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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 41499

JAMES DEE OLSEN,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2014 Opinion No. 63

Filed: August 13, 2014

Stephen W. Kenyon, Clerk

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

Elmore County. Hon. Lynn G. Norton, District Judge. 

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

James Dee Olsen, Boise, pro se appellant. 

Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney 

General, Boise, for respondent. 

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GUTIERREZ, Chief Judge

James Dee Olsen appeals pro se from the judgment of the district court summarily 

dismissing his petition for post-conviction relief. On appeal, Olsen argues that the application of 

both Idaho Code §§ 18-8005(6) and 19-2514 violates the Double Jeopardy Clause of the Idaho 

Constitution and the United States Constitution. For the reasons that follow, we affirm.

I.

FACTS AND PROCEDURE

Olsen was convicted of felony driving under the influence in 2002 and 2007. In 2012, 

the State charged Olsen with, among other charges, felony driving under the influence. The 

State also alleged that Olsen was a persistent violator. Under a plea agreement, Olsen pled guilty 

to felony driving under the influence and acknowledged that he was a persistent violator, and the 

State dismissed the remaining charges. The district court sentenced Olsen to a unified term of 

fifteen years, with five years determinate. Subsequently, Olsen filed a pro se petition for 

post-conviction relief alleging that the application of both Idaho Code §§ 18-8005(6) and 
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19-2514 violated his double jeopardy rights. The district court provided a notice of intent to 

dismiss, Olsen responded, and the district court summarily dismissed Olsen’s petition for 

post-conviction relief. Olsen appeals.

II.

STANDARD OF REVIEW

A petition for post-conviction relief initiates a civil, rather than criminal, proceeding, 

governed by the Idaho Rules of Civil Procedure. I.C. § 19-4907; 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. 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 Idaho Rule of Civil 

Procedure 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 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 

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 
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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); 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.
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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).

III.

ANALYSIS

Olsen argues that the district court erred by summarily dismissing his petition for 

post-conviction relief because application of both Idaho Code §§ 18-8005(6) and 19-2514 

violates the Double Jeopardy Clause of the Idaho Constitution and the United States 

Constitution. We initially note that Olsen does not claim that the Double Jeopardy Clause of the 

Idaho Constitution provides any broader protection than that of the United States Constitution. 

Therefore, we will analyze this claim under the Double Jeopardy provisions of the United States 

Constitution. See State v. Talavera, 127 Idaho 700, 703, 905 P.2d 633, 636 (1995). Whether a 

defendant’s prosecution complies with the constitutional protection against being placed in 

jeopardy twice is a question of law over which we exercise free review. State v. Santana, 135 

Idaho 58, 63, 14 P.3d 378, 383 (Ct. App. 2000). The Double Jeopardy Clause of the United 

States Constitution provides that no person shall “be subject for the same offense to be twice put 

in jeopardy of life or limb.” The Clause affords a defendant three basic protections. It protects 

against a second prosecution for the same offense after acquittal, a second prosecution for the 

same offense after conviction, and multiple criminal punishments for the same offense. Schiro v. 

Farley, 510 U.S. 222, 229 (1994); State v. McKeeth, 136 Idaho 619, 622, 38 P.3d 1275, 1278 

(Ct. App. 2001). 

Olsen has phrased his issue on appeal as whether it is permissible under the Double 

Jeopardy Clause to apply two sentencing enhancements to a charge. As phrased, this issue has 

already been addressed by the Idaho Supreme Court in State v. Kerrigan, 143 Idaho 185, 141 

P.3d 1054 (2006). In that case, Kerrigan argued that the district court erred by imposing a 

sentencing enhancement under Idaho Code § 19-2520 in conjunction with a sentencing 
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enhancement under Idaho Code § 18-915. The Idaho Supreme Court held that the district court 

had the authority to consider each sentencing enhancement separately and noted that the statutes 

did not contain language prohibiting both enhancements from being attached to a single 

substantive crime. Kerrigan, 143 Idaho at 188, 141 P.3d at 1057. Moreover, the Idaho Supreme 

Court determined that the enhancements were not duplicative and that the application of both 

sentencing enhancements served the legislature’s intent to deter the conduct proscribed by each 

statute. Id. 

We write further, however, to address some confusion on Olsen’s part, because even 

though Idaho Code §§ 18-8005(6) and 19-2514 applied in this case, only one of them is a 

sentencing enhancement. This Court has previously described section 18-8005(6) as a “charging 

enhancement.” E.g., State v. Moore, 148 Idaho 887, 890 n.2, 231 P.3d 532, 535 n.2 (Ct. App. 

2010). This is because the statute defines “an element that elevates a charge from a 

misdemeanor offense to a felony offense.” Id. A sentencing enhancement, on the other hand, 

“authorizes or requires increased penalties for a misdemeanor or a felony in certain 

circumstances but does not, in the case of a misdemeanor, elevate the crime to a felony.” Id. 

The persistent violator enhancement in section 19-2514 does not create a new crime, but the 

section permits the court to impose a greater sentence for the conviction at issue (but not the 

prior convictions) and is thus a sentencing enhancement. Lopez v. State, 108 Idaho 394, 395, 

700 P.2d 16, 17 (1985). Sentencing enhancements thus provide for a single, more severe 

penalty, rather than multiple penalties. State v. Galaviz, 104 Idaho 328, 330, 658 P.2d 999, 1001 

(Ct. App. 1983).

Like the Idaho Supreme Court in Kerrigan, we also note that the two enhancements are 

not duplicative and that application of both enhancements serves the legislature’s purpose with 

each enhancement. Section 18-8005(6) serves the purpose of removing repeat DUI offenders 

from the roadways and deterring other potential multiple DUI offenders. State v. Leslie, 146 

Idaho 390, 392, 195 P.3d 749, 751 (Ct. App. 2008). Section 19-2514 seeks to deter felony 

recidivism by assigning a more severe punishment than a first-time felony offender would be 

subject to. State v. Helms, 143 Idaho 79, 81, 137 P.3d 466, 468 (Ct. App. 2006). Thus, 

application of each enhancement serves the legislative purpose of deterring the distinct conduct 

proscribed by each of them. Additionally, neither section contains language that would limit the 

application of both the charging enhancement and the sentencing enhancement.
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In short, Olsen’s crime (the 2012 charge of felony driving under the influence) was 

subject to one punishment (the punishment defined by section 18-8005(6)(a) as enhanced by 

section 19-2514). Therefore, Olsen was not subject to multiple punishments, and the Double 

Jeopardy Clause has not been violated. Accordingly, the district court did not err by summarily 

dismissing Olsen’s petition for post-conviction relief, and the judgment is affirmed. 

Judge GRATTON and Judge MELANSON CONCUR.