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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 40600

JAMES NEIL MOEN,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2014 Unpublished Opinion No. 768

Filed: October 15, 2014

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED 

OPINION AND SHALL NOT 

BE CITED AS AUTHORITY

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

Kootenai County. Hon. Michael J. Griffin, District Judge. 

Judgment of the district court summarily dismissing amended petition for postconviction relief, affirmed in part, reversed in part, and case remanded.

Nevin, Benjamin, McKay & Bartlett, LLP; Robyn A. Fyffe, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

GUTIERREZ, Chief Judge

James Neil Moen appeals from the judgment of the district court summarily dismissing 

his amended petition for post-conviction relief. For the reasons that follow, we affirm in part,

reverse in part, and remand.

I.

FACTS AND PROCEDURE

This post-conviction action arises out of Moen’s conviction for felony driving under the 

influence. As part of a plea agreement, Moen pled guilty to felony driving under the influence 

and was sentenced to a unified term of eight years, with three years determinate.1

 The trial court 

 

1 According to the parties’ briefing, the plea agreement dismissed a persistent violator 

allegation and reduced a domestic battery charge to misdemeanor battery. Although the facts in 

the briefing are quite detailed, the record that was properly before the district court, and thus 

properly before this Court, contains little background information, save for the judgment of 

conviction. For instance, Moen’s appellate brief contains more than twenty-five pages of facts, 
2

retained jurisdiction for 180 days and stated in its judgment of conviction that it strongly 

recommended Moen participate in “A New Directions” program and that “Level A” be used.2 

The judgment of conviction further stated that “attention should be paid by the Department of 

Correction to the applicable mental health condition ___,” and the judge wrote, “Please provide a 

mental health evaluation.” After several continuances, the court conducted a jurisdictional 

review hearing. The court relinquished jurisdiction and modified Moen’s sentence to a unified 

term of eight years, with one-and-a-half years determinate.

Moen then filed a pro se Rule 35 motion for reduction of his sentence. Among other 

things, Moen alleged that his mental health issues were not addressed or taken into consideration 

during sentencing. Moen also filed a request for appointment of counsel. The trial court denied 

Moen’s motion for reduction of sentence after determining that it was meritless, and therefore 

found that the appointment of counsel was unnecessary. Moen appealed that decision, and we 

affirmed in State v. Moen, Docket No. 35907 (Ct. App. Oct. 15, 2010) (unpublished). In part, we 

discussed Moen’s claim that his mental health issues were not addressed or taken into 

consideration:

At the sentencing hearing, Moen submitted a competency evaluation and a 

substance abuse assessment for the district court’s consideration. The 

competency evaluation provided diagnoses of adjustment disorder with anxiety 

and personality disorder with antisocial and narcissistic features, and the 

assessment provided that Moen had indications of mental health problems. The 

competency evaluation also explained that Moen acts out antisocially and has 

difficulty coping with the legal system when he does not get his way. At the 

jurisdictional review hearing, the district court inquired whether Moen had the 

resources to obtain a psychological evaluation. After Moen’s counsel stated that 

it was likely that an evaluation could be accomplished, the district court continued 

the hearing. At the continued hearing, Moen requested another continuance so 

that he could complete a psychological evaluation, which the district court 

granted. However, when the hearing was finally held, Moen proceeded despite 

the fact that no evaluation had been accomplished. Moen has failed to show that 

the district court did not take into consideration his mental issues.

Moen, Docket No. 35907 (footnote omitted).

 

including several pages that cite to transcripts and block quotations that are not part of the record 

before this Court.

2 It is not clear from the record what Level A is, but presumably it is a level of treatment.
3

After we affirmed the denial of his Rule 35 motion, Moen filed a pro se petition for postconviction relief, alleging judicial misconduct and ineffective assistance of defense counsel and 

appellate counsel. Moen also moved the court to appoint counsel, and the district court 

subsequently appointed the public defender to represent Moen. Although Moen was represented, 

he attempted to file numerous documents, motions, and letters with the court. Subsequently, 

counsel filed an amended petition3 on Moen’s behalf. The amended petition alleged ineffective 

assistance of defense counsel, alleged that Moen was denied procedural due process by the court 

refusing to obtain a psychological evaluation prior to sentencing and prior to the jurisdictional 

review hearing, and alleged that Moen was denied procedural due process when the court 

permitted the State to prosecute Moen upon an information, rather than an indictment. Even 

after the amended petition was filed and although he was represented by the public defender’s 

office, Moen continued to send documents to the district court. 

