 1088, 1089 (Ct. App.
1992).
         Person claims that his post-conviction petition was not time-barred because it was filed
within one year of the time when his claim for ineffective assistance of counsel could reasonably
have been discovered.      He contends that the court’s summary dismissal of his claim was
fundamental error, because it should have applied a “discovery exception” to the statute of
limitations.   Specifically, he argues that his claim of ineffective assistance of counsel in
negotiating a plea agreement that was unenforceable (because it required the district court to
redact the PSI which it had no power to do) could not reasonably have been discovered prior to
attempts by his counsel to enforce it and prior to the ultimate determination by this Court that the
district court did not have the power to strike statements from the PSI after sentencing.
Therefore, Person reasons that because his petition for post-conviction relief was filed within one
year from the time he could have reasonably discovered the claim (i.e., from when this Court
issued its decision), his petition was not untimely and the district court erred in summarily
dismissing the petition as time-barred.
         Person concedes that he did not argue to the district court that a discovery exception
should apply; rather he contended only that inaccurate advice by his appellate attorney during his
second appeal should toll the running of the statute of limitations--an argument the district court
rejected in summarily dismissing his claim. Recognizing the general rule that issues not raised
below may not be considered for the first time on appeal, see Small v. State, 132 Idaho 327, 331,
971 P.2d 1151, 1155 (Ct. App. 1998), Person therefore asserts that it was fundamental error for
the district court to fail to sua sponte apply the discovery exception to his post-conviction
petition.


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       The appellate courts of this state have held that an issue not properly preserved in a
criminal proceeding may be considered on direct appeal or by a court in a post-conviction relief
action if the issue involves fundamental error. State v. Anderson, 144 Idaho 743, 748, 170 P.3d
886, 891 (2007); Mintun v. State. 144 Idaho 656, 661, 168 P.3d 40, 45 (Ct. App. 2007). In this
instance, we are asked to apply fundamental error in order to consider an issue which was not
raised or preserved in the post-conviction relief action itself, rather than an issue which was not
raised or preserved in the underlying criminal proceeding. An application for post-conviction
relief initiates a proceeding that is civil in nature. Bearshield, 104 Idaho at 678, 662 P.2d at 550;
Murray, 121 Idaho at 921, 828 P.2d at 1326. Although Person points to Gonzalez v. State, 120
Idaho 759, 762, 819 P.2d 1159, 1162 (Ct. App. 1991), which references, without direct support,
application of fundamental error to a decision of the trial court in a post-conviction relief action,
we decline to do so. Accordingly, we affirm the district court’s summary dismissal of Person’s
petition for post-conviction relief.
       Judge PERRY and Judge GRATTON CONCUR.




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