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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 46343

STATE OF IDAHO,

Plaintiff-Respondent,

v.

LARRY MARVIN SEVERSON,

Defendant-Appellant.

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Filed: April 17, 2020

Karel A. Lehrman, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, 

Elmore County. Hon. Nancy Baskin, District Judge. 

Order denying leave to file successive petition for post-conviction relief, affirmed.

Larry M. Severson, Boise, pro se appellant. 

Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney 

General, Boise, for respondent. 

________________________________________________

GRATTON, Judge 

Larry M. Severson appeals from the district court’s order summarily dismissing his 

successive petition for post-conviction relief. For the reasons set forth below, we affirm. 

I.

FACTUAL AND PROCEDURAL BACKGROUND

In 2004, a jury found Severson guilty of first degree murder and poisoning in connection 

with the 2002 death of his wife. The district court sentenced Severson to life without the possibility 

of parole for the murder and to a concurrent sentence of five years for the poisoning. After an 

appeal, Severson’s conviction and sentence were upheld by the Idaho Supreme Court, and a 

remittitur was issued on September 9, 2009. State v. Severson, 147 Idaho 694, 700-01, 215 P.3d 

414, 420-21 (2009).

In October 2009, Severson filed his first petition for post-conviction relief. The district 

court denied the petition and Severson appealed. This Court reversed the district court’s order and 

remanded for further proceedings. At the State’s request, the Idaho Supreme Court reviewed the 
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decision, and on December 23, 2015, the Court vacated the district court’s decision and remanded 

the case for further proceedings. Severson v. State, 159 Idaho 517, 363 P.3d 358 (2015) (“Severson 

II”). The district court held an evidentiary hearing and dismissed the first petition. Severson 

appealed and this Court affirmed in an unpublished opinion. Severson v. State, Docket No. 45780 

(Ct. App. April 24, 2019). In May 2014, Severson filed his first successive petition for postconviction relief. He alleged that post-conviction counsel failed to raise issues related to expert 

testimony. The district court declined to permit Severson to file the successive petition and 

dismissed the claims. After the district court denied Severson’s motion for reconsideration, he 

appealed. In an unpublished decision this Court affirmed. Severson v. State, Docket No. 42594 

(Ct. App. April 11, 2016).

In October 2016, Severson filed a motion for leave to file a second successive petition for 

post-conviction relief. In his second successive petition, Severson alleged that he had discovered 

new evidence regarding the effect of certain medications on female patients and asserted claims of 

ineffective assistance of appellate and post-conviction counsel for failing to raise Confrontation 

Clause claims, prosecutorial misconduct, improper jury instructions, and cumulative error. The 

district court issued a notice of intent to dismiss and Severson filed a motion to stay pending the 

outcome of Severson II. The district court denied the motion to stay and dismissed the successive 

petition.

In 2018, Severson filed a motion for leave to file his third successive petition1for postconviction relief, alleging newly discovered evidence, which is the subject of this appeal (“Third 

Successive Petition”). Severson claimed that recent medical literature on the drug Ambien relative 

to female patients undercuts the medical testimony at trial and the reliability of the jury’s verdict. 

The district court entered a notice of intent to dismiss the petition and denied Severson’s request 

for counsel. It stated that Severson’s grounds for seeking a new trial were previously adjudicated 

and the same issues were raised at trial. Additionally, the district court stated that Severson failed 

to satisfy the requirements for a new trial; the evidence would still support the jury’s verdict; and 

 

1 Severson filed a motion for leave to file a successive application for a new trial. This was 

construed by the district court to be his third successive petition. This motion was filed in the 

underlying criminal matter and has never been litigated as a new, civil matter.
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the court would not grant leave to file a successive petition while the appeal of an earlier petition 

was pending.

