1

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 41248

ARMANDO GARCIA,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

)

)

)

)

)

)

)

)

)

)

2014 Unpublished Opinion No. 857

Filed: December 12, 2014

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED 

OPINION AND SHALL NOT 

BE CITED AS AUTHORITY

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

County. Hon. Timothy L. Hansen, District Judge. 

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

Armando Garcia, Boise, pro se appellant. 

Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

GUTIERREZ, Chief Judge

Armando Garcia appeals from the judgment of the district court summarily dismissing his 

petition for post-conviction relief. For the reasons that follow, we affirm.

I.

FACTS AND PROCEDURE

Underlying this post-conviction relief action is Garcia’s guilty plea to felony trafficking 

in heroin and to another charge in a different case, under an Idaho Criminal Rule 11 plea 

agreement. For the trafficking charge, the district court sentenced Garcia to a unified sentence of 

thirty years with fifteen years determinate. Garcia filed a pro se petition for post-conviction 

relief accompanied by an affidavit, raising a claim that the State breached the plea agreement as 

it related to the trafficking charge and raising ineffective assistance of counsel claims. The 

district court subsequently appointed counsel for Garcia, and Garcia filed what he purported to 

be a second affidavit. The State moved for summary dismissal, and the district court held a 
2

hearing on the State’s motion for summary dismissal. Following the hearing, the district court 

entered a judgment summarily dismissing the petition; Garcia appeals.

II.

STANDARD OF REVIEW

A petition for post-conviction relief initiates a proceeding that is civil in nature. Idaho 

Code § 19-4907; Rhoades v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009); State v. 

Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Murray v. State, 121 Idaho 918, 921, 

828 P.2d 1323, 1326 (Ct. App. 1992). Like a plaintiff in a civil action, the petitioner must prove 

by a preponderance of evidence the allegations upon which the request for post-conviction relief 

is based. 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. Dunlap v. State, 

141 Idaho 50, 56, 106 P.3d 376, 382 (2004). A petition must contain much more than a short 

and plain statement of the claim that would suffice for a complaint under I.R.C.P. 8(a)(1). 

Rather, a petition for post-conviction relief 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 with the petition. I.C. § 19-4903. In other words, the petition must present or be 

accompanied by admissible evidence supporting its allegations or the petition will be subject to 

dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011). 

Idaho Code Section 19-4906 authorizes summary dismissal of a petition for postconviction 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 fact, 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. 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. Roman v. State, 125 

Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994); Baruth v. Gardner, 110 Idaho 156, 159, 715 

P.2d 369, 372 (Ct. App. 1986). Moreover, the district court, as the trier of fact, is not constrained 

to draw inferences in favor of the party opposing the motion for summary disposition; rather, the 

district court is free to arrive at the most probable inferences to be drawn from uncontroverted 
3

evidence. 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. Id. 

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); DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). 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 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); 

Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). If a genuine issue of 

material fact is presented, an evidentiary hearing must be conducted to resolve the factual issues. 

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); Sheahan, 146 Idaho at 104, 190 P.3d at 923. Over questions of law, we exercise free 

review. Rhoades, 148 Idaho at 250, 220 P.3d at 1069; Downing v. State, 136 Idaho 367, 370, 33 

P.3d 841, 844 (Ct. App. 2001). 

III.

ANALYSIS

In his petition for post-conviction relief, Garcia stated two grounds upon which he was 

seeking relief: breach of the plea agreement and ineffective assistance of counsel. Garcia 

specifically raised three ineffective assistance of counsel claims: (a) defense counsel lied to him 

about the plea agreement and had Garcia plead under false pretenses and manipulation; 
4

(b) defense counsel failed to file a notice of appeal; and (c) defense counsel “[f]ailed to argue 5th 

Amend. violation, coercion to make statement, No notification of [Miranda1], and waiver.”2 

Garcia’s attached affidavit merely explained: that his attorney failed to file a notice of appeal 

after Garcia requested the attorney to do so; that a detective coerced his statements and his 

defense counsel “cooperated and participated”; and that Garcia would attempt to gain additional 

access to the record and exhibits and provide them to the court.3

 The purported second affidavit4

listed nine things for which Garcia asserted that defense counsel failed to investigate or did not 

adequately investigate. Following the submission of the purported second affidavit, the State 

moved for summary dismissal.

After a hearing, the district court granted the State’s motion for summary dismissal and 

entered a memorandum decision addressing the claims raised by Garcia. As for the breach of

 

1 See Miranda v. Arizona, 384 U.S. 436 (1966).

2 Garcia’s third ineffective assistance of counsel claim, in effect, argues that counsel failed 

to file a motion to suppress statements that were made involuntarily or in violation of Miranda.

3 Garcia’s initial affidavit states in its entirety:

1) That the grounds and facts of Ineffective Assistance of counsel stated 

are of my personal knowledge.

2) That my attorney failed to file a Notice of Appeal after I requested he 

do so after the Rule 11 Breach.

3) That Detective C. Christansen coerced my statement with indirect 

threats of arrest of my sister in law, and threatened me with years of 

imprisonment if I did not cooperate, and my attorney cooperated and 

participated

4) That at this time I cannot gain access to the record and Exhibits but will 

attempt to get them through discovery or other means and than [sic]

provide them.

5) That this stament [sic] is true and correct to the best of my knowledge.