In the course of proceedings below, three public defenders represented Moen. The last 

public defender moved to withdraw and, following a hearing, the court announced that it would 

grant the third attorney’s motion to withdraw, but the judge stated that he wanted to take a fresh 

look at Moen’s post-conviction petition. 

Two weeks after the hearing, the district court filed a notice of intent to dismiss4 that 

generally determined that the amended petition contained unsubstantiated, conclusory allegations 

and did not contain evidence sufficient to support any ground for relief.5 On the same day, the 

 

3 The amended petition was referred to as a supplemental petition by Moen’s attorney. 

However, supplemental pleadings “set[] forth transactions or occurrences or events which have 

happened since the date of the pleading sought to be supplemented, whether or not the original 

pleading is defective in its statement of a claim for relief.” Idaho Rule of Civil Procedure 15(d). 

The pleading filed by Moen’s attorney addresses the original transaction or occurrence in the 

pro se petition and is, instead, an amended pleading. See I.R.C.P. 15(a). Moreover, throughout 

the proceedings below, the district court treated the “supplemental petition” as an amended 

pleading, and Moen did not object to the district court’s treatment of the “supplemental petition.”

4 Although the State filed a motion to dismiss, the district court’s notice of intent to dismiss 

was not based upon the State’s motion.

5 The district court’s notice of intent contained other grounds and further discussion that 

was not reiterated in the order summarily dismissing Moen’s amended petition for postconviction relief.
4

district court also filed an order allowing the third attorney to withdraw. Coincidentally, a

“Motion for Rehearing on Summary Disposition to Preserve Thirty Constitutional Violations in 

P.C.R. that Attorney Failed to do” was file stamped on the same day, although it had been signed 

by Moen and presumably sent while Moen was still represented. The district court entered an 

order, also on the same day, denying that motion. In the order the court noted, “There has been 

no hearing on the State’s motion for summary disposition,” and further stated, “The only matter 

pending before the court is the Notice of Intent to Dismiss which the petitioner has not yet 

replied to.” 

Moen moved for re-appointment of counsel and filed a “Motion to Dismiss Prosecutions

‘Notice of Intent to Dismiss’ and Moves for Evidentiary Hearing.” Additionally, Moen filed an 

affidavit that set forth various accusations and listed issues, exhibits, and citations to various 

legal sources.6 The district court then denied Moen’s motion for appointment of counsel, finding 

that an attorney would not assist Moen in presenting a valid claim. Subsequently, the court 

ordered Moen’s amended petition for post-conviction relief be summarily dismissed because 

Moen failed to state grounds upon which relief could be granted. The court noted that Moen 

filed additional documents, but it determined that Moen did not produce admissible evidence to 

support his claims for post-conviction relief. Moen 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 

 

6 For example, the affidavit stated, “The Petitioner accuses the State of Idaho of (ignoring) 

all the fact and support State and federal laws that are in the Petitioner[’]s argument that proves 

the State is and has violated the Petitioner[’]s right of the constitution.” 
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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 

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 
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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. 

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

In this appeal, we address numerous arguments raised by Moen in his voluminous, 

seventy-eight-page opening appellate brief. We begin by addressing Moen’s arguments that the 

district court denied him a meaningful opportunity to present his post-conviction claims; refused 

to address the various issues that Moen raised in his pro se filings during the time he was 

represented by counsel; and violated his right to due process by, sua sponte and without prior 
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notice, dismissing several claims raised by him, including claims that he raised in his pro se 

filings. We then turn to Moen’s argument that the district court erred by not appointing 

replacement counsel. Because we must consider whether Moen alleged facts that raised the 

possibility of a valid claim, we concurrently address Moen’s remaining issue of whether the 

district court erred by summarily dismissing his amended petition for post-conviction relief. 

