                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 47016

ELAWNEE MICHAELINE PAHVITSE,                      )
                                                  )    Filed: March 26, 2020
       Petitioner-Appellant,                      )
                                                  )    Karel A. Lehrman, Clerk
v.                                                )
                                                  )    THIS IS AN UNPUBLISHED
STATE OF IDAHO,                                   )    OPINION AND SHALL NOT
                                                  )    BE CITED AS AUTHORITY
       Respondent.                                )
                                                  )

       Appeal from the District Court of the Sixth Judicial District, State of Idaho,
       Bannock County. Hon. Robert C. Naftz, District Judge.

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

       Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford,
       Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jeffery D. Nye, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Chief Judge
       Elawnee Michaeline Pahvitse appeals from the district court’s judgment summarily
dismissing her petition for post-conviction relief. Pahvitse argues the district court erred in
simultaneously denying her motion for appointment of counsel and summarily dismissing her
petition for post-conviction relief because her petition alleged facts that raised the possibility of a
valid claim for post-conviction relief. Because Pahvitse has not established a possibility of a
valid claim for relief, the district court’s judgment is affirmed.
                                                  I.
                      FACTUAL AND PROCEDURAL BACKGROUND
       Pahvitse pled guilty to driving under the influence, Idaho Code §§ 18-8004, -8005(6).
The district court entered a judgment of conviction, sentenced Pahvitse to a unified term of five
years, with two years determinate, suspended the sentence, and placed Pahvitse on probation. In


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late April 2016, the court found Pahvitse violated the terms of her probation, revoked Pahvitse’s
probation, executed the underlying sentence, and retained jurisdiction.1
       After successfully completing the retained jurisdiction program, the court again placed
Pahvitse on probation. Thereafter, the State filed a probation violation report which alleged that
Pahvitse violated two conditions of her probation. On October 23, 2017, Pahvitse, her counsel,
and the prosecuting attorney appeared at the probation revocation hearing, and Pahvitse admitted
the allegations contained in the probation violation report. Based on Pahvitse’s admissions, the
district court found Pahvitse violated the terms and conditions of her probation and heard
comments and recommendations from respective counsel and a statement from Pahvitse. On
November 1, 2017, the court signed an order revoking Pahvitse’s probation and executing her
original sentence. Pahvitse appealed from the district court’s order revoking her probation and
this Court affirmed the district court’s order.2 State v. Pahvitse, Docket No. 45568 (Ct. App.
June 5, 2018) (unpublished).
       Subsequently, on August 16, 2018, Pahvitse filed a petition for post-conviction relief and
a motion for the appointment of counsel. Pahvitse asserted the following grounds in her petition:
(1) unfiled action plan; (2) probation officer not present during sentencing; and (3) not offering
options (ex:   secondary court, sanction, or discretionary time).3         Pahvitse provided some
additional information regarding her claims related to the unfiled action plan and the failure to
argue for alternative sentencing options into assertions of ineffective assistance of counsel.
Pahvitse did not expand upon her claim related to the probation officer’s absence at the probation
revocation hearing.
       The State filed a motion for summary dismissal, asserting that Pahvitse’s claims failed to
raise a genuine issue of material fact and, further, were untimely, bare, conclusory,


1
        A filed stamped copy of the district court’s order is not available in the record. However,
the record indicates the court found Pahvitse violated the terms of her probation at a hearing on
April 25, 2016, and signed the order revoking her probation, executing the underlying sentence,
and retaining jurisdiction on April 28, 2016.
2
       A file stamped copy of the district court’s order is not available in the record.
3
        Additionally, Pahvitse claims her counsel was ineffective because she did not provide
Pahvitse with paperwork or warrants while she was incarcerated. However, on appeal Pahvitse
does not mention or provide any argument related to this claim and has therefore waived the
issue. See Powell v. Sellers, 130 Idaho 122, 128, 937 P.2d 434, 440 (Ct. App. 1997).


