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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38517

SPENCER JAY MASCHEK,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2012 Unpublished Opinion No. 667

Filed: October 11, 2012

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED 

OPINION AND SHALL NOT 

BE CITED AS AUTHORITY

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin 

Falls County. Hon. G. Richard Bevan, District Judge. 

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

in part, vacated in part, and case remanded.

Silvey Law Office, Ltd., Star, for appellant. Greg S. Silvey argued.

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney 

General, Boise, for respondent. Lori A. Fleming argued.

________________________________________________

WALTERS, Judge pro tem

Spencer Jay Maschek appeals from the district court’s order summarily dismissing his 

petition for post-conviction relief. Maschek claims that his counsel was ineffective for failing to 

withdraw his guilty plea after the district court relinquished jurisdiction and failing to adequately 

explain the plea agreement. 

I.

FACTUAL AND PROCEDURAL BACKGROUND

In the underlying criminal case, Maschek entered an Alford plea1 to conspiracy to commit 

arson. Pursuant to the plea agreement, the State recommended Maschek be sentenced to a

unified term of eight years, with four years determinate. The State also recommended that 

Maschek’s sentence be suspended and he be placed on supervised probation for four years, on 

 

1 See North Carolina v. Alford, 400 U.S. 25 (1970).
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the condition that he participate in, and comply with the requirements of, mental health court. In 

the event Maschek was not accepted into mental health court, the State agreed “to limit itself to a 

period of retained jurisdiction, not actual penitentiary time to be served.”

At the hearing for the entry of his guilty plea, the district court asked Maschek if he 

understood the plea agreement and whether he felt his counsel had properly advised him. 

Maschek replied that he understood the plea agreement because he had discussed the agreement 

with counsel. The district court also attempted to explain to Maschek the consequences of 

signing the plea agreement.

Maschek was ultimately denied admittance into mental health court. The district court 

then sentenced him to a unified term of eight years, with four years determinate; however, the 

district court retained jurisdiction. Following the period of retained jurisdiction, the North Idaho 

Correctional Institution issued an addendum to the presentence investigation report, which 

recommended the district court relinquish jurisdiction because Maschek received multiple 

disciplinary sanctions for violating the rules of the retained jurisdiction program. The district 

court relinquished jurisdiction and this Court subsequently affirmed the sentence. State v. 

Maschek, Docket No. 36580 (Ct. App. Mar. 3, 2010) (unpublished).

Maschek then filed a pro se petition for post-conviction relief arguing, inter alia, he 

received ineffective assistance of counsel. Maschek requested appointed counsel, which the 

district court granted, and Joseph Rockstahl was appointed to represent Maschek. Rockstahl 

filed an amended petition for post-conviction relief, which merely restated Maschek’s postconviction claims. After filing an answer, the State filed a motion for summary dismissal with a 

supporting brief and statement of uncontested material facts. The State also requested the district 

court take judicial notice of thirty-one documents from the underlying criminal case. At the 

hearing on the motion for summary dismissal, Rockstahl failed to make any additional argument;

instead, he relied entirely on the initial pro se petition and amended petition for post-conviction 

relief. The district court took judicial notice of the documents and ultimately rejected all of 

Maschek’s claims and summarily dismissed the petition. Maschek timely appealed.2

 

2 During oral argument, Maschek’s appellate counsel conceded an issue that was briefed 

was unfounded. Thus, the issue of whether counsel was ineffective for failing to withdraw 

Maschek’s guilty plea at the time he was denied admittance to mental health court is withdrawn.
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II.

DISCUSSION

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).

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, 
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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); Hayes, 146 Idaho at 355, 195 P.2d at 714; Farnsworth v. Dairymen’s Creamery 

Ass’n, 125 Idaho 866, 868, 876 P.2d 148, 150 (Ct. App. 1994).

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.

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. 
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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).

