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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 41344

OSCAR GOMEZ,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2015 Unpublished Opinion No. 454

Filed: April 6, 2015

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

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

Canyon County. Hon. Juneal C. Kerrick, District Judge. 

Judgment of the district court denying petition for post-conviction relief, affirmed.

Oscar Gomez, Boise, pro se appellant.

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

General, Boise, for respondent. 

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GUTIERREZ, Judge

Oscar Gomez appeals from the judgment of the district court denying his petition for 

post-conviction relief following an evidentiary hearing. Underlying this post-conviction action, 

Gomez pled guilty to second degree murder, for which he was sentenced to a unified life 

sentence, with twenty-five years determinate; we affirmed his judgment of conviction, his 

sentence, and the denial of an Idaho Criminal Rule 35 motion in State v. Gomez, Docket 

No. 33929 (Ct. App. Nov. 15, 2007) (unpublished).

In 2008, Gomez filed a pro se petition for post-conviction relief, the subject of this 

appeal. That petition asserted that the State breached the plea agreement, that the trial court did 

not adequately consider that Gomez’s methamphetamine use “was a key element to the case,” 

and that defense counsel provided ineffective assistance by: (a) not asserting self-defense, 

(b) not moving to suppress Gomez’s confession, and (c) not “attempt[ing] to mitigate [Gomez’s] 
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sentence.” Gomez also moved for the appointment of counsel, which the district court granted, 

and the State subsequently filed a motion for summary dismissal. 

At a hearing on the motion for summary dismissal in 2011, Gomez’s post-conviction 

counsel acknowledged the court’s understanding of an agreement between the State and Gomez 

in which Gomez “abandoned all of the allegations except for [two].”1

 The two remaining 

allegations were that defense counsel provided ineffective assistance by not filing a motion to 

suppress and by not asserting self-defense. Following a hearing on the motion for summary 

dismissal, the district court dismissed the claim that defense counsel provided ineffective 

assistance by not asserting self-defense but denied the motion for summary dismissal as to the 

motion to suppress claim. After an evidentiary hearing, the district court denied the claim that 

defense counsel provided ineffective assistance by not filing a motion to suppress, and Gomez 

appeals.

On appeal, Gomez does not address the grounds upon which the district court summarily 

dismissed his claim of ineffective assistance of counsel relating to self-defense, nor does he 

address the grounds upon which the district court denied the claim that defense counsel provided 

ineffective assistance by not filing a motion to suppress. Rather, he argues that his guilty plea 

was coerced, that the prosecutor committed prosecutorial misconduct by breaching the plea 

agreement, and that defense counsel provided ineffective assistance by: (a) not memorializing 

the plea agreement in writing as an I.C.R. 11 plea agreement, (b) not objecting to the State’s 

breach of the plea agreement, and (c) breaching the plea agreement. These claims were not 

raised below or were abandoned below (and therefore not adjudicated before the district court). 

Thus, we may not consider these issues on appeal. See Sanchez v. Arave, 120 Idaho 321, 322, 

815 P.2d 1061, 1062 (1991) (explaining that, generally, issues not raised below may not be 

considered for the first time on appeal). Accordingly, the judgment denying Gomez’s petition 

for post-conviction relief is affirmed.

Chief Judge MELANSON and Judge LANSING CONCUR. 

 1 Post-conviction counsel also explained that he “had a lengthy conversation with 

[Gomez] . . . about this. We went through line by line. And those are the two claims [Gomez is] 

wishing to go forward on.”