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unsubstantiated, and clearly disproved by the record. The district court issued an order denying
Pahvitse’s request for the appointment of counsel and summarily dismissing her petition for
post-conviction relief. The court found the allegations in Pahvitse’s petition for post-conviction
relief did not justify the appointment of counsel, did not raise verifiable facts sufficient to justify
an evidentiary hearing, contained only bare and conclusory allegations, were devoid of
argument, were not timely, and failed to establish prejudice. Pahvitse timely appeals.
                                                  II.
                                    STANDARD OF REVIEW
       If a post-conviction petitioner is unable to pay for the expenses of representation, the trial
court may appoint counsel to represent the petitioner in preparing the petition in the trial court
and on appeal. I.C. § 19-4904. The decision to grant or deny a request for court-appointed
counsel lies within the discretion of the district court. Grant v. State, 156 Idaho 598, 603, 329
P.3d 380, 385 (Ct. App. 2014). When a district court is presented with a request for appointed
counsel, the court must address this request before ruling on the substantive issues in the case.
Id. The district court abuses its discretion where it fails to determine whether a petitioner for
post-conviction relief is entitled to court-appointed counsel before denying the petition on the
merits. Id.
       In determining whether to appoint counsel pursuant to I.C. § 19-4904, the district court
should determine if the petitioner is able to afford counsel and whether the situation is one in
which counsel should be appointed to assist the petitioner. Grant, 156 Idaho at 603, 329 P.3d at
385. In its analysis, the district court should consider that petitions filed by a pro se petitioner
may be conclusory and incomplete. Id. Facts sufficient to state a claim may not be alleged
because they do not exist or because the pro se petitioner does not know the essential elements of
a claim. Id. Some claims are so patently frivolous that they could not be developed into viable
claims even with the assistance of counsel. Newman v. State, 140 Idaho 491, 493, 95 P.3d 642,
644 (Ct. App. 2004). However, if a petitioner alleges facts that raise the possibility of a valid
claim, the district court should appoint counsel in order to give the petitioner an opportunity to
work with counsel and properly allege the necessary supporting facts. Grant, 156 Idaho at 603,
329 P.3d at 385.




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                                                 III.
                                              ANALYSIS
       An Idaho appellate court will uphold an order that simultaneously dismisses a post-
conviction action and denies a motion for appointment of counsel if: (1) the petitioner received
notice of the fatal deficiencies of the petition; and (2) when the standard governing a motion for
appointment of counsel is correctly applied, the request for counsel would properly be denied.
Judd v. State, 148 Idaho 22, 25, 218 P.3d 1, 4 (Ct. App. 2009). A motion for appointment of
counsel is properly denied when the petitioner did not allege facts that raise the possibility of a
valid claim for post-conviction relief. Id.
       Here, Pahvitse concedes the State’s motion for summary dismissal provided notice of the
fatal deficiencies of her petition. However, Pahvitse asserts that although the district court
articulated the correct standard governing when counsel should be appointed, it incorrectly
applied a heightened standard in its denial of Pahvitse’s motion for appointment of counsel.
Pahvitse admits the facts alleged in her petition were sparse. However she contends under the
correct standard, the court should have granted her motion for the appointment of counsel
because she alleged facts that raised the possibility of a valid claim for post-conviction relief.4 In
response, the State asserts that Pahvitse did not raise the possibility of a valid claim for post-
conviction relief for the three claims at issue on appeal. First, the State claims Pahvitse’s
allegations related to the action plan were vague, bare, and devoid of argument. Second, the
State asserts Pahvitse did not assert any facts to connect the probation officer’s absence to a
possible claim of ineffective assistance of counsel.       Finally, the State contends Pahvitse’s
assertion that her counsel rendered ineffective assistance because she failed to argue for other
options was untimely, and alternatively, Pahvitse did not establish that she was prejudiced by her
counsel’s alleged failure.
A.     Only Pahvitse’s Post-Conviction Claims Related to the November 2017 Probation
       Revocation Are Timely
       Idaho Appellate Rule 14(a) requires that the notice of appeal be filed “within 42 days
from the date evidenced by the filing stamp of the clerk of the court on any judgment or order of