A. Motion to Withdraw Plea Agreement After District Court Relinquished Jurisdiction

Maschek claims that his counsel was ineffective for failing to withdraw his guilty plea 

after the district court relinquished jurisdiction. Maschek argues that he was entitled to withdraw 

his guilty plea because the district court, during the guilty plea hearing, made inconsistent 

statements as to whether Maschek would have the ability to withdraw his guilty plea if he was 

not placed on probation. The State argues that the judge’s statement was “merely a promise to 

place Maschek on probation if he was accepted into Mental Health Court. . . .”

Where a claim of ineffective assistance is predicated on counsel’s failure to file a motion, 

a conclusion that the motion would not have been successful generally precludes a finding of 

prejudice. See Boman v. State, 129 Idaho 520, 526, 927 P.2d 910, 916 (Ct. App. 1996); Huck v. 

State, 124 Idaho 155, 158, 857 P.2d 634, 637 (Ct. App. 1993). Standards applicable to motions 

to withdraw pleas are set forth in Idaho Criminal Rule 33(c), which states: “A motion to 

withdraw a plea of guilty may be made only before sentence is imposed or imposition of 
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sentence is suspended; but to correct manifest injustice the court after sentence may set aside the 

judgment of conviction and permit the defendant to withdraw defendant’s plea.” Whether to 

grant a motion to withdraw a guilty plea is left to the sound discretion of the district court, and 

such discretion should be liberally applied. State v. Arthur, 145 Idaho 219, 222, 177 P.3d 966, 

969 (2008). Nevertheless, the defendant bears the burden of showing that withdrawal of the plea 

should be allowed. State v. Dopp, 124 Idaho 481, 485, 861 P.2d 51, 55 (1993). The failure to 

present and support a plausible reason will dictate against granting withdrawal, even absent 

prejudice to the prosecution. Id. Idaho Criminal Rule 33(c) provides that a plea may be 

withdrawn after sentencing only to correct manifest injustice. The stricter standard after 

sentencing is justified to ensure that the accused is not encouraged to plead guilty to test the 

weight of potential punishment and withdraw the plea if the sentence were unexpectedly severe. 

State v. Freeman, 110 Idaho 117, 121, 714 P.2d 86, 90 (Ct. App. 1986).

The fact that Maschek entered an Alford plea in which he did not admit factual guilt does 

not diminish his burden to show a just reason for withdrawal of the plea. The Idaho Supreme 

Court has explained:

Federal cases hold generally that a defendant who enters an Alford-type 

plea is not “willy nilly” entitled to withdraw it, as this would render inconsequent 

the guilty plea. . . . The utility of Alford pleas will be severely reduced if 

defendants are permitted to withdraw them before sentencing for no additional 

reason. Such a holding might well lead to a reluctance on the part of prosecutors 

and judges to agree to the acceptance of such pleas. This would impair judicial 

efficiency by eliminating a useful procedure for the resolution of criminal cases; it 

would also work to the detriment of defendants. We therefore hold that a denial 

of factual guilt is not a just reason for the later withdrawal of the plea, in cases 

where there is some basis in the record of factual guilt. . . .

Dopp, 124 Idaho at 486, 861 P.2d at 56. See also Zepeda v. State, 152 Idaho 710, 716, 274 P.3d 

11, 17 (Ct. App. 2012).

Maschek’s claim that he was entitled to withdraw his guilty plea after the district court 

relinquished jurisdiction is based on statements made by the district court at the plea hearing: 

Again, I have told your attorneys, pursuant to a chambers’ conference that 

we had yesterday, that since this matter is presented to me as a Rule 11 plea 

agreement that I will honor the recommendations of the state to place you on 

probation. Do you understand that if for some reason something would come up 

and I would change my mind about that, that I would allow you to withdraw your 

plea of guilty? Do you understand that?
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Even if we assume, arguendo, the district court misstated that Maschek would be entitled to 

withdraw his guilty plea, Maschek’s ineffective assistance of counsel claim is unavailing.