4 We note that the purported second affidavit was not properly sworn to before a notary 

public; the notary public merely provided a stamp and signature on the last page of the purported 

affidavit. An affidavit must be subscribed and sworn to before a notary, and the notary must 

provide a jurat in accordance with Idaho Code § 51-109(2). See Houston v. Whittier, 147 Idaho 

900, 902, 216 P.3d 1272, 1274 (2009) (“The declaration lacked a jurat, which is necessary in 

order for it to constitute an affidavit.”); Evans v. Twin Falls Cnty., 118 Idaho 210, 218 n.9, 796 

P.2d 87, 95 n.9 (1990) (“The ‘affidavit’ filed by Mr. Evans, while in partial affidavit form, is not 

subscribed and sworn to as an oath or affirmation, as required of an affidavit.”). Therefore, the 

purported second affidavit is not an affidavit under the law.
5

plea agreement claim, the district court first noted that Garcia failed to set forth facts about how 

the State breached the plea agreement. But, the court determined that a supplemental 

memorandum--filed in Garcia’s prior Rule 35 motion to reduce his sentence--alleged that he was 

supposed to be sentenced to a unified term of thirty years, with ten years determinate. Assuming 

that this was the argument that Garcia meant to raise in his petition, the district court found that 

the record in the criminal case conclusively disproved Garcia’s claim.

Next, the district court turned to the ineffective assistance of counsel claims. As for 

Garcia’s claim that defense counsel lied to him about the plea agreement and had him plead 

under false pretenses and manipulation, the district court, after noting that the allegation was not 

supported by facts, determined that the allegation was also contrary to the record of the 

proceedings. For Garcia’s claim that defense counsel failed to file a notice of appeal, the district 

court found that Garcia had effectively waived his right to appeal. As to the last claim in the first 

affidavit concerning defense counsel’s failure to file a motion to suppress, the district court 

determined that this argument was not supported by evidence and was contrary to the record in 

the criminal case. As for the ineffective assistance of counsel claims in the purported second 

affidavit, the district court determined that Garcia failed to support his conclusory allegations 

with admissible evidence. Thus, the district court summarily dismissed the petition.

On appeal, Garcia contends that the district abused its discretion by summarily 

dismissing his petition.5

 Turning to Garcia’s breach of plea agreement claim, the claim is a bare 

assertion not supported by admissible evidence explaining how the plea agreement was 

breached. Thus, Garcia has not established as a matter of law how he is entitled to relief, and the 

State is entitled to judgment as a matter of law on this claim. 

The State is also entitled to judgment as a matter of law on the ineffective assistance of 

counsel claims. For the failure to file an appeal claim, defense counsel did not provide 

 

5 To the extent that Garcia attempts to raise additional issues in his appellate brief that he

did not raise in his post-conviction petition, we will not consider these issues on appeal. 

Generally, issues not raised below may not be considered for the first time on appeal. Sanchez v. 

Arave, 120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991). In addition, we will not address 

arguments that are raised for the first time in the reply brief, because “[a] reviewing court looks 

only to the initial brief on appeal for the issues presented because those are the arguments and 

authority to which the respondent has an opportunity to respond in the respondent’s brief.” Suitts 

v. Nix, 141 Idaho 706, 708, 117 P.3d 120, 122 (2005). 
6

ineffective assistance by failing to file a notice of appeal because: the plea agreement waived 

Garcia’s right to appeal, there is no evidence that the plea agreement was breached, and the 

record conclusively demonstrates that Garcia’s plea agreement was made knowingly, voluntarily, 

and intelligently.6

 See State v. Allen, 143 Idaho 267, 270, 141 P.3d 1136, 1139 (Ct. App. 2006) 

(explaining that unless the State has breached the plea agreement, “[a] defendant’s waiver of the 

right to appeal as a term of a plea bargain is generally valid and enforceable.”); see also Ray v. 

State, 133 Idaho 96, 99, 982 P.2d 931, 934 (1999) (discussing that in a plea agreement, waiver of 

constitutional rights “will be upheld if the entire record demonstrates the waiver was made 

voluntarily, knowingly and intelligently”). As to Garcia’s claim that defense counsel failed to 

file a motion to suppress, this claim is not elucidated or supported by admissible evidence. 

Moreover, the record reveals that defense counsel did file a motion to suppress and that there 

was a hearing held on the motion at which Garcia and the detective testified. Indeed, the 

transcript of the hearing reveals that Garcia testified that he was threatened by a detective in a 

police interview and also reveals that a signed Miranda waiver was introduced along with 

testimony from the detective indicating that he did advise Garcia of his Miranda rights. Garcia’s 

reference to “waiver” and that defense counsel “cooperated and participated” is not explained or 

supported by admissible evidence. For the remaining ineffective assistance of counsel claims, 

including the claims raised in the purported second affidavit, Garcia did not submit admissible 

evidence supporting (or explaining) his claims, which are merely conclusory allegations. See 

Kelly, 149 Idaho at 521, 236 P.3d at 1281. Accordingly, Garcia is not entitled to relief on his 

ineffective assistance of counsel claims, and the State is entitled to judgment as a matter of law. 

In summary, Garcia’s claims are clearly disproven by the record of the criminal 

proceedings, are not supported by evidence making a prima facie case as to each essential 

element of the claims, or do not justify relief as a matter of law. Therefore, the district court 

properly entered a judgment summarily dismissing Garcia’s petition for post-conviction relief. 

Hence, the district court’s judgment is affirmed.

Judge LANSING and Judge GRATTON, CONCUR. 

 

6 In the transcript of the change of plea hearing, the court proceeds through the colloquy 

with Garcia and it is apparent that the plea was entered into knowingly and voluntarily. The 

transcript shows that Garcia was fully aware that the plea agreement did not limit his sentence to 

ten years as he now alleges.