4
       Additionally, Pahvitse argues the district court erred in its determination that her petition
for post-conviction relief was untimely because her claims related to the district court’s
revocation of her probation were timely. The State agrees that Pahvitse’s claims that relate to the
November 2017 probation revocation were timely.
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the district court appealable as a matter of right in any civil or criminal action.” The statute of
limitation for post-conviction actions provides that a petition for post-conviction relief may be
filed at any time within one year from the expiration of the time for appeal, from the
determination of appeal, or from the determination of a proceeding following an appeal,
whichever is later. I.C. § 19-4902(a). The appeal referenced in that section means the appeal in
the underlying criminal case. Gonzalez v. State, 139 Idaho 384, 385, 79 P.3d 743, 744 (Ct. App.
2003). The failure to file a timely petition is a basis for dismissal of the petition. Kriebel v.
State, 148 Idaho 188, 190, 219 P.3d 1204, 1206 (2009).
          In Pahvitse’s underlying criminal case, the district court found that Pahvitse violated the
terms of her probation after she admitted to the violations at her first probation revocation
hearing. Consequently, on April 28, 2016, the district court revoked Pahvitse’s probation,
executed the underlying sentence, and imposed a period of retained jurisdiction. Pahvitse did not
appeal.
          After Pahvitse successfully completed the retained jurisdiction program, the district court
placed Pahvitse on probation for a second time. However, on October 23, 2017, Pahvitse again
admitted to violating the terms and conditions of her probation. On November 1, 2017, the
district court signed an order revoking Pahvitse’s probation and executing the underlying
sentence. Pahvitse appealed and this Court affirmed the district court’s probation revocation
order on June 5, 2018. Pahvitse, Docket No. 45568 (Ct. App. June 5, 2018).
          On August 16, 2018, Pahvitse filed the petition for post-conviction relief. Thus, only
claims relating to the November 1, 2017, order revoking probation are timely because they are
the only claims Pahvitse brought within one year of the expiration of time for appeal, from the
determination of appeal, or from the determination of a proceeding following an appeal.
B.        This Court Will Uphold the District Court’s Order Simultaneously Dismissing the
          Petition and Denying Appointment of Counsel Because Pahvitse’s Petition Does Not
          Raise the Possibility of a Valid Claim for Relief
          The district court recognized the correct legal standard governing a motion for
appointment of counsel in its order denying Pahvitse’s motion and summarily dismissing her
petition for post-conviction relief. Pahvitse’s petition did not raise the possibility of a valid
claim for relief related to the allegations of the unfiled action plan, the probation officer’s
absence at the probation revocation hearing, or her counsel’s failure to argue for other sentencing



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options. Therefore, this Court will uphold the district court’s order simultaneously dismissing
the post-conviction petition and denying the appointment of counsel.
       1.      Unfiled action plan
       Pahvitse alleges ineffective assistance of counsel concerning an “unfiled action plan” that
Pahvitse was unaware of until she “filed an appeal and recieved [sic] a copy of [her] case.”
Pahvitse alleges counsel was ineffective because counsel “did not look into action plan state in
probation violation report, not included in file” and “the action plan was not given to [her]
neither did [she] sign.” Construing all inferences in her favor, Pahvitse has alleged that her
counsel was ineffective for not giving Pahvitse a copy of the action plan, not having Pahvitse
sign the action plan, and not including the action plan in her file.5
       Pahvitse does not allege facts that connect the action plan to the November 2017
probation revocation. However, to the extent Pahvitse’s claims relate to the November 2017
probation revocation, Pahvitse does not describe what the action plan is; does not include a copy
in the record; does not explain how she was prejudiced by its exclusion; and does not provide
any context for the importance of the document. Pahvitse’s mere reference to a document not in
the record provides no factual basis for which a court can find the possibility of a valid claim for
relief. Without a copy of the document or a verified description thereof, neither the district court
nor this Court could assess why counsel would be ineffective for failing to provide her a copy,
procure her signature, or place the document in her file. Therefore, Pahvitse’s petition did not
allege any facts related to the action plan that give rise to the possibility of a valid claim for post-
conviction relief.
       2.      Probation officer’s absence
       Pahvitse asserts her probation officer’s absence at the probation revocation hearing
constituted a ground for post-conviction relief. Pahvitse does not clarify whether this claim
relates to the April 2016 or the November 2017 probation revocation. Additionally, Pahvitse
provides no explanation of what the probation officer may have said or how the probation
officer’s absence might have impacted the outcome of the proceeding.