Maschek has failed to argue, at any time during the proceedings below or on appeal, that 

he requested his counsel to file a motion to withdraw his guilty plea or that his counsel had

knowledge of a ground that would entitle Maschek to withdraw his guilty plea. At least one 

other court has held that in order for a petitioner to satisfy Strickland’s deficient performance 

prong he or she must communicate to counsel a desire to withdraw a guilty plea or state other 

facts to support that counsel was aware of grounds to warrant a guilty plea withdrawal.3 The

decision to withdraw a guilty plea must be made by the client. Cf. Florida v. Nixon, 543 U.S. 

175, 187 (2004) (noting that certain decisions regarding the exercise or waiver of basic trial 

rights are of such moment that they cannot be made for the defendant and that a defendant has 

the ultimate authority to decide whether to plead guilty). It follows that he has not met the 

deficient performance prong for his claim of ineffective assistance of counsel. We consequently 

find no error in the district court’s summary dismissal of this ineffective assistance of counsel 

claim predicated upon failure to withdraw the guilty plea.

B. Failure to Explain Plea Agreement

Maschek also claims that his counsel inadequately explained the plea agreement and thus 

rendered ineffective assistance. As noted above, 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, 466 U.S. at 687-88; Hassett, 127 

Idaho at 316, 900 P.2d at 22. To establish a deficiency, the petitioner has the burden of showing 

that the attorney’s representation fell below an objective standard of reasonableness. Aragon, 

114 Idaho at 760, 760 P.2d at 1176; Suits v. State, 143 Idaho 160, 162, 139 P.3d 762, 764 (Ct. 

App. 2006). To establish prejudice, the applicant must show a reasonable probability that, but 

for the attorney’s deficient performance, the outcome of the proceeding would have been 

 

3 We find the Pennsylvania Superior Court’s reasoning on this point to be persuasive: “In 

the absence of counsel’s independent awareness of grounds to file a motion to withdraw plea or 

the entreaty of Appellant, counsel cannot be deemed ineffective for a failing to file such a plea.” 

Pennsylvania v. Gonzalez, 840 A.2d 326, 331 (Pa. Super. Ct. 2004). Furthermore, several 

unpublished decisions by the Idaho Court of Appeals, without citation of authority, have 

concluded that for a petitioner to properly allege an ineffective assistance of counsel claim the 

petitioner must have communicated to counsel the desire to withdraw his or her guilty plea. 
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different. Aragon, 114 Idaho at 761, 760 P.2d at 1177. Where, as here, the applicant was 

convicted upon a guilty plea to satisfy the prejudice element, the applicant seeking relief from 

the conviction generally must show a reasonable probability that, but for counsel’s errors, he or 

she would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart,

474 U.S. 52, 59 (1985); Plant, 143 Idaho at 762, 152 P.3d at 633. This requires a showing that a 

decision to not accept a plea agreement and plead guilty would have been rational under the 

circumstances. Padilla v. Kentucky, ___ U.S. ___, 130 S. Ct. 1473, 1485 (2010). Bare 

assertions and speculation, unsupported by specific facts, do not make out a prima facie case for 

ineffective assistance of counsel. Roman, 125 Idaho at 649, 873 P.2d at 903. 

The district court in addressing this claim found:

Again, there are no facts to support these allegations; and in fact, it is 

specifically disproved by the record. The offer/plea agreement sets forth that 

Maschek had read the offer, that he understood it, and that he accepted the offer 

on its stated terms.

As I’ve already noted, a term of the plea offer was that if Maschek was not 

accepted into mental health court, the state would limit itself to a period of 

retained jurisdiction. 

Also, the change of plea advisory form sets forth that Maschek had 

discussed all the ramifications of his case with his lawyer and had discussed fully 

with his lawyer the nature of the charge and Maschek’s constitutional rights and 

defenses to the charge, including the possible consequences. As such, this 

allegation is disproved by the record and is dismissed.

