1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38612

MAXIMO CHACON , Petitioner-Appellant ,

v.
STATE OF IDAHO , Respondent

. ) ) ) ) ) ) ) ) ) ) 2012 Unpublished Opinion No. 648

Filed: September 28, 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THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY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, Minidoka County. Hon. Michael R . Crabtree , District Judge.
Order denying petition for post

- conviction relief, affirmed

. Stephen D. Thompson, Ketchum, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenn eth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

________________________________________________ GUTIERREZ, Judge Maximo Chacon appeals from the district court’s order denying his petition for post

- conviction relief after an evidentiary hearing. For the reasons set forth below, w e affirm.
I. FACTS AND PROCEDURE Following trial, a jury found Chacon guilty of conspiracy to traffic in methamphetamine
and failure to affix a drug tax stamp. After conviction, the district court imposed a unified thirty

- year sentence , with fifteen years determinate , for the conspiracy offense and a concurrent , determinate sentence of five years for the drug tax offense. Chacon directly appealed , and this
Court affirmed Chacon’s judgment of conviction

. State v. Chacon , 145 Idaho 814, 186 P.3d 670 (Ct. App. 2008). In June 2009, Chacon filed a petition for post

- conviction relief , along with a supporting affidavit, alleging ineffective assistance by both his defense and appellate counsel

. He asserted defense counsel provided ineffective assistance in five ways: by failing to request and review all2 discovery materials before trial; by failing to provide copies of discovery to Chacon prior to trial; by failing to communicate with Chacon duri ng trial preparation; by failing to follow Chacon’s instructions in attempting to negotiate a plea; and by failing to investigate and introduce evidence favorable to Chacon, including evidence regarding a confidential informant. Chacon asserted his appell ate counsel also provided ineffective assistance by failing to inform Chacon of the ramifications of proceeding pro se and by failing to inform Chacon that by raising ineffective
assistance of counsel claim s on direct appeal, grounds not raised on direct a ppeal could nonetheless be encompassed by such claims, acting as a bar to further bringing other potential
ineffective assistance of counsel claim s on different grounds in future proceedings

. The State move d for summary disposition on the basis that Cha con alleged ineffective assistance of counsel on direct appeal and was accordingly barred from raising the issue in a post

- conviction petition

. After a hearing on the State’s motion, t he district court denied summary disposition

. In its denial of the mot ion, the district court cited to this Court ’s precedent
that post

- convi ction proceedings are the better procedural vehicle for addressing ineffective
assistance of counsel claims arising from off

- the

- record circumstances , and the district court
reasoned th at some of the allegations in Chacon’s post

- conviction petition were not expressly alleged on direct appeal, nor did they appear to be part of the record in the direct appeal or underlying criminal case. The district court concluded that Chacon had not ha d a meaningful opportunity to raise th ose specific claim s of ineffective assistance of counsel prior to post

- conviction proceedings and , therefore, the claims were not barred

. 1 In December 2010, t he district court conducted an evidentiary hearing regarding the merits of Chacon’s post

- conviction claims of ineffective assistance of counsel

. Chacon, as well as both defense and appellate counsel, testified. After the hearing, the distr ict court ordered a transcript of the underlying criminal trial a nd pretrial hearing s , took judicial notice of those

1 As to the additional claims of ineffective assistance of counsel Chacon made, the district court did conclude they were barred. Specifically, the district court found evidence within the record from the underlying criminal case regardi ng Chacon’s claims that (1) defense counsel failed to challenge the amendment of the criminal pleading, (2) defense counsel inadequately
cross

- examined the confidential informant, and (3) defense counsel failed to request certain jury instructions. Conseq uently, the district court concluded such claims should have been or were in fact rai sed on direct appeal and denied any consideration of claims of ineffective assistance of counsel on such grounds in the post

- conviction proceedings, citing to Idaho Code § 19

- 4901(b).3 records, and took the matter under advisement. Thereafter, t he district court issued findings of
fact and conclusi ons of law denying the petition and entered a corresponding judgment in February 2011. 2 Chacon timely appeals , asserting the supporting affidavit to his petition and the testimony at the evidentiary hearing demonstrate a reasonable probability that the outcome of
trial would have been different absent counsel’s mistakes

