IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 50160

STEVEN KENNETH BOWMAN,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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Filed: June 20, 2024

Melanie Gagnepain, 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THIS IS AN UNPUBLISHED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, Ada

County. Hon. Cynthia Yee-Wallace, District Judge. 

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

Nevin, Benjamin & McKay, LLP; Dennis Benjamin, Boise, for appellant. 

Hon. Raúl R. Labrador, Attorney General; Kale D. Gans, Deputy Attorney General, 

Boise, for respondent. 

________________________________________________

MELANSON, Judge Pro Tem 

Steven Kenneth Bowman appeals from a judgment summarily dismissing his petition for 

post-conviction relief. We affirm. 

I.

FACTUAL AND PROCEDURAL BACKGROUND

In Bowman’s underlying criminal case, he was charged with aggravated battery. 

I.C. §§ 18-903(a), 18-907, 18-204, and 19-2520F. His case was initially consolidated with that of 

a codefendant. The information filed April 27, 2017, alleged that Bowman caused great bodily 

harm to another with a razor blade or similar weapon while housed at a correctional facility. A 

preliminary hearing was set for June 8, 2017; was reset for June 28, 2017; and was finally held on 

July 25, 2017. Bowman was bound over to the district court. Initially, Bowman and his 

codefendant were represented by the public defender’s office. After the preliminary hearing,

conflict counsel was appointed to represent Bowman. Bowman waived a formal reading of the 
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charge, pled not guilty, and was informed of the possible consequences if a jury found him guilty 

of the alleged offense. Thereafter, the State filed an Information Part II alleging Bowman to be a 

persistent violator of the law. I.C. § 19-2514. 

Bowman’s case proceeded to a trial, and he was found guilty of aggravated battery and 

admitted to being a persistent violator. The trial court sentenced Bowman to a unified term of 

thirty years, with a minimum period of confinement of twelve years, to run consecutively to his

other sentences. The judgment of conviction was affirmed by this Court in an unpublished opinion. 

See State v. Bowman, Docket No. 46332 (Ct. App. Dec. 4, 2019). 

Bowman filed a pro se petition for post-conviction relief1and counsel was appointed. 

Based on stipulation of the parties and the new appointment of counsel, Bowman filed an amended 

petition for post-conviction relief alleging several instances of ineffective assistance of counsel. 

The State filed a motion for summary dismissal, to which Bowman filed an objection. The district 

court held a hearing and granted the State’s motion for summary dismissal. Bowman appeals.2

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). Like a plaintiff in a civil action, the petitioner must prove by a 

preponderance of evidence the allegations upon which the request for post-conviction relief is 

based. 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. Dunlap v. State, 141 

Idaho 50, 56, 106 P.3d 376, 382 (2004). A petition must contain much more than a short and plain 

1 Bowman actually filed a document entitled “Motion of Notice Seeking Post-Conviction 

Relief.” The district court did not treat this document as a petition, but the State filed responsive 

pleadings and the matter proceeded on an amended petition after counsel was appointed for 

Bowman.

2 Bowman’s opening brief does not comply with I.A.R 35 which requires that a concise 

statement of the facts in the “statement of the case” section of the brief be included. Bowman 

instead added facts to individual analysis sections. 
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statement of the claim that would suffice for a complaint under I.R.C.P. 8(a)(1). Rather, a petition 

for post-conviction relief 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 with the petition. I.C. 

§ 19-4903. In other words, the petition must present or be accompanied by admissible evidence 

supporting its allegations or the petition will be subject to dismissal. Wolf v. State, 152 Idaho 64, 

67, 266 P.3d 1169, 1172 (Ct. App. 2011). 

