243 P.3d 675 (Idaho App. 2010), 36299, Baxter v. State

Docket Nº:36299.
Citation:243 P.3d 675, 149 Idaho 859
Opinion Judge:PERRY, Judge Pro Tem.
Party Name:Joseph Jackson BAXTER, Petitioner-Appellant, v. STATE of Idaho, Respondent.
Attorney:Nevin, Benjamin, McKay & Bartlett LLP, Boise, for appellant. Jeffrey Brownson argued. Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy Attorney General, Boise, for respondent. Nicole L. Schafer argued.
Judge Panel:Judge GRATTON and Judge MELANSON concur.
Case Date:July 09, 2010
Court:Court of Appeals of Idaho
 
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Page 675

243 P.3d 675 (Idaho App. 2010)

149 Idaho 859

Joseph Jackson BAXTER, Petitioner-Appellant,

v.

STATE of Idaho, Respondent.

No. 36299.

Court of Appeals of Idaho.

July 9, 2010

Review Denied Nov. 30, 2010.

Page 676

[Copyrighted Material Omitted]

Page 677

[149 Idaho 861] Nevin, Benjamin, McKay & Bartlett LLP, Boise, for appellant. Jeffrey Brownson argued.

Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy Attorney General, Boise, for respondent. Nicole L. Schafer argued.

PERRY, Judge Pro Tem.

Joseph Jackson Baxter appeals from the district court's order summarily dismissing in part his petition for post-conviction relief and denying the remainder of the petition after an evidentiary hearing. For the reasons set forth below, we affirm.

I.

BACKGROUND

In the underlying criminal case, Baxter was charged with injuring a jail in violation of Idaho Code § 18-7018 for forcibly removing a telephone off of the wall in the block where his cell was located. Baxter was found guilty following a jury trial. He was sentenced to a unified term of six years, with one year fixed and five years indeterminate. Baxter appealed his sentence and it was affirmed by this Court. State v. Baxter, Docket No. 32668 (Ct.App. Jan. 3, 2007) (unpublished).

Baxter filed a petition for post-conviction relief alleging among other things that I.C. § 18-7018 is unconstitutional, that his trial counsel was ineffective for failing to argue that he did not injure the jail, and that his appellate counsel was ineffective for failing to raise any issue other than imposition of an excessive sentence. The district court appointed counsel to represent Baxter in the post-conviction proceedings. The state filed an answer to the petition as well as a motion for summary dismissal. The district court then filed a notice of intent to dismiss Baxter's petition stating specifically that the dismissal was for the reasons set forth in the state's brief. Baxter filed a response to the court's notice of intent to dismiss arguing that he received ineffective assistance of trial and appellate counsel because his counsel did not argue that the injured telephone was not owned by the jail and he was convicted of a crime he did not commit. The district court subsequently issued an order summarily dismissing the majority of Baxter's claims. However, with regard to his claim that I.C. § 18-7018 is unconstitutional, the district court dismissed on grounds that were different from the grounds it specified in the notice of intent to dismiss and the grounds contained in the state's brief. As for his remaining claims, the district court granted an evidentiary hearing on the issues of whether the jail owned the phone, and whether trial and appellate counsel were ineffective for failing to argue that Baxter's actions did not fall within the injury to jails statute. After the hearing, the district court dismissed the remainder of Baxter's claims. Baxter appeals the dismissal of his petition for post-conviction relief.

II.

STANDARD OF REVIEW

An application for post-conviction relief initiates a proceeding that 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). As with a plaintiff in a civil action, the applicant must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. I.C. § 19-4907; Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct.App.1990). An application for post-conviction relief differs from a complaint in an ordinary civil action. An application must contain much more than " a short and plain statement of the claim" that would suffice for a complaint under Idaho Rule of Civil Procedure 8(a)(1). Rather, an application for post-conviction relief must be verified with respect to facts within the personal knowledge of the applicant, and affidavits, records

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[149 Idaho 862] or other evidence supporting its allegations must be attached, or the application must state why such supporting evidence is not included with the application. I.C. § 19-4903. In other words, the application must present or be accompanied by admissible evidence supporting its allegations, or the application will be subject to dismissal.

Idaho Code § 19-4906 authorizes summary dismissal of an application for post-conviction relief, either pursuant to motion of a party or upon the court's own initiative. Summary dismissal of an application is the procedural equivalent of summary judgment under I.R.C.P. 56. " A claim for post-conviction relief will be subject to summary dismissal ... if the applicant has not presented evidence making a prima facie case as to each essential element of the claims upon which the applicant bears the burden of proof." DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009) (quoting Berg v. State, 131 Idaho 517, 518, 960 P.2d 738, 739 (1998)). Thus, summary dismissal is permissible when the applicant's evidence has raised no genuine issue of material fact that, if resolved in the applicant's favor, would entitle the applicant to the requested relief. If such a factual issue is presented, an evidentiary hearing must be conducted. State v. Payne, 146 Idaho 548, 561, 199 P.3d 123, 136 (2008); Goodwin v. State, 138 Idaho 269, 272, 61 P.3d 626, 629 (Ct.App.2002). Summary dismissal of an application for post-conviction relief may be appropriate, however, even where the State does not controvert the applicant's...

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