. II. STANDARD OF REV IEW In order to prevail in a post

- conviction proceeding, the petitioner must prove the allegations by a preponderance of the evidence. Idaho Code § 19

- 4907; Stuart v. State , 118 Idaho 865, 801 P.2d 1216 (1990) ; Baxter v. State , 149 Idaho 859, 861, 243 P.3 d 675, 677 (Ct. App. 2010) . When reviewing a decision denying post

- conviction relief after an evidentiary hearing, an appellate court will not disturb the lower court’s factual findings unless they are clearly erroneous. Idaho Rule of Civil Procedure 52( a); Dunlap v. State , 141 Idaho 50, 56, 106 P.3d 376, 382 (2004); Russell v. State , 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of the witnesses, the weight to be given to their testimony, and the inferences to
be drawn from the ev idence are all matters solely within the province of the district court. Dunlap , 141 Idaho at 56, 106 P.3d at 382; Larkin v. State , 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We exercise free review of the district court’s application of the re levant law to
the facts. Baxter , 149 Idaho at 86 2 , 243 P.3d at 678

. All of Chacon’s claims relate to ineffective assistance of counsel. 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 tha t the petitioner was prejudiced by the deficiency. Strickland v. Washington , 466 U.S. 668, 687

- 88 (1984); Barcella , 148 Idaho at 477, 224 P.3d at 544. To establish a deficiency, the petitioner has the burden of showing that the attorney’s representation fell below

2 Though the document is entitled “Order,” we look to the substance, not the form of the document, Estate of Holland v. Metro. Prop. and Cas. Ins. Co. , 153 Idaho 94, 99, 279 P.3d 80, 85 (2012), and find the document is indeed a final judgm ent and complies with Idaho Rule of Civil Procedure 54(a) and Idaho Appellate Rule 11(a) because it disposes of the issues in the case and contains no findings of fact, legal reasoning, or conclusions of law. I.R.C.P. 54(a); Capstar Radio Operating Co. v. Lawrence , 149 Idaho 623, 625, 238 P.3d 223, 225 (2010).4 an objective standard of reasonableness. Gonzales v. State , 151 Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011). To establish prejudice, the petitioner must show a reasonable probability that, but for the attorney’s deficient performance, the outcome of the proceeding would have been
different. Id. 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. Id.
III. DISCUSSION A. Ineffective Assistance of Defense Counsel
1. Reviewing or providing discovery In support of his claims regarding discovery , Chacon testified at th e evidentiary hearing
that his defense counsel did not request or review discovery and that Chacon asked for , but did
not receive , copies of video tapes in evidence

. Defense counsel also testified and disputed Chacon’s assertion that he did not request or review discovery. To the contrary, defense counsel
testified that he obtained discovery from Chacon’s prior counsel and made further requests to the prosecutor for other discovery. He also stated that he provided copies of all discovery materials
to Chac on , except copies of the video tapes . However, defense counsel testified that the tapes

were m ade available to Chacon for review and he had informed Chacon of their availability

. The failure to make discovery requests may constitute ineffective assistance of counsel only where the claimant also alleges what evidence was discoverable that counsel failed to

uncover. State v. Porter , 130 Idaho 772, 792, 948 P.2d 127, 147 (1997). On a claim of
ineffective assistance for failure to provide discovery , a defendant must allege and show how being provided discovery or having counsel do other specific tasks would have led to a different
outcome at trial. See Thomas v. State , 145 Idaho 765, 770

- 71, 185 P.3d 921, 925

- 26 (Ct. App. 2008).
The district cour t found the following facts: d efense counsel requested copies of documents from Chacon’s prior attorney and contacted the prosecutor to secure other discovery materials; defense counsel reviewed all of those discovery materials and met with Chacon to
revi ew the same with him; and defense counsel provided Chacon with copies of all discovery except the video record ings because it was counsel ’s policy and practice not to release video5 recordings out of protection for the client, but informed Chacon that the r ecordings were available for viewing in counsel ’s office. The district court concluded, “ There was no evidence presented at trial identifying a single piece of discovery information that [defense counsel] failed to request, receive , or make available to M r. Chacon.”
The findings of fact are supported by the record. Though Chacon , on this appeal, points

ou t that defense counsel admitted to not providing tapes in evidence to Chacon, Chacon does not dispute the factual fi nding that the tapes were in his cou nsel’s possession and made available to
Chacon. Additionally , Chacon failed to show how providing copies of discovery, if there was a
further duty to so, would have affected the outcome of the trial and does not allege what evidence, if any, was discovera ble , but that counsel failed to uncover