5
        On appeal, Pahvitse claims her petition for post-conviction relief alleges her counsel was
ineffective for failure to present an action plan at the probation revocation hearing. However,
even construing all inference in Pahvitse’s favor, this construction is not supported by any
statement contained in her petition or accompanying affidavit.
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        Although the allegations in the officer’s probation violation report constituted the factual
basis for the probation revocation hearing, Pahvitse admitted to the allegations at the hearing.
Pahvitse does not allege facts that indicate any resulting prejudice from the probation officer’s
absence at the disposition hearing. Therefore, Pahvitse’s petition does not raise the possibility of
a valid claim for post-conviction relief regarding this claim.
        Pahvitse did not include her claim related to her probation officer’s absence as an
assertion of ineffective assistance of counsel in her petition. On appeal, however, Pahvitse
argues, construing all inferences in her favor, her petition alleged her counsel was ineffective for
failing to call her probation officer to be present or testify at the probation revocation hearing.
Even under this generous construction, Pahvitse has not asserted the possibility of a valid claim
for relief.
        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). Pahvitse has failed to establish any prejudice as she has not
alleged the outcome of the probation revocation hearing would have been different, particularly
as Pahvitse admitted the probation violation allegations. Thus, her petition does not establish the
possibility of a valid post-conviction claim for ineffective assistance of counsel.
        3.     Counsel’s failure to argue other options
        When the post-conviction petition and affidavit are taken together, Pahvitse alleges her
counsel was ineffective by “not offering options (ex: secondary court, sanction, or discretionary
time)” because her counsel incorrectly believed that Pahvitse had a pending probation violation
that would bar her from alternative sentencing options, like DUI court. Pahvitse argues she
raised the possibility of a valid claim because, construing all inferences in her favor, she alleged
her counsel failed to argue for other sentencing options at the probation revocation hearing and
ineffective assistance of counsel during a probation revocation proceeding is a cognizable claim
for post-conviction relief.
        Construing all inferences in Pahvitse’s favor, she has not alleged the possibility of a valid
claim for relief. Pahvitse’s original sentencing was the only hearing at which: (1) it would have
been appropriate for counsel to argue for alternative sentencing options; and (2) Pahvitse did not
have a pending probation violation. Pahvitse concedes that “[t]o the extent that any of [her]

                                                  7
ineffective assistance of counsel claims relate to her original sentencing . . . they are untimely.”
As previously discussed, any such claim relating to the April 2016 probation revocation is also
untimely. Therefore, because Pahvitse’s claim is untimely, it does not raise the possibility of a
valid claim for post-conviction relief. See Kriebel, 148 Idaho at 190, 219 P.3d at 1206 (holding
failure to file timely petition is a basis for dismissal of petition).
        Even if Pahvitse’s claim relates to the November 2017 revocation, Pahvitse has not
established any prejudice. Prior to the November 2017 hearing, Pahvitse had previously violated
the terms of her probation which resulted in the district court revoking her probation, executing
her original sentence, and retaining jurisdiction. After successfully completing the period of
retained jurisdiction and again being placed on probation, Pahvitse admitted to violating the
terms of her probation. Therefore, the district court revoked Pahvitse’s probation and executed
the underlying sentence.       Pahvitse provides no facts indicating a different outcome was
reasonably possible. Thus, her allegation does not raise the possibility of a valid claim, and the
district court did not err by dismissing the claim on that ground. Because Pahvitse has not
alleged any facts giving rise to a possibly valid claim, the district court did not err in denying her
motion to appoint counsel or in summarily dismissing the petition.
                                                   IV.
                                            CONCLUSION
        Pahvitse had notice of the deficiencies of her petition for post-conviction relief and did
not assert the possibility of a valid claim. First, her claim related to an unfiled action plan did
not provide a factual basis for which a court could find the possibility of a valid claim for relief.
Second, her claim related to the probation officer’s absence at a probation revocation hearing
failed to raise any facts that suggest either counsel’s deficient performance or prejudice. Finally,
Pahvitse’s claim related to her counsel’s failure to argue for other options was untimely and
further did not allege any facts to indicate the possibility of a different outcome. Therefore, this
Court will uphold the district court’s order simultaneously dismissing Pahvitse’s petition for
post-conviction relief and denying her motion for appointment of counsel. Accordingly, the
judgment summarily dismissing Pahvitse’s petition for post-conviction relief is affirmed.
        Judge GRATTON and Judge BRAILSFORD CONCUR.




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