The district court held a hearing on its notice of intent to dismiss. Severson argued it was 

important that his case be given a new case number so he would have the opportunity to “perfect” 

his petition. Without addressing the request, the district court denied the motion for leave to file a 

successive petition and dismissed Severson’s successive petition. In its order, the district court

held that the issues were previously litigated in prior proceedings; Severson failed to satisfy the 

elements necessary for a new trial as the evidence would not undermine the jury’s verdict; and 

leave would not be granted while the prior appeal is pending. Severson then filed a motion 

requesting a civil case number be assigned to the petition; the district court denied the motion. 

Severson timely appeals. 

II.

STANDARD OF REVIEW

A petition for post-conviction relief initiates a proceeding that is civil in nature. I.C. § 19-

4907; Rhoades v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009); State v. Bearshield, 104 

Idaho 676, 678, 662 P.2d 548, 550 (1983); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 

1326 (Ct. App. 1992). All claims for post-conviction relief must be raised in an original, 

supplemental, or amended petition. I.C. § 19-4908. An original petition must be filed within one 

year from the expiration of the time for appeal, from the determination of an appeal, or from the 

determination of a proceeding following an appeal, whichever is later. I.C. § 19-4902(a). If an 

initial post-conviction action was timely filed, an inmate may file a subsequent petition outside of 

the one-year limitation period if the court finds a ground for relief asserted which for sufficient 

reason was not asserted or was inadequately raised in the original, supplemental, or amended 

petition. I.C. § 19-4908; Charboneau v. State, 144 Idaho 900, 904, 174 P.3d 870, 874 (2007). 

Analysis of sufficient reason permitting the filing of a successive petition includes an analysis of 

whether the claims being made, which were not known when the original petition was filed, were 

asserted within a reasonable period of time, once those claims were known. Charboneau, 144 

Idaho at 905, 174 P.3d at 875.
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III.

ANALYSIS

The district court denied Severson’s motion for leave to file a third successive petition

because he asserted issues that were previously adjudicated, failed to satisfy the elements for a 

new trial, and had an appeal pending in a prior case. Severson argues the district court erred. The 

State contends that the denial order is void because the district court did not have the jurisdiction 

to consider a civil motion in a criminal case and, alternatively, that the district court otherwise 

correctly denied the motion. For the reasons set forth below we affirm.

A. The District Court Had Jurisdiction to Rule on Severson’s Motion

As an initial matter, we address the State’s argument that the district court lacked

jurisdiction to rule on Severson’s motion. “Whether a court lacks jurisdiction is a question of law 

that may be raised at any time.” State v. Jones, 140 Idaho 755, 757, 101 P.3d 699, 701 (2004). 

Over questions of jurisdiction we exercise free review. State v. Barros, 131 Idaho 379, 381, 957 

P.2d 1095, 1097 (1998). 

Neither party contests the procedural history: the underlying judgment was entered in 2005 

and affirmed on appeal in 2009. The State asserts that once the remittitur issued, the district court’s 

jurisdiction expired and, specifically, that post-conviction issues may never be litigated in the 

underlying criminal case. Citing State v. Jakoski, 139 Idaho 352, 355, 79 P.3d 711, 714 (2003),

the State argues that because post-conviction proceedings are civil in nature and separate from 

criminal proceedings, a motion filed in a criminal case cannot be considered as a pleading 

commencing civil litigation. This assertion is correct. A district court’s jurisdiction is completed 

upon the entry of the judgment and sentence or its affirmance on appeal. State v. Pratt, 128 Idaho 

207, 211, 912 P.2d 94, 98 (1996). Unless a statute or rule provides otherwise, the trial court’s 

jurisdiction expires once the judgment becomes final, either by expiration of the time for appeal 

or affirmance of the judgment on appeal. State v. McIntosh, 160 Idaho 1, 6, 368 P.3d 621, 626 

(2016). On this point, the Idaho Supreme Court held in Jakoski that: “It would be too much of a 

stretch to hold that a motion filed in a criminal case can be considered as a pleading commencing 

civil litigation.” Jakoski, 139 Idaho at 355, 79 P.3d at 714. 