Idaho Code Section 19-4906 authorizes summary dismissal of a petition for 

post-conviction relief, either pursuant to a motion by a party or upon the court’s own initiative, if 

it appears from the pleadings, depositions, answers to interrogatories, and admissions and 

agreements of fact, 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. 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. Roman v. State, 125 Idaho 644, 647, 

873 P.2d 898, 901 (Ct. App. 1994); Baruth v. Gardner, 110 Idaho 156, 159, 715 P.2d 369, 372 

(Ct. App. 1986). Moreover, the district court, as the trier of fact, is not constrained to draw 

inferences in favor of the party opposing the motion for summary disposition; rather, the district 

court is free to arrive at the most probable inferences to be drawn from uncontroverted evidence. 

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. Id. 

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); DeRushé 

v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). 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 
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the State does not controvert the petitioner’s evidence. See Roman, 125 Idaho at 647, 873 P.2d at 

901.

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); 

Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). If a genuine issue of 

material fact is presented, an evidentiary hearing must be conducted to resolve the factual issues. 

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); Sheahan, 146 Idaho at 104, 190 P.3d at 923. Over questions of law, we exercise free 

review. Rhoades, 148 Idaho at 250, 220 P.3d at 1069; Downing v. State, 136 Idaho 367, 370, 33 

P.3d 841, 844 (Ct. App. 2001). 

III. 

ANALYSIS

Bowman presents three issues on appeal, arguing that the district court erred in dismissing 

his ineffective assistance of counsel claims. Specifically, Bowman argues that his preliminary 

hearing attorney was ineffective for informing Bowman of a plea offer from the State only five 

minutes before the preliminary hearing, which offer would be withdrawn if the case proceeded to 

a hearing; that his preliminary hearing attorney was ineffective for failing to inform Bowman that 

the State would file a persistent violator allegation (Information Part II) if he did not accept the 

offer; and, that his trial counsel was ineffective for advising him to proceed to trial based on trial 

counsel’s erroneous understanding of applicable law and failing to explain to Bowman the 

consequences of pleading guilty to the Information Part II.

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, 
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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). The 

constitutional requirement for effective assistance of counsel is not the key to the prison for a 

defendant who can dredge up a long series of examples of how the case might have been tried 

better. Ivey v. State, 123 Idaho 77, 80, 844 P.2d 706, 709 (1992); Thomas v. State, 145 Idaho 765, 

770, 185 P.3d 921, 926 (Ct. App. 2008). 

A. Plea Offer

Bowman argues that his preliminary hearing attorney was ineffective for failing to consult 

with Bowman regarding a plea offer from the State until five minutes before his preliminary 

hearing. He argues this prejudiced him because, if he had more time to consider the plea offer 

from the State, he would have agreed to plead guilty prior to the preliminary hearing and received 

a lesser sentence. In support of his argument, Bowman compares his sentence with that of his 

codefendant who pled guilty and received a lesser sentence than Bowman. Bowman argues that, 

if he had agreed to plead guilty prior to the preliminary hearing, his sentence would be more like 

that of his codefendant. The district court dismissed this claim for Bowman’s failure to present 

any admissible evidence that his preliminary hearing attorney failed to present the offer to 

Bowman and to explain the offer would be revoked if not accepted before the case proceeded to

the preliminary hearing.

Bowman relies on the United States Supreme Court’s statement of the general rule that 

defense counsel fails to render effective assistance when counsel does not allow the defendant to 

consider a plea agreement offered by the prosecution. See Missouri v. Frye, 566 U.S. 134, 145 

(2012) (holding that defense counsel rendered deficient performance by failing to consult with the 
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defendant regarding the State’s offers before their expiration over a month after they were 

proffered to defense counsel). Bowman also relies on Idaho Rule of Professional Conduct 1.4(a) 

that provides an attorney must “promptly inform the client of any decision or circumstance with 

respect to which the client’s informed consent” is required. Bowman also references the 

commentary to that rule which provides that an attorney who receives a proffered plea bargain in 

a criminal case must promptly inform the client of its substance. Bowman argues that his 

preliminary hearing attorney’s performance was deficient under Frye because the plea offer was 

not relayed to him until five minutes before it expired, thereby making him unable to consider it

before the hearing at which point the offer expired if it was not accepted. Additionally, Bowman 

argues that, because he believes the plea offer was communicated to his preliminary hearing 

attorney well before the preliminary hearing, his preliminary hearing attorney violated the Idaho 

Rules of Professional Conduct by not promptly informing Bowman of the plea offer. 