. The district court’s findings of fact were not clearly erroneous , and the district court did not err in determining that Chacon failed to support t his claim.
2. Pretrial communication Chacon testified at the evidentiary hearing that he could never reach his defense counsel, met only once with defense counsel prior to trial, and attempted to fire him before trial because Chacon felt defense counsel was unprepared. Chacon also testified that had he and defense
counsel had more time to consult in preparation for trial, Chacon could have addressed a decisive
confidential informant issue. In his testimony, defense counsel admitted he was not as prepared
for trial as he would have like d to h ave been and did meet with Chacon only once prior to trial.
Nevertheless , defense counsel also testified that he spoke with Chacon on the phone a few times, made himself available to meet with Chacon on evenings and weekends at his office , directed
Chacon to contact his office to make appointments , and spoke with Chacon’s wife on several
occasions . Defense counsel stated his lack of preparation was due both to the difficultly in trying
to communicate and connect with his client , and to an amendment to the pleadings made just prior to trial that changed his defense strategy, compounded by the fact he was not granted a
continuance

. W e have recognized claims of ineffective assistance for counsel’s failure to
communicate

. Thomas , 145 Idaho at 768, 185 P.3d at 924

. In regards to such a claim, i t is insufficient to simply say there was a lack of communication without also alleging how further consultation might have affected the results at trial. Parrott v. State , 117 Idaho 272, 275, 787 P.2d 258, 261 (1990)

. T he issue was first raised in the criminal trial and the trial judge6 determined any failure to communicate or difficulty in preparing for trial was the fault of Chacon, not defense counsel. The district court , in post

- conviction proceedings, agreed and , in finding Chacon did not meet his burden, s tated the evidence was not persuasive in establishing any deficiency by defense counsel. Chacon did not include a copy of the trial transcript from the criminal case in the record on appeal . We will presume t he missing portions of such record support the actions of the district court in this case , s ee Retamoza v. State , 12 5 Idaho 792 , 79 5 , 874 P.2d 603 , 606 (Ct. App. 199 4 ) , and conclude there is no error. To the extent Chacon alleges
that further consultation with defense counsel would have affected the confidential informant issue, Chacon also cannot show any deficiency , as is discussed below.
3. Plea negotiations
Chacon asserts defense counsel provided ineffective assistance by failing to follow
Chacon’s instruction s regarding plea negotiations. He alleges that had counsel relayed information to the prosecutor that Chacon had information about drug producers and suppliers , a reasonable probability existed that Chacon would have received a more favorable p lea offer, resolving the matter before going to trial. As to the plea the State offered Chacon , Chacon
testified that he refused the offer based on his counsel’s belief that Chacon had a good case for
trial

. Defense counsel also testified about the plea offer and indicated that the plea offer included

a single charge and a term that the State would recommend a sentence to be served concurrently
with Chacon’s sentence from a separate case . He went on to explain that Chacon had an alibi
defense , was perhaps overly confident about his chances at trial, and did not take the plea despite defense counsel’s concerns about the admission of an inculpatory letter and his opinion that the plea was not a bad offer. Defense counsel further testified that he did not recall having a conversation with Chacon about information Chacon had relating to drug activity, but if Chacon
had told counsel that he had such information, defense counsel would have relayed that to the prosecutor in negotiating a plea

. A defenda nt is entitled to effective assistance of counsel in plea negotiations. See Missouri v. Frye , ___ U.S. ___, ___, 132 S. Ct. 1399, 1405

- 08 (2012). When defense counsel fails to communicate a formal plea offer to the defendant that may be favorable to the defendant,
counsel’s assistance is deficient. Id. at ___, 132 S. Ct. at 1408. To establish prejudice, the defendant must show there was a reasonable probability as to three aspects of the plea: (1) the defendant would have accepted the earlier plea offe r had he been afforded effective assistance of7 counsel; (2) neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented; and (3) the end result of the criminal process would have been more favorable by reas on of a plea to a lesser charge or a sentence of less prison time. Id. at ___, 132
S. Ct. 1409