Maschek argues that his responses during the hearing for the entry of guilty plea 

demonstrate that he did not understand the plea agreement. According to Maschek, he was first 

informed that he would not be able to withdraw his guilty plea:

COURT: And if you’re not allowed to get into mental health court, your plea 

in this case will still stand, in other words, you can’t withdraw it. 

Do you understand that?

MASCHEK: Yes, sir.

(Emphasis added.) Then a few moments later Maschek was informed that he would be able to 

withdraw his guilty plea:

COURT: Again, I have told your attorneys, pursuant to a chambers’ 

conference that we had yesterday, that since this matter is 

presented to me as a Rule 11 plea agreement that I will honor the 

recommendations of the state to place you on probation. Do you 

understand that if for some reason something would come up and I 
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would change my mind about that, that I would allow you to 

withdraw your plea of guilty? Do you understand that?

MASCHEK: Yes, sir.

(Emphasis added.) Maschek asserts that this statement informed him that he could withdraw his 

guilty plea if the court did not place him on probation. Maschek argues that the statements by 

the district court cannot be reconciled and demonstrate that he did not understand the 

consequences of signing his plea agreement. Moreover, in Maschek’s initial petition for postconviction relief, he argued “[t]he petitioner was prejudiced by defense counsel’s 

misrepresentations and would not have waived his right to trial by jury, confrontation of witness, 

opportunity for jury pardon, but for the misrepresentation of defense counsel.” 

The State counters that Maschek made several statements during the entry of the guilty 

plea that directly contradict his argument. When asked if he was satisfied with his counsel’s 

representation, Maschek replied that he was. Maschek further elaborated that he understood the 

charges and the evidence that the State had against him. Furthermore, Maschek noted on the 

guilty plea advisory form that his counsel adequately informed him of the consequences of the 

plea agreement. 

We are not persuaded by the State’s argument. Although signing a guilty plea form is an 

important element in determining whether a defendant understood a plea agreement, it cannot be 

the sole determining factor. If a defendant is genuinely confused as to what the written 

agreement actually means, and it was not properly explained by counsel, then a defendant likely 

will not realize his or her misunderstanding until after the guilty plea form has been signed. 

Here, Maschek claims he was not adequately informed of the consequences of signing the plea 

agreement, alleging his counsel’s deficient performance. The district court made ambiguous 

statements to Maschek during sentencing, which could further bolster his claim. Likewise, the 

plea agreement contained language that would be ambiguous to a non-lawyer: “If the defendant 

is not accepted into [mental health court], the state will limit itself to a period of retained 

jurisdiction, not actual penitentiary time to be served.” Maschek contends he understood the plea 

agreement to mean that he would either go into mental health court or would get probation, but 

would not be sentenced to the penitentiary. As to prejudice, Maschek’s initial petition for postconviction relief stated that he would not have accepted the plea agreement if he had been 

informed that probation was not guaranteed. To compound the need for an evidentiary hearing,
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Maschek’s post-conviction counsel did not zealously advocate for the petitioner and chose to sit 

idly as the State moved for summary dismissal. Post-conviction counsel did not even draw the 

court’s attention to the above-quoted statement by the court in the transcript of the plea hearing. 

We agree that Maschek has asserted a genuine issue as to whether counsel was ineffective for 

failing to adequately advise him of the consequences of pleading guilty, and we conclude 

dismissal on this issue was inappropriate.

III.

CONCLUSION

Because Maschek asserted a genuine issue of material fact as to whether counsel was 

ineffective for failing to adequately advise him on the consequences of pleading guilty, the 

district court erred in summarily dismissing this claim. Maschek did not, however, make a prima 

facie showing his counsel was deficient for not sua sponte withdrawing the guilty plea or that he 

was prejudiced by his counsel’s inaction. Accordingly, the district court’s judgment summarily 

dismissing Maschek’s petition for post-conviction relief is affirmed in part, vacated in part, and 

the case is remanded for further proceedings consistent with this opinion.

Judge LANSING and Judge MELANSON CONCUR.