The State argues that, because the record does not reflect when the State presented 

Bowman’s preliminary hearing attorney with the plea offer, there was no evidence from which to 

conclude that Bowman’s preliminary hearing attorney acted unreasonably by communicating the 

offer to Bowman five minutes before the preliminary hearing. Further, the State argues that many 

of Bowman’s arguments are speculative: whether the State would have filed the persistent violator 

enhancement before Bowman entered his plea if he accepted the plea offer, whether the trial court 

would have accepted the offer, or whether Bowman would have accepted the offer if given more 

time before the preliminary hearing. We agree that Bowman failed to present sufficient evidence 

to survive summary dismissal of his claim.

To avoid summary dismissal, a post-conviction claim of ineffective assistance of counsel 

must sufficiently allege facts under both prongs of the Strickland test. Roman, 125 Idaho at 649, 

873 P.2d at 903. Facts must be in the form of competent, admissible evidence; bare assertions and 

speculation, unsupported by the facts, are insufficient. Id. Bowman’s case is distinguishable from 

Frye, on which he relies, regarding timeliness because the defendant in Frye was never notified of 

any plea offers from the State before the offers expired. Bowman, however, concedes that he was 

notified of the offers before the preliminary hearing. Further, Bowman failed to provide more than 

unsupported speculative assertions regarding the time his preliminary hearing attorney received

the State’s plea offer.
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Bowman fails to cite the record or transcript indicating when his preliminary hearing 

attorney was tendered the plea offer from the State. Rather, Bowman only concludes that, 

considering there were three months between the charging date and the preliminary hearing date, 

it is a reasonable inference that the offer was tendered well before the day of the preliminary 

hearing. He asserts that a further reasonable inference would be that the State made the offer 

before the original preliminary hearing date--June 8. Bowman’s arguments are speculative. It is 

just as probable that the State proffered the plea agreement to preliminary hearing counsel 

immediately preceding the moment Bowman was notified of the plea offer. We cannot presume 

deficient performance based on Bowman’s speculative assertions.

Furthermore, Bowman has not shown prejudice caused by the disclosure of the plea offer 

prior to its withdrawal. The Supreme Court in Frye held that prejudice must be shown by a 

reasonable probability that had the plea offer been accepted by the defendant, the State would not 

have changed the offer, and the trial court would not have rejected the offer. Frye, 566 U.S. at 

147. The Supreme Court held that the defendant later pleading guilty to a less favorable outcome 

demonstrated a reasonable probability that he would have accepted the offers that were not relayed 

to him. However, Bowman did not plead guilty but, rather, proceeded to trial. Bowman asks this 

Court to speculate that he would have accepted the offer prior to the preliminary hearing if he were 

able to consider the offer longer, but there is no evidence that the State would have given him more 

time to consider the offer. Bowman has not alleged competent facts and admissible evidence to 

satisfy his burden under Roman.

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B. Persistent Violator Enhancement (Information Part II)

Bowman argues that his preliminary hearing attorney’s failure to inform Bowman of the 

possibility of the State filing the persistent violator enhancement was deficient performance. 

