Nielson v. State, 19374

• Decision Date: 25 March 1992
• Docket Number: No. 19374,19374
• Citation: 828 P.2d 342,121 Idaho 779
• Parties: Dennis L. NIELSON, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

Page 342

828 P.2d 342

121 Idaho 779

Dennis L. NIELSON, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 19374.

Court of Appeals of Idaho.

March 25, 1992.

Kerry D. McMurray, Burley, for petitioner-appellant.

Larry EchoHawk, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., Boise, for respondent.

PER CURIAM.

In this appeal, Dennis Nielson asserts that the district court erred when it dismissed his application for post-conviction relief. For the reasons stated below, we affirm.

The facts and procedural background for this case may be stated briefly. Nielson pled guilty to two counts of lewd and lascivious conduct with a minor. On August 29, 1985, he received two concurrent eighteen-year indeterminate sentences. No appeal was taken from the conviction or sentences. Instead, Nielson filed a motion under I.C.R. 35 to have his sentences reduced, which the court granted, reducing the sentences to twelve years.

On August 28, 1990, Nielson applied for post-conviction relief, alleging that his guilty pleas were coerced and that the state had illegally obtained evidence against him. He requested that his sentences be reduced to probation. The state answered, denied Nielson's allegations, and moved for summary judgment and dismissal of the petition.

Following a hearing, the court indicated its intent to grant the state's motion and notified Nielson that he could reply to the proposed dismissal. No reply was filed, and after a second hearing the court dismissed the petition. Nielson appeals.

An application for post-conviction relief initiates a special proceeding in which the applicant bears the burden of pleading and proof imposed upon a civil plaintiff. Clark v. State, 92 Idaho 827, 452 P.2d 54 (1969). The issue on appeal from a summary dismissal of an application is whether the application alleges facts which, if true, would entitle the applicant to relief. Whitehawk v. State, 116 Idaho 831, 780 P.2d 153 (Ct.App.1989). Disposition on the pleadings is not proper if the allegations in the pleadings frame a material issue of fact. I.C. § 19-4906(b). Allegations are deemed to be true until they are in some manner controverted by the state. King v. State, 114 Idaho 442, 757 P.2d 705 (Ct.App.1988); Baruth v. Gardner, 110 Idaho 156, 715 P.2d 369 (Ct.App.1986). However, a conclusory allegation, unsubstantiated by any fact, is insufficient to entitle a petitioner to an evidentiary hearing. Id. Affidavits, records, or other evidence supporting the allegations must be attached to the application or the application must state why they are not attached. Id.; I.C. § 19-4903. Unsupported allegations entitle the court to summarily dispose of the application. Phillips v. State, 108 Idaho 405, 700 P.2d 27 (1985).

In his petition, Nielson stated his grounds for relief as follows:

(A) Petitioner[']s guilty pleas were obtained through coercion, duress, or otherwise undue illegal tactics, to wit: investigating officer used threats against personal friends to coerce a guilty plea and to submit to questioning without aid of counsel;

(B) Evidence used against Petitioner was illegally obtained in violation of [P]etitioner's rights under the 5th, 6th, and 14th Amendments of the U.S. Constitution;

Nielson did not support these claims with affidavits, documents, or any evidence to support his allegations. While Nielson reserved the right to amend his petition prior to trial "should discovery...