Recently, the Idaho Supreme Court revisited the issue in State v. Hooley, ____ Idaho ____, 

____ P.3d ____ (March 9, 2020). In Hooley, the motion was filed in the criminal case. In 

determining whether the district court erred in its construction of an ambiguous motion, which 
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could have properly been construed as a criminal motion or a petition for post-conviction relief,

the Court stated: 

[T]he issue in this case arises at the juncture before a filing occurs in either the 

underlying criminal case or a post-conviction proceeding. Those proceedings are 

like parallel railroad tracks. Jakoski stresses that once a filing is placed on the 

criminal track, no switch exists to transfer it to the post-conviction track. Thus, the 

party seeking relief must make clear its intent to place the issue on one track to the 

exclusion of the other. Here, because Hooley’s filing presented an issue that could 

be set on either track, Hooley was required to sufficiently indicate to the district 

court that his filing should be placed on the post-conviction track.

. . . .

As filed, Hooley’s submission failed to demonstrate the clear intent to file 

a petition for post-conviction relief.

Id. at ____, ____ P.3d at ____ (emphasis added). The reasoning in Hooley indicates Jakoski

applies when a filing is intentionally placed on the “criminal track.” In other words, a filing cannot 

intentionally be filed in the underlying criminal matter with the intent of litigating a civil matter. 

However, under the circumstances of this case, while Severson did file his motion with the criminal 

case number, his intent was clear; the pleading identified he was seeking to file a petition for postconviction relief and asked repeatedly that the case be given a civil case number. As required by 

Hooley, Severson made clear his intent to place his issue on the civil track as opposed to the 

criminal one. It appears the district court adhered to the substance-over-form approach 

acknowledged in Dionne v. State, 93 Idaho 235, 237, 459 P.2d 1017, 1019 (1969), treating the 

motion as a successive petition for post-conviction relief. As acknowledged by Hooley, a district 

court may properly treat a filing as a petition for post-conviction relief when the petitioner clearly 

states the intent to do so. Accordingly, Severson did not file a criminal motion which commenced 

a civil proceeding, he filed a motion which the district court, per his request, properly construed 

as a petition for post-conviction relief, even though the district court did not direct that the motion 

be given a civil case number. For these reasons, we cannot say the district court lacked jurisdiction 

to consider Severson’s motion. 

B. The District Court Did Not Err by Denying Severson’s Third Successive Petition for 

Post-Conviction Relief

1. Severson failed to challenge the alternative bases for denial of the motion

The district court determined Severson’s third successive petition for post-conviction relief 

had not raised any new issues not previously litigated and failed to establish each element of the 

standard under which requests for new trials are evaluated. Additionally, the district court refused 
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to grant the motion while a prior appeal was pending. In his opening brief on appeal, Severson: 

(1) argues that at the time of his trial certain dangers and lethality of sleep-aid medications with 

females was not as well known, (2) points to the literature and physician letter he submitted, and 

(3) claims that the district court erred in failing to find a genuine issue of material fact as to whether 

his wife accidently died from an overdose. Severson does not address the district court’s holding 

that the issue has already been litigated or that a successive petition is inappropriate while a prior 

petition remained pending on appeal. We, therefore, affirm on these alternative grounds.

As to the issue having been previously litigated, the district court noted that the issue of 

the role of medications in Mrs. Severson’s death was litigated at trial, on direct appeal, and the 

first petition for post-conviction relief. The district court stated:

Petitioner currently argues that there is n[e]w evidence that shows that 

Ms. Severson may have died from an accidental Ambien overdose. Petitioner’s

assertion that he is entitled to a new trial based on newly-discovered evidence 

supporting the same theory of the case takes an overly narrow view of what 

constitutes previously litigated issue for the purposes of post-conviction relief. 

Such an interpretation is inconsistent with the Supreme Court’s ruling in 

Charboneau, which was clear that an issue or theory that has been argued in earlier 

proceedings is considered to have been litigated, and is thus barred from subsequent 

proceedings. Therefore, as explained in the Court’s Notice of Intent to Dismiss, 

because Petitioner has previously argued that evidence suggests the substances 

found in Ms. Severson’s body might have caused her accidental death, Petitioner is 

not entitled to file a successive petition for post-conviction relief based on the same 

issue. 

