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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38752

CARL D. PATTERSON,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2012 Unpublished Opinion No. 624

Filed: September 6, 2012

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED 

OPINION AND SHALL NOT 

BE CITED AS AUTHORITY

Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bear 

Lake County. Hon. Mitchell W. Brown, District Judge. 

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

Carl D. Patterson, Boise, pro se appellant. 

Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

GRATTON, Chief Judge

Carl D. Patterson appeals from the district court’s summary dismissal of his petition for 

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

I.

FACTS AND PROCEDURE

Patterson pled guilty to two counts of lewd conduct with a child and was sentenced to a 

unified term of twenty years with five years determinate on each count to be served concurrently. 

Patterson appealed his sentence, asserting that the district court abused its discretion by imposing 

an excessive sentence. This Court affirmed the sentence in State v. Patterson, Docket No. 35661 

(Ct. App. Jan. 22, 2010) (unpublished).

Patterson then filed a pro se petition for post-conviction relief, alleging his counsel at the 

change of plea hearing provided ineffective assistance by advising him that a guilty plea would 

result in either retained jurisdiction or probation. The district court filed a “Notice of the Court’s 

Intent to Dismiss Petition for Post-Conviction Relief.” Thereafter, Patterson, through counsel, 
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filed an objection to the notice of intent to dismiss. The district court then filed a “Second

Notice of the Court’s Intent to Dismiss Petition for Post Conviction Relief.” After Patterson 

objected to the second notice of the intent to dismiss, the district court summarily dismissed the 

petition, finding that Patterson waived his right to file for post-conviction relief in his plea 

agreement. The district court further found even if Patterson did not waive his right to pursue 

post-conviction relief, he nonetheless failed to present a genuine issue of material fact that his 

counsel’s performance was deficient or prejudicial. Patterson timely appealed. 

II.

ANALYSIS

Patterson contends the district court erred when it summarily dismissed his claim of 

ineffective assistance of counsel. He further contends the waiver of his right to file a postconviction petition, asserted in his plea agreement, is unenforceable. The State asserts that 

Patterson failed to establish a genuine issue of material fact regarding his ineffective assistance 

of counsel claim. The State does not specifically respond to Patterson’s claim that the waiver of 

post-conviction relief rights was invalid. 

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); Farnsworth v. Dairymen’s Creamery Ass’n, 125 Idaho 866, 868, 876 P.2d 148, 150 

(1994); Hayes, 146 Idaho at 355, 195 P.2d at 714.

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. Hughes v. State, 148 Idaho 448, 451, 224 P.3d 515, 518 (Ct. 

App. 2009). To prevail on an ineffective assistance of counsel claim, the defendant must show 

that the attorney’s performance was deficient and that the defendant was prejudiced by the 

deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hughes, 148 Idaho at 451, 

224 P.3d at 518. To establish a deficiency, the applicant 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); Hughes, 148 Idaho at 451, 224 P.3d at 518. To 

establish prejudice, the applicant 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; Hughes, 148 Idaho at 451, 224 P.3d at 518. 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. Howard v. State, 126 Idaho 231, 233, 880 

P.2d 261, 263 (Ct. App. 1994). 
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Patterson contends his counsel at the change of plea hearing provided ineffective 

assistance by advising him that a guilty plea would result in either retained jurisdiction or 

probation. The district court noted, however, from several cases, although in varying contexts, a 

claim that counsel was ineffective in giving assurances of a particular sentence was held to not 

constitute grounds for post-conviction relief. Buss v. State, 147 Idaho 514, 517, 211 P.3d 123, 

126 (Ct. App. 2009) (good faith assurance of leniency or a mere prediction of the anticipated 

sentence, even though sentence imposed is greater, is not ground for post-conviction relief); 

Pierce v. State, 124 Idaho 406, 860 P.2d 22 (1993) (affirming district court’s conclusion that an 

assurance of leniency does not constitute grounds for post-conviction relief); Walker v. State, 92 

Idaho 517, 446 P.2d 886 (1968) (misrepresentation by counsel as to the sentence Walker would 

receive did not constitute grounds for post-conviction relief). 

As the district court further found, contrary to Patterson’s allegations, the change of plea 

hearing indicates that he knew his counsel’s alleged sentence assurances could not be relied 

upon. Patterson acknowledged that his potential sentence could be up to life imprisonment. He 

further acknowledged that no promises, including any special sentence, favorable treatment or 

leniency, were given to him concerning his sentence and that the judge was the only person that 

could determine the sentence. Patterson understood that his sentence might be different than 

expected, and if so, he had no right to withdraw his plea based on that fact. Accordingly, 

counsel’s alleged representation of Patterson’s sentence does not constitute grounds for postconviction relief. Patterson has not established that a material issue of fact exists as to whether 

counsel’s performance was deficient. 

Finally, Patterson failed to demonstrate that any deficient performance prejudiced him. 

When the alleged deficiency involves counsel’s advice in relation to a guilty plea, “to satisfy the 

‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but 

for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” 

Hill v. Lockhart, 474 U.S. 52, 59 (1985) (footnote omitted). Patterson has not alleged that he 

would not have pled guilty and would have insisted on going to trial but for the alleged deficient 

performance of counsel. “Moreover, to obtain relief on this type of claim, a petitioner must 

convince the court that a decision to reject the plea bargain would have been rational under the 

circumstances.” Padilla v. Kentucky, ___ U.S. ___, ___, 130 S. Ct. 1473, 1487 (2010) (citing 

Roe v. Flores-Ortega, 528 U.S. 470 (2000)). He has failed to allege or demonstrate that a 
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decision to reject the plea agreement would have been rational. Prior to the plea agreement, 

Patterson had been facing nineteen felony charges and a sentence of up to fixed life. For the 

aforementioned reasons, Patterson has failed to raise a genuine issue of material fact regarding 

ineffective assistance of counsel and his petition was properly summarily dismissed.

III.

CONCLUSION

Patterson has failed to demonstrate that the district court erred in summarily dismissing 

his claim that his counsel was ineffective. Therefore, the district court’s order summarily 

dismissing Patterson’s post-conviction petition is affirmed.

Judge LANSING and Judge MELANSON CONCUR.