A. Opportunity to Present Claims, Pro Se Filings, and Notice of Intent to Dismiss

Moen contends that the district court violated his right to due process by denying him a 

meaningful opportunity to present his post-conviction claims. Moen argues that he was denied 

due process when the district court initially did not accept or file the first post-conviction petition 

he attempted to file. This claim is now moot because the district court subsequently accepted 

and filed the pro se post-conviction petition. 

Moen also claims that the district court refused to address the various issues that he raised 

in his pro se filings during the time he was represented by counsel. When a party is represented, 

every pleading, motion, or other paper filed on behalf of the party must be signed by an Idaho 

licensed attorney. I.R.C.P. 11(a)(1) (“Every pleading, motion, and other paper of a party 

represented by an attorney shall be signed by at least one (1) licensed attorney of record of the 

state of Idaho, in the attorney’s individual name, whose address shall be stated before the same 

may be filed.”). As the Pennsylvania Supreme Court articulated, “We will not require courts 

considering [post-conviction] petitions to struggle through the pro se filings of defendants when 

qualified counsel represent those defendants.” Commonwealth v. Pursell, 724 A.2d 293, 302

(Pa. 1999); accord Commonwealth v. Ellis, 626 A.2d 1137, 1141 (Pa. 1993) (“[A defendant may 

not] confuse and overburden the court by his own pro se filings of briefs at the same time his 

counsel is filing briefs on his behalf.”). Accordingly, the district court did not deny Moen due 

process by not considering the pro se filings by Moen while he was represented.

Moen next maintains that the district court violated his right to due process by, sua sponte 

and without prior notice, dismissing several claims raised by him, including claims that he raised 

in his pro se filings. The State contends that Moen was provided the notice he was due. Here, 

the notice of intent informed Moen that the amended petition was “not supported by evidence 

which would raise a genuine material issue of fact regarding any of the claims for relief set forth 

in the [amended] petition.” (Emphasis added.) Whether this notice of intent was sufficient is an 

issue that we may not address on appeal because Moen did not raise it before the district court. 
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See Kelly, 149 Idaho at 522, 236 P.3d at 1282 (“Clearly, the State’s [motion for summary 

dismissal] gave Kelly notice of the ground on which this claim was dismissed, irrespective of 

whether that notice was sufficient (an issue Kelly waived by failing to raise it before the district 

court) it was notice nonetheless.”). Additionally, as we discussed above, the district court was 

not bound to consider Moen’s pro se filings.

B. Refusal to Appoint Replacement Counsel and Summary Dismissal

We now turn to the issue of whether the district court abused its discretion when it 

refused to appoint replacement counsel. The State argues that Moen had the benefit of at least 

two attorneys, that Moen’s claims are frivolous or meritless, and that Moen’s rights are limited 

by the statute providing for the right to counsel. If a post-conviction petitioner is unable to pay 

for the expenses of representation, the trial court may appoint counsel to represent the petitioner 

in preparing the petition, in the trial court, and on appeal. I.C. § 19-4904. The decision to grant 

or deny a request for court-appointed counsel lies within the discretion of the district court. 

Charboneau, 140 Idaho at 792, 102 P.3d at 1111. When a district court is presented with a 

request for appointed counsel, the court must address this request before ruling on the 

substantive issues in the case. Id.; Fox v. State, 129 Idaho 881, 885, 934 P.2d 947, 951 (Ct. App. 

1997). The district court abuses its discretion where it fails to determine whether a petitioner for 

post-conviction relief is entitled to court-appointed counsel before denying the petition on the 

merits. See Charboneau, 140 Idaho at 793, 102 P.3d at 1112. 