Bowman supports this argument by concluding that, if he knew at the time of entering a not guilty 

3 We note that Bowman could have pled guilty at any time had he wished to do so. 

Expiration of the State’s offer would not prevent Bowman from pursuing the same or a similar 

resolution prior to trial.
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plea4that the State would have filed the persistent violator enhancement, he would not have 

proceeded to trial but would have pled guilty. Bowman argues that he was prejudiced by being 

sentenced to thirty years (for aggravated battery with the persistent violator enhancement) rather 

than the maximum sentence for aggravated battery--fifteen years. He argues that “counsel would 

have been aware” that Bowman “had six prior felonies” and that he “would have followed the path 

of his co-defendant” and received less determinate time. Bowman asserts that the State regularly 

presents plea offers to defendants at the preliminary hearing stage so that, if accepted, the State

will not have to subpoena witnesses and prepare for trial. Conversely, Bowman asserts that if the 

defendant does not agree to the plea offer then the State will file a persistent violator enhancement. 

Bowman’s argument would require us to speculate that his preliminary hearing attorney 

knew the State would file the persistent violator enhancement several months later, and that 

Bowman would have accepted the State’s offer if he knew of this possibility. Not only is this 

assertion speculative, it is also contradicted by the available evidence. Bowman has failed to show 

a reasonable probability that, had he known about the possibility of the State filing the 

enhancement, he would have agreed to waive the preliminary hearing and plead guilty and would 

have received a lesser sentence. 

Bowman also argues that his trial counsel’s performance was deficient because Bowman

was not formally arraigned on the persistent violator enhancement and that if he had been 

arraigned, he would have pled guilty to the substantive charge and the enhancement and that there 

is a reasonable probability he would have received a lesser sentence for taking responsibility. The 

district court found, and the State does not dispute, that there is no evidence that Bowman was 

formally arraigned on the persistent violator enhancement. However, it is clear from the transcript 

that Bowman understood the possible sentencing outcomes before he admitted to the enhancement. 

Prior to admitting to being a persistent violator, Bowman was informed by the trial court of the 

minimum sentence of five years if he was convicted and the maximum term of life imprisonment 

4 Bowman’s preliminary hearing attorney was not representing him when he entered a not 

guilty plea. It appears that this part of Bowman’s argument relates to his preliminary hearing 

attorney’s alleged failure to inform him that the State could file a persistent violator enhancement 

if he did not accept the offer made prior to the preliminary hearing.
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as well as his right to place the burden on the State to prove the enhancement beyond a reasonable 

doubt. Bowman acknowledged that he did not need more time to talk to his attorney, waived his 

right to require the State to prove the enhancement, acknowledged the minimum sentence of an 

additional five years and maximum possible sentence of life in prison, and admitted to being a 

persistent violator of the law. The district court dismissed this claim for failure to show prejudice. 

Although Bowman was not arraigned on the enhancement, he has made no more than 

speculative conclusory statements that an arraignment or formal reading prior to trial would have 

caused him to plead guilty and that the trial court would have imposed a lesser sentence. Further, 

this argument is unrelated to the deficient performance Bowman argues on appeal. On appeal, 

Bowman argues that the deficient performance occurred prior to the preliminary hearing. The 

absence of an arraignment for the Information Part II is irrelevant to the deficient performance 

alleged because the State did not file the persistent violator enhancement until several months after 

the preliminary hearing. The district court did not err in dismissing this claim.

C. Ineffective Assistance of Trial Counsel

In his amended petition, Bowman alleged that he “advised his trial counsel of his desire to 

plead guilty, based on the strength of the[S]tate’s case in light of the breadth of Idaho’s law on 

complicity” but asserts that, “based on an obvious misunderstanding of the law, his trial attorney 

advised against any plea offer on the erroneous basis that [Bowman’s] conduct could not be 

covered by the aiding and abetting statute.” Bowman’s amended petition also alleges “trial counsel 

received an extra $20,000.00 in payment for proceeding to trial” and that “trial counsel did not 

adequately understand Idaho’s law regarding accomplice liability.” Finally, Bowman’s amended 

petition alleges that if he had been properly advised, “he would not have proceeded to trial and 

would have accepted the [State’s] offer.” Bowman asserts that relief should be granted based on 

these allegations because, even if he entered an unconditional guilty plea, he would have ultimately 

received a lesser sentence. Bowman concludes that, if he had pled guilty rather than going to trial, 

his sentence would be more similar to his codefendant who received a lesser sentence.5