- 10. We recognize Chacon’s argument do es not present precisely the same issue as in Frye , which only considered a formal plea offer that was never communicated to the defendant. Rather, here, Chacon additionally asserts that defense counsel’s deficient pre tr ial performance relating to non communication with Chacon resulted in little to no bargaining power in plea negotiations. Still, Frye provides persuasive gui dance. Therefore, w e apply its analysis to
claims w here a defendant asserts that defense counsel’s deficient pre trial performanc e relating to discovery and non communication resulted in little to no bargaining power in plea negotiations. Though Chacon al leges he would have taken a favorable plea offer, the record contradicts him. From testimony at the evidentiary hearing, it is evident that Chacon refused a plea offer with a more favorable recommendation for sentencing. Furthermore, the district court f ound
defense counsel ’s testimony credible

. Defense c ounsel stated that, in negotiating a plea, he would have spoken with the prosecutor about any information Chacon had about other participants in a drug scheme , which could be helpful to the State, had Chacon made such a request. We will not disrupt such credibility determinations and agree with the district court that
C hacon failed to show any deficiency by defense counsel

. 4

. Investigation and introduction of evidence Chacon asserts defense counsel was deficient for failing to investigate and introduce further evidence, specifically regarding the confidential informant and a letter in evidence . The
confidential informant was a primary witness against Chacon , and Chacon alleges defense
counsel should have investigated and introduced evidence regarding the informant’s credibility and her drug addiction, or pressed the State for evidence that was corroborative of the informant’s testimony. Chacon also faults defense counsel for not requesting a jury in struction in regards to the confidential informant. Furthermore, Chacon asserted counsel was deficient for failing to obtain a handwriting expert as a witness to help Chacon demonstrate that a critical letter, used against him at trial, was not written by Chacon

. Defense counsel testified at the evidentiary hearing that he did not ask for an instruction regarding the confidential informant because it was his practice to argue credibility on the general instruction given by the court ; he did not bring in e vidence of the informant’s drug addiction or attack her credibility , as he though t8 her addiction was obvious and she admitted to it in front of the jury ; and he did not press the prosecution for evidence that was corroborative of the informant’s testimony because he thought it unnecessary. As to the letter, defense counsel testified it was probably the most incriminating piece of evidence used at trial because it showed Chacon had significant knowledge of the drug conspiracy and its participants. Still, d efense counsel testified that Chacon did not say the letter was not his writing ; rather , Chacon was confident that the State would not be able to prove that
Chacon wrote the letter

. We consider only the claim as pled and decided before the district court, which limits our consideration to the investigation and introduction of evidence regarding the confidential
informant and request for a handwriting expert

. 3 Defense counsel is generally bound to conduct a prompt and thorough pretrial investigation of his or her case. Davis v. State , 116 Idaho 401, 407, 775 P.2d 1243, 1249 (Ct. App. 1998). Strategic choices made after only partial investigation are reasonable only to the extent that reasonable professional judgment supports the

3 Chacon’s claim s of ineffective assistance based on counsel’s failure to request jury instruction s , inadequate cross

- examination of the confidential informant , and need for corroborating evidence are not properly before this C ourt. As pled, Chacon only asserted that defense counsel provided ineffective assistance because counsel “failed to adequately investigate the snitch and obtain critical information regarding the snitch’s background.” Addit ionally, the district court did not decide the issues regarding jury instructions or cross

- examination relating to the confidential informa nt , finding they were barred

-- a ruling Chacon does not dispute in this appeal. The district court recognized that such claims need not be raised on direct appeal, though they can be, and that this Court “has routinely reserved judgment on allegations of ine ffective assistance of counsel in direct appeals because criminal case records are typically inadequate to allow full consideration of such allegations.” We have done so because ineffective assistance of counsel claims often involve conduct that is off th e record, rarely making for an adequate review on direct appeal, and post

- conviction proceedings allow for the development of an evidentiary basis. See
, e.g. , State v. Hayes , 138 Idaho 761, 766, 69 P.3d 181 , 186 (Ct. App. 2003). Nonetheless, the distri ct court found adequate evidence in the transcripts of the criminal case and direct appeal of defense counsel’s on