In determining whether to appoint counsel pursuant to section 19-4904, the district court 

should determine if the petitioner is able to afford counsel and whether the situation is one in 

which counsel should be appointed to assist the petitioner. Charboneau, 140 Idaho at 792, 102 

P.3d at 1111. In its analysis, the district court should consider that petitions filed by a pro se 

petitioner may be conclusory and incomplete. See id. at 792-93, 102 P.3d at 1111-12. Facts 

sufficient to state a claim may not be alleged because they do not exist or because the pro se 

petitioner does not know the essential elements of a claim. Id. Some claims are so patently 

frivolous that they could not be developed into viable claims even with the assistance of counsel. 

Newman v. State, 140 Idaho 491, 493, 95 P.3d 642, 644 (Ct. App. 2004). However, if a 

petitioner alleges facts that raise the possibility of a valid claim, the district court should appoint 

counsel in order to give the petitioner an opportunity to work with counsel and properly allege 

the necessary supporting facts. Charboneau, 140 Idaho at 793, 102 P.3d at 1112. 
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When a district court’s discretionary decision is reviewed on appeal, the appellate court 

conducts a multi-tiered inquiry to determine: (1) whether the lower court correctly perceived the 

issue as one of discretion; (2) whether the lower court acted within the boundaries of such 

discretion and consistently with any legal standards applicable to the specific choices before it; 

and (3) whether the court reached its decision by an exercise of reason. Sun Valley Shopping 

Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991). 

Because in addressing the issue of appointment of replacement counsel we must 

determine whether Moen’s amended petition alleged facts that raised the possibility of a valid 

claim, we concurrently address Moen’s argument that the court erred by summarily dismissing 

his amended petition for post-conviction relief. Moen contends that he raised a genuine issue of 

material fact on several issues, including whether (1) he was entitled to relief due to the trial 

court’s failure to sua sponte order a psychological evaluation for sentencing and its decision to 

proceed with the jurisdictional review hearing notwithstanding the unavailability of the 

scheduled psychological evaluation and other supporting documentation; (2) Moen’s right to due 

process was violated when the trial court accepted Moen’s plea; (3) the trial court violated his 

right to a fair tribunal; (4) the State violated Moen’s substantial right to be tried on charges 

presented in an indictment returned by a grand jury; and (5) defense counsel provided ineffective 

assistance of counsel. We address these claims in turn.

1. Failure to sua sponte order a psychological evaluation

Moen claims he raised a genuine issue of material fact as to whether the trial court 

violated his right to due process by failing to sua sponte order a psychological evaluation prior to 

sentencing and by proceeding with a jurisdictional review hearing without a psychological 

evaluation. At sentencing, procedural due process requires that “(1) the defendant must be 

afforded a full opportunity to present favorable evidence; (2) the defendant must be given a 

reasonable opportunity to examine all materials contained in the presentence report; and (3) the 

defendant must be afforded a full opportunity to explain and rebut adverse evidence.” State v. 

Gain, 140 Idaho 170, 174-75, 90 P.3d 920, 924-25 (Ct. App. 2004) (citing State v. Morgan, 109 

Idaho 1040, 1043, 712 P.2d 741, 744 (Ct. App. 1985)); see also State v. Moore, 93 Idaho 14, 17, 

454 P.2d 51, 54 (1969) (discussing procedural due process in both probation application and 

probation revocation proceedings). 
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Relevant to this appeal, Idaho Code § 19-2522 requires a trial court to appoint at least one 

psychiatrist or licensed psychologist to examine and report upon the mental condition of the 

defendant “[i]f there is reason to believe the mental condition of the defendant will be a 

significant factor at sentencing and for good cause shown.” I.C. § 19-2522(1); accord State v. 

Coonts, 137 Idaho 150, 152, 44 P.3d 1205, 1207 (Ct. App. 2002) (“The language of this statute is 

mandatory, requiring that the trial court obtain a psychological evaluation whenever there is 

reason to believe that the defendant’s mental condition will be of significance for the 

determination of an appropriate sentence.”). Under certain conditions, a court may consider a 

previously conducted mental health examination instead of ordering a new evaluation. I.C. § 19-

2522(6). If a court orders an evaluation under Idaho Code § 19-2522(1), the evaluation must be 

conducted before sentencing. Coonts, 137 Idaho at 153, 44 P.3d at 1208. A court-ordered 

psychological evaluation completed during a period of retained jurisdiction does not satisfy 

section 19-2522(1)’s requirement that the evaluation be completed before sentencing. State v. 