5 Bowman’s codefendant pled guilty before trial without an offer from the State and received 

a unified sentence of thirty years, with a minimum period of confinement of seven years. Bowman 

speculates that he would have received a lesser sentence than his codefendant because the 

codefendant was “more culpable in the crime” than Bowman.
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The State argues that, at the time trial counsel was representing Bowman, there is nothing 

in the record to suggest that his sentence would have been less or comparable to his codefendant 

had he pled guilty. There is no evidence that a plea agreement was proffered after the preliminary 

hearing and before trial or any other evidence to show Bowman’s sentence would have been less. 

On reply, Bowman argues that, had he received competent legal advice, he would have pled guilty 

at any point before the persistent violator enhancement was filed (even without a plea offer from 

the State) and would not have been subject to the additional fifteen-year persistent violator 

enhancement. Even assuming the advice from trial counsel was deficient performance, Bowman’s 

arguments fail on two accounts. Bowman cannot show that he was prejudiced by going to trial 

because his codefendant’s sentence is irrelevant, and Bowman does not cite to the record to show 

an essential aspect of his claim--when the purported deficient performance occurred.

First, this Court will not engage in an exercise of comparative sentencing. State v. 

McFarland, 130 Idaho 358, 365, 941 P.2d 330, 337 (Ct. App. 1997); State v. Pederson, 124 Idaho 

179, 183, 857 P.2d 658, 662 (Ct. App. 1993); State v. Smith, 123 Idaho 290, 294, 847 P.2d 265, 

269 (Ct. App. 1993). It is well settled that not every offense in like category calls for identical 

punishment; there may properly be a variation in sentences between different offenders, depending 

on the circumstances of the crime and the character of the defendant in his individual case. 

Pederson, 124 Idaho at 183, 857 P.2d at 662.

Second, Bowman cites to the United States Supreme Court’s holding that, when a petitioner 

alleges inaccurate legal advice, it must be shown that there is a reasonable probability that, but for 

the deficient performance, the outcome of the plea process would have been different with 

competent advice. See Lafler v. Cooper, 566 U.S. 156, 163 (2012). Bowman spends much of his 

brief explaining the timeline of the case without citing when the alleged deficient performance 

occurred. Bowman does not allege, and the record does not suggest, at what point in the case trial 

counsel gave Bowman the advice regarding the accomplice liability theory. Rather, Bowman only 

alleges the conversation occurred “prior to trial.” However, on reply, Bowman specifies the 

sentence would not have been subject to the enhancement if Bowman had pled guilty before the 

filing of the enhancement nearly five months before trial. Bowman does not assert, and we will 

not speculate, that the advice was given before the filing of the enhancement as such advice was 

just as likely given between the filing of the enhancement and the date of trial.
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Bowman’s assertion that trial counsel advised against accepting any plea offer based on 

trial counsel’s misunderstanding of the law fails to allege an essential element--that a plea offer 

was proffered from the State while trial counsel represented Bowman. Bowman does not allege 

that any plea offer was available to him at any point when trial counsel represented him. Rather, 

the only plea offer mentioned in the record expired before the preliminary hearing and before trial 

counsel filed a notice of appearance. Bowman has failed to show error in the summary dismissal 

of his ineffective assistance of counsel claims. 

IV.

CONCLUSION

Bowman failed to meet his burden to show that his preliminary hearing attorney rendered 

ineffective assistance by providing the State’s plea offer to Bowman before the preliminary hearing 

or by failing to instruct Bowman that the State could later file a persistent violator enhancement. 

Bowman also failed to meet his burden to show trial counsel rendered ineffective assistance by 

providing inaccurate advice regarding proceeding to trial. Thus, the judgment summarily 

dismissing Bowman’s petition for post-conviction relief is affirmed.

Chief Judge GRATTON and Judge LORELLO, CONCUR.