- the

- record conduct directly regarding the requests for jury instructions and the cross

- examination of the confidential informant. We do not have those transcripts before us and presume they support the actions of the district court in this case. See Retamoza v. State , 125 Idaho 792, 795, 874 P.2d 603, 606 (Ct. App. 1994). Finally, this Court resolved on direct appeal the question of whether the State was required to present evidence corroborative of the informant’s testimony, concluding that the informant’s testimony was not subject to the rule requiring such evidence. State v. Chacon , 145 Idaho 814, 818

- 819, 186 P.3d 670, 674

- 75 (Ct. App. 2 008). Therefore, the claim relating to the need for corroborating evidence is barred by the operation of res judicata. McKinney v. State , 133 Idaho 695, 707, 992 P.2d 144, 156 (1999).9 limitations on inves tigation. Strickland , 466 U.S. at 690

- 91. The decision of what evidence
should be introduced at trial is tactical. State v. Yakovac , 145 Idaho 437, 447, 180 P.3d 476, 486 (2008). When faced with a tactical choice, there is a strong presumption that cou nsel’s decision fell within the wide range of reasonable choices. Id

. Where the record supports finding that counsel conducted a normal and reasonable investigation, an allegation that counsel could have
done more does not mean that counsel did not do en ough. State v. Payne , 146 Idaho 548, 578, 199 P.3d 123, 153 (2008). The district court found that Chacon did not present evidence demonstrating a deficient investigation of the confidential informant or show any evidence that was previously available, but undiscovered by defense counsel regarding the informant. As to the desire for a handwriting expert, Chacon presented nothing to support the proposition that a handwriting expert would have been able to challenge the foundation laid by the State in ord er to admit the incriminating
letter. Significantly, t his Court found the letter was properly authenticated and admitted at trial as a nonhearsay statement of a party opponent. Chacon , 145 I daho at 817

- 18, 186 P.3d at
673

- 74. In the absence of any suppo rting evidence showing counsel was deficient, Chacon cannot overcome the strong presumption that defense counsel’s decisions, as to the extent he investigated and introduced evidence regarding the confidential informant or opted not to provide a handwritin g expert , were within the range of competent assistance. The district court did not err in denying relief on this claim.
B. Ineffective Assistance of Appellate Counsel
Chacon asserts his appellate counsel provided ineffective assistance by failing to inform Chacon of the ramifications of proceeding pro se and by failing to inform Chacon that by raising
ineffective assistance of counsel claim s on direct appeal, grounds not raised on direct appeal could nonetheless be encompassed by such claims, acting a s a bar to further bringing other potential ineffective assistance of counsel claims on different grounds in future proceedings

. Appellate counsel, in his testimony, stated that he was fired by Chacon and , upon termination, provided Chacon with all the de adline s , records, and transcripts in the case and filed a notice of withdrawal. Appellate counsel testified that he did not allege ineffective assistance of counsel as an issue to be tried in the notice of appeal and , beyond filing the notice, did not dis cuss with
Chacon what other issue s needed to be addressed on appeal in order for Chacon to preserve his right s in the event he continued to represent himself.10 The district court found appellate counsel did not provide advice of the possible
ramification s of proceeding pro se or of including a claim of ineffective assistance of counsel on direct appeal due to counsel’s understanding that the letter received from Chacon terminated the attorney

- client relationship. The district court further found that Cha con presented no evidence that such advice was required under the circumstances. In other words, Chacon did not demonstrate that once Chacon terminated the attorney

- client relationship, appellate counsel still had a duty to provide professional advice to Chacon. Accordingly, Chacon cannot prove deficient or prejudicial performance.
IV. CONCLUSION
We conclude the district court did not err when it found that Chacon presented no evidence that defense counsel’s performance fell below any objective standar d of reasonableness
and , therefore , Chacon failed to demonstrate any deficiency by defense counsel. We further
conclude the district court did not err when it found Chacon did not present evidence showing appellate counsel’s failure to provide advice as t o how to proceed pro se was deficient. Accordingly, we affirm the denial of Chacon’s petition for post

- conviction relief. Chief Judge GRATTON and Judge LANSING CONCUR.