Jockumsen, 148 Idaho 817, 823, 229 P.3d 1179, 1185 (Ct. App. 2010); State v. Banbury, 145 

Idaho 265, 269, 178 P.3d 630, 634 (Ct. App. 2007).

In Moen’s amended petition for post-conviction relief, Moen contended that the trial 

court denied him procedural due process by not sua sponte ordering a psychological evaluation 

prior to sentencing and prior to relinquishing jurisdiction. When the trial court failed to sua 

sponte order a psychological evaluation before sentencing, Moen argues that he was deprived of 

a full opportunity to present favorable evidence and to explain and rebut adverse evidence. 

Similarly, when the trial court relinquished jurisdiction without a psychological evaluation, 

Moen contends that he was prevented from providing mitigating information and from rebutting 

adverse information. The State contends that Moen was given an opportunity to examine and 

respond to the psychological evidence presented at sentencing and to provide additional 

psychological evidence. In addition, the State asserts that Moen’s argument contending that the 

trial court was required to sua sponte order a psychological evaluation is frivolous. 

We are persuaded that the district court did not err by summarily dismissing this claim. 

The heart of Moen’s argument on appeal is that the trial court’s failure to sua sponte order an 

evaluation before sentencing violated Moen’s constitutional right to due process. This argument 

has been rejected by the Idaho Supreme Court. State v. Clinton, 155 Idaho 271, 273, 311 P.3d 

283, 285 (2013) (“Because the district court’s failure to sua sponte order the evaluation did not 
11

violate a constitutional right, it does not constitute a fundamental error that is reviewable on 

appeal.”). Additionally, Moen’s argument that he was denied due process at the jurisdictional 

review hearing is contravened by State v. Coassolo, 136 Idaho 138, 143, 30 P.3d 293, 298 (2001) 

(concluding that no constitutionally protected liberty interest exists at a jurisdictional review 

hearing). Because Moen did not allege facts that raised the possibility of a valid claim, the 

district court did not abuse its discretion by not appointing replacement counsel to assist Moen 

with this claim. 

2. Acceptance of the guilty plea

Moen next contends that he raised a genuine issue of material fact as to whether the trial 

court violated his right to due process by accepting an involuntary and unintelligent plea. 

Additionally, Moen argues that he raised a genuine issue of material fact as to whether the trial 

court violated his right to due process by imposing additional conditions to the plea agreement 

with which he could not comply. We do not consider these issues on appeal because the issues 

were not raised in the amended petition and were not considered by the district court. 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). Because Moen did 

not allege facts that raised the possibility of valid claims in his amended petition, the district 

court did not abuse its discretion by not appointing replacement counsel to assist Moen with 

these claims. 

3. Fair tribunal

Moen also claims that he raised a genuine issue of material fact as to whether he was 

denied a fair tribunal. We do not consider this issue on appeal because the issue was not raised 

in the amended petition and was not considered by the district court. See id. (explaining that, 

generally, issues not raised below may not be considered for the first time on appeal). Because 

Moen did not allege facts that raised the possibility of a valid claim in his amended petition, the 

district court did not abuse its discretion by not appointing replacement counsel to assist Moen 

with this claim. 

4. Grand jury

Moen asserts that he raised a genuine issue of material fact as to whether the State 

violated a substantial right by trying him via an information rather than by a grand jury 

indictment. According to Moen, McDonald v. Chicago, 561 U.S. 742 (2010), revised the 
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analysis used by the United States Supreme Court in Hurtado v. California, 110 U.S. 516 (1884), 

and application of the McDonald standard to the right to be indicted by a grand jury establishes 

that the right applies to the states via the Fourteenth Amendment. Citing Hurtado, the State 

argues that the claim is frivolous, contending that Moen did not have a federal constitutional 

right to a grand jury indictment in a state court criminal proceeding. We agree with the State that 

Moen’s argument, which fills more than two pages in Moen’s brief, is frivolous. McDonald did 

not purport to change Hurtado, and it is well established that the State may proceed by 

indictment or information. Warren v. Craven, 152 Idaho 327, 330, 271 P.3d 725, 728 (Ct. App. 

