               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 40140

EDWARD DEAN OLSON,                                  )    2013 Unpublished Opinion No. 507
                                                    )
       Petitioner-Appellant,                        )    Filed: May 22, 2013
                                                    )
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STATE OF IDAHO,                                     )    THIS IS AN UNPUBLISHED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. Michael R. McLaughlin, District Judge.

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

       Ellsworth, Kallas & DeFranco, PLLC; Joseph L. Ellsworth, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Edward Dean Olson appeals from the district court’s order summarily dismissing his
petition for post-conviction relief. We affirm.
                                                   I.
                                  FACTS AND PROCEDURE
       Olson pled guilty to possession of a controlled substance, Idaho Code § 37-2732, and
forgery, I.C. § 18-3601. The district court imposed a unified term of seven years with one year
determinate for his possession of a controlled substance conviction and a consecutive unified
term of fourteen years with seven years determinate for his forgery conviction.                On
December 30, 2008, Olson’s counsel filed an Idaho Criminal Rule 35 motion requesting leniency
in his sentence. Thereafter, in early January 2009, a riot occurred at the Idaho State Correctional
Institution where Olson was incarcerated.         Olson allegedly prevented several inmates from
participating in the riot and helped a prisoner who was badly beaten. Following the riot, Olson
claims he tried to inform counsel of his actions during the riot, but counsel allegedly failed to


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communicate with him. On January 27, 2009, the district court denied Olson’s Rule 35 motion.
In an unpublished opinion, this Court determined that the sentences imposed were not excessive.
State v. Olson, Docket No. 36087 (Ct. App. July 23, 2009) (unpublished).
       While the appeal was pending, Olson filed a petition for post-conviction relief. He was
appointed counsel and his counsel filed an amended petition for post-conviction relief. The
petition asserted that trial counsel provided ineffective assistance of counsel for failing to
communicate with Olson following the prison riot and for failing to produce evidence of Olson’s
actions during the riot to the district court for its consideration when determining his Rule 35
motion.   The district court summarily dismissed his motion, finding that Olson failed to
demonstrate prejudice. Olson timely appeals.
                                                II.
                                           ANALYSIS
       Olson claims that the district court erred in failing to conduct an evidentiary hearing
regarding his claim of ineffective assistance of counsel. 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 I.R.C.P. 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).




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       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.


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       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).
       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). To establish prejudice, the petitioner must show a
reasonable probability that, but for the attorney’s deficient performance, the outcome of the trial
would have been different. Aragon, 114 Idaho at 761, 760 P.2d at 1177; Knutsen, 144 Idaho at
442, 163 P.3d at 231. 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).


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        In the instant case, Olson claims that his trial counsel was ineffective for failing to submit
additional information to the district court in support of his Rule 35 motion. Specifically, Olson
argues that his counsel should have informed the court of his actions during the prison riot. The
district court found that no prejudice existed and summarily dismissed his petition. We agree.
As discussed above, to establish prejudice, Olson must show that the outcome would have been
different absent his attorney’s deficient performance. Aragon, 114 Idaho at 761, 760 P.2d at
1177; Knutsen, 144 Idaho at 442, 163 P.3d at 231. In its memorandum decision, the district
court stated:
               In this case, this Court would not have granted Rule 35 relief based upon
        the evidence that the Petitioner had hoped to present to the Court. In reviewing
        the Court’s written Rule 35 decision, the Court’s primary emphasis involving Mr.
        [Olson’s] case was the protection of society. Mr. [Olson] had been involved in
        repeated theft offense cases and in repeated drug usage over the course of
        decades. The Court would have simply viewed this post-sentencing evidence as
        evidence that should be presented to a parole board. The Court would not have
        granted or modified the Petitioner’s sentence in any way, shape, or form if this
        evidence had been forthcoming.

        Olson does not dispute the district court’s finding, but instead argues that the district
court did not properly consider whether his actions during the riot “met the criteria for reduction
of sentence under Rule 35 analysis.”        We disagree.     In presenting a Rule 35 motion, the
defendant must show that the sentence is excessive in light of new or additional information
subsequently provided to the district court in support of the motion. State v. Huffman, 144 Idaho
201, 203, 159 P.3d 838, 840 (2007). The district court considered Olson’s information regarding
his actions during the prison riot, but concluded that the information would not have altered his
sentence. In its decision summarily dismissing Olson’s petition, the district court stated that at
sentencing its primary focus was protection of society, specifically referencing Olson’s long
criminal history and his continual use of controlled substances. In Cowger v. State, 132 Idaho
681, 686, 978 P.2d 241, 246 (Ct. App 1999), we upheld the district court’s summary dismissal of
Cowger’s claim that his counsel was ineffective for failing to file a Rule 35 motion. We noted
that the district court had carefully considered Cowger’s arguments and determined that it would
not have exercised its discretion by reducing his sentence. Thus, we concluded that Cowger had
failed to demonstrate prejudice in counsel’s failure to file a Rule 35 motion. Id. The same
analysis applies in this case.



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                                               III.
                                        CONCLUSION
       Olson has failed to demonstrate reversible error. Accordingly, the district court’s order
summarily dismissing Olson’s petition for post-conviction relief is affirmed.
       Chief Judge GUTIERREZ and Judge MELANSON CONCUR.




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