As to the pendency of the prior appeal, the district court stated that the pending appeal could moot 

the presently advanced claims, and that judicial economy would not be served by allowing another 

successive petition. 

An appellant’s failure to address an independent ground for a summary dismissal is fatal 

to the appeal. Weisel v. Beaver Springs Owners Ass’n, Inc., 152 Idaho 519, 525, 272 P.3d 491, 

497 (2012). The fact that one of the grounds may be in error is of no consequence and may be 

disregarded if the judgment is sustained upon one of the other grounds. AED, Inc. v. KDC 

Investments, LLC, 155 Idaho 159, 164, 307 P.3d 176, 181 (2013). Thus, if an appellant fails to 

contest all of the grounds upon which a district court based its grant of summary dismissal, the 

judgment must be affirmed. Id. Because Severson fails to address all the grounds upon which the 

district court based its order, we affirm the order. 
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2. Severson failed to satisfy the element necessary for a new trial

Even if we review the district court’s holding that Severson failed to satisfy the elements 

necessary for a new trial, Severson has shown no error. Severson claims he should be entitled to 

a new trial because he discovered new evidence addressing the medical community’s current 

understanding of the side effects and proper dosages of Ambien, especially for females, which has 

evolved since his trial in 2004. He claims that the current evidence indicates that the medical 

testimony at trial was not accurate and the jury’s verdict is not reliable. On the other hand, the 

district court concluded that:

In addition, Petitioner argues that if he were allowed to proceed with his 

new evidence, “a jury would be faced with competing medical opinions in 

determining whether there is a reasonable doubt as to guilt.” Pet.’s Mem. at 9.

However, that was also the case at Petitioner’s trial, and was addressed on appeal.

As explained above, the Supreme Court noted that the evidence supported both

possible causes of Mary’s death, and the inability to definitively eliminate one did

[not] preclude the jury from convicting Petitioner. Id. The Court also found that 

there was substantial circumstantial evidence linking Petitioner to Mary’s death, 

including a motive and opportunity, another recent poisoning attempt, and 

Petitioner’s efforts to prepare people for her death and conceal the circumstances 

surrounding her death. Id. at 714, 215 P.3d at 434. Therefore, even excluding the 

allegedly outdated medical testimony, sufficient evidence existed for a jury to 

convict Petitioner, and for the Supreme Court to affirm that verdict on appeal. As 

a result, the Court cannot conclude that new evidence that is consistent with the 

evidence already admitted at trial is likely to lead to Petitioner’s acquittal at a new 

trial.

“The request for a new trial in a post-conviction proceeding based on newly discovered

evidence is the same as a motion for new trial subsequent to a jury verdict.” Johnson v. State, 156 

Idaho 7, 12, 319 P.3d 491, 496 (2014). Thus, Petitioner must establish:

(1) that the evidence is newly discovered and was unknown to the defendant at the 

time of trial; (2) that the evidence is material, not merely cumulative or impeaching; 

(3) that it will probably produce an acquittal; and (4) that the failure to learn of the 

evidence was due to no lack of diligence on the part of the defendant.

Id. “Whether a fact is material is determined by its relationship to the legal theories presented by

the parties.” Id.

The district court concluded that the new evidence would not likely produce an acquittal 

and, therefore, Severson’s claims do not satisfy the elements necessary for a new trial. We agree. 

Severson has failed to show that the district court erred in denying his motion to file a successive 

petition.
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IV.

CONCLUSION

Because the district court did not lack jurisdiction, we hold it properly denied Severson’s 

order, which was construed as a third successive petition for post-conviction relief. Because 

Severson failed to assign error to all the district court’s determinations on appeal and because 

Severson’s claims fail to show a basis for a new trial, we affirm the dismissal of his petition for 

post-conviction relief. 

Judge BRAILSFORD and Judge Pro Tem MELANSON CONCUR.