2012). Accordingly, the district court did not err by summarily dismissing this claim. Moreover, 

because Moen did not allege facts that raised the possibility of a valid claim, the district court did 

not abuse its discretion by not appointing counsel to assist Moen with this claim. 

5. Ineffective assistance of counsel

Moen next claims he raised a genuine issue of material fact as to whether his defense 

counsel provided 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 that 

the petitioner was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 

(1984); Self v. State, 145 Idaho 578, 580, 181 P.3d 504, 506 (Ct. App. 2007). To establish a 

deficiency, the petitioner 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); Knutsen v. State, 144 Idaho 433, 442, 163 P.3d 222, 231 (Ct. App. 2007). Where, 

as here, the petitioner was convicted upon a guilty plea, to satisfy the prejudice element, the 

petitioner must show that there is a reasonable probability that, but for counsel’s errors, he or she 

would not have pled guilty and would have insisted on going to trial. Plant v. State, 143 Idaho

758, 762, 152 P.3d 629, 633 (Ct. App. 2006). 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. Gonzales v. State, 151 Idaho 168, 172, 254 P.3d 

69, 73 (Ct. App. 2011). 
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a. Guilty plea

Moen asserts that he raised a genuine issue of material fact as to whether he received 

ineffective assistance of counsel during plea negotiations and entry of the plea. Although 

Moen’s pro se petition asserted that “Petitioner claims he was coerced, threaten[ed] and 

intimidated by counsel with acts of misconduct on all parties if [a] guilty plea was not entered,” 

this issue was not raised in the amended petition. We do not consider this issue on appeal 

because the issue was not raised in the amended petition and was not considered by the district 

court. See Sanchez, 120 Idaho at 322, 815 P.2d at 1062. Because Moen did not allege facts that 

raised the possibility of a valid claim, the district court did not abuse its discretion by not 

appointing counsel to assist Moen with this claim. 

b. Psychological evaluation

In his amended petition, Moen asserted that his attorney at sentencing provided 

ineffective assistance of counsel by not requesting an Idaho Code § 19-2522 mental health 

evaluation before or at sentencing. Specifically, Moen averred that his defense counsel at 

sentencing had an Idaho Code § 18-211 report concerning Moen’s fitness to proceed at trial 

which “diagnosed [him] as having personality disorder and adjustment disorder with narcissistic 

and antisocial features.” Moen also asserted that defense counsel at sentencing had a substance 

abuse assessment and mental health screening. According to the amended petition, Moen’s 

defense counsel referred to both reports when she requested that the Department of Correction 

perform a mental health evaluation. Thus Moen asserted that defense counsel at sentencing was 

deficient for failing to seek an Idaho Code § 19-2522 presentence mental health evaluation and 

that he was prejudiced. 

Although the facts alleged in the amended petition do not fully establish the existence of 

this claim, they do at least raise the possibility of it. See Charboneau, 140 Idaho at 793, 102 

P.3d at 1112. Another attorney may assist Moen to develop this claim by presenting additional 

facts, including the transcripts, to help develop this claim. See Plant, 143 Idaho at 762, 152 P.3d 

at 633 (“Admittedly, [Plant’s] allegations do not state particular facts upon which Plant premises 

his contention that there was a violation of the Fourth Amendment knock and announce rule or 

Idaho’s knock and announce statute, I.C. § 19-4409, but it is possible that with the assistance of 

counsel, such facts could be presented.”). Accordingly, the district court abused its discretion by 

denying Moen’s request for appointment of replacement counsel. Because the district court 
14

should have appointed replacement counsel to assist Moen with the development of this claim, 

we reverse the judgment summarily dismissing the amended petition and remand the case to the 

district court to appoint counsel to assist Moen in developing the ineffective assistance of 

counsel claim concerning the psychological evaluation for sentencing purposes.

Similarly, in his amended petition, Moen asserted that his attorney at the jurisdictional 

review hearing provided ineffective assistance of counsel by not requesting an I.C. § 19-2522

psychological evaluation. However, our case law instructs that a court-ordered psychological 

evaluation completed during a period of retained jurisdiction does not satisfy section 19-

2522(1)’s requirement that the evaluation be completed before sentencing. Jockumsen, 148 

Idaho at 823, 229 P.3d at 1185; Banbury, 145 Idaho at 269, 178 P.3d at 634. For this reason, an 

attorney representing a client after sentencing but before the retained jurisdiction hearing does 

not provide deficient performance when the attorney does not seek a section 19-2522 mental 

health evaluation. Accordingly, the district court did not err by summarily dismissing this claim. 

Because Moen did not allege facts that raised the possibility of a valid claim in his amended 

petition, the district court did not abuse its discretion by not appointing replacement counsel to 

assist Moen with this claim. 

6. Other claims

In his opening appellate brief, Moen utilizes ten pages to list and analyze several claims 

that he asserts could have been raised had replacement counsel been appointed. These claims 

were not raised in the pro se petition or amended petition. Because Moen did not allege facts 

that raised the possibility of these claims in his amended petition and because Moen did not 

explain in his amended petition why affidavits, records, or other evidence supporting these 

claims were not included, I.C. § 19-4903, the district court did not abuse its discretion in not 

appointing replacement counsel to assist Moen with these claims. 

As an aside, we remind counsel that Idaho Appellate Rule 11.2(a) specifies that an 

attorney’s signature on an appellate brief filed in this State certifies that the brief “is well 

grounded in fact and is warranted by existing law or a good faith argument for the extension, 

modification, or reversal of existing law.” In criminal appeals, attorneys may be required to 

submit a brief, even if the brief raises frivolous issues. See State v. McKenney, 98 Idaho 551, 

552, 568 P.2d 1213, 1214 (1977) (per curiam) (rejecting the Anders v. California, 386 U.S. 739 

(1967) approach, and holding, “that once counsel is appointed to represent an indigent client 
15

during appeal on a criminal case, no withdrawal will thereafter be permitted on the basis that the 

appeal is frivolous or lacks merit”). However, post-conviction appeals are civil in nature, see

I.C. § 19-4907; Yakovac, 145 Idaho at 443, 180 P.3d at 482, and are not subject to McKenney. 

Idaho Appellate Rule 11.2(a) authorizes this Court to “impose upon the person who signed it, a 

represented party, or both, an appropriate sanction, which may include an order to pay to the 

other party or parties the amount of the reasonable expenses incurred because of the filing of [the 

document] including a reasonable attorney’s fee.” A great many of the claims of error raised in 

this appeal were frivolous either because they were moot or not raised in either the original or 

amended petition, or because they were utterly without support in the law or a good faith 

argument for modification of the law.

III.

CONCLUSION

We conclude that Moen’s argument that the district court denied him a meaningful 

opportunity to present his post-conviction claims is moot. We also conclude that the district 

court did not abuse its discretion by not considering the pro se filings by Moen while he was 

represented. We further conclude that the district court did not violate Moen’s right to due 

process by dismissing several post-conviction claims sua sponte and without notice. To the 

contrary, the district court gave Moen notice that his claims were not supported by admissible 

evidence that would raise a genuine issue of material fact for any of the claims raised by Moen, 

and the sufficiency of the notice may not be challenged on appeal because Moen did not object 

below.

As to Moen’s contention that the court erred by failing to appoint replacement counsel, 

we conclude that Moen’s amended petition failed to allege facts raising the possibility of a valid 

claim except for the claim of ineffective assistance of counsel concerning the psychological 

evaluation for sentencing purposes. The district court should have appointed replacement 

counsel to assist Moen with this claim. Accordingly, we affirm in part and reverse in part the 

judgment of the district court summarily dismissing Moen’s amended petition and remand for 

further proceedings consistent with this opinion. 

Judge MELANSON CONCURS.

Judge LANSING CONCURS IN THE RESULT.