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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 42258

TYLER SHAWN CLAPP,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2015 Unpublished Opinion No. 503

Filed: May 26, 2015

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THIS IS AN UNPUBLISHED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. Michael E. Wetherell, District Judge. 

Judgment of the district court summarily dismissing amended petition for postconviction relief, affirmed.

Nevin, Benjamin, McKay & Bartlett, LLP; Dennis A. Benjamin, Boise, for 

appellant.

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

Attorney General, Boise, for respondent. 

________________________________________________

GUTIERREZ, Judge

Tyler Shawn Clapp appeals from the judgment of the district court summarily dismissing 

his amended petition for post-conviction relief. He argues that the district court dismissed two 

claims on grounds different from those asserted by the State in its motion for summary dismissal, 

and therefore without the required notice. He also argues that the district court erroneously 

dismissed one of the claims. For the reasons that follow, we affirm.

I.

FACTS AND PROCEDURE

Underlying this post-conviction relief action, Clapp pled guilty to felony driving under 

the influence and was, at some point, on probation with a suspended sentence. After Clapp 

violated his probation, the trial court revoked Clapp’s probation and executed a reduced 

sentence, granted sua sponte pursuant to Idaho Criminal Rule 35. Clapp filed his own Rule 35 
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motion seeking further reduction of his sentence, but that motion was denied. Clapp appealed, 

arguing that his sentence was excessive and that the trial court should have further sua sponte 

reduced his sentence; this Court affirmed in State v. Clapp, Docket No. 39389 (Ct. App. Nov. 13, 

2012) (per curiam) (unpublished).

Clapp then filed a pro se petition for post-conviction relief and, after counsel was 

appointed to represent him, filed an amended petition for post-conviction relief. The amended 

petition alleged five claims, including claims of ineffective assistance of defense counsel and 

appellate counsel. The State moved for summary dismissal, and the district court granted the 

State’s motion. Clapp appeals.

II.

ANALYSIS

On appeal, Clapp argues that the district court erred by summarily dismissing his 

amended petition for post-conviction relief. Specifically, Clapp contends that the court erred by 

dismissing his ineffective assistance of defense counsel claim on grounds different from those 

asserted by the State, and therefore without the required notice. Clapp also asserts that the court 

erred by dismissing his ineffective assistance of appellate counsel claim on grounds different 

from those asserted by the State, and therefore without the requisite notice, and further avers that 

this claim was erroneously dismissed.

Idaho Code section 19-4906 authorizes summary dismissal of a petition for postconviction relief, either pursuant to motion of a party or upon the court’s own initiative. 

Summary dismissal of a petition pursuant to I.C. § 19-4906 is the procedural equivalent of 

summary judgment under Idaho Rule of Civil Procedure 56. A claim for post-conviction relief 

will be subject to summary dismissal if the petitioner has not presented evidence making a prima 

facie case as to each essential element of the claims upon which the petitioner bears the burden 

of proof. DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary 

dismissal is permissible when the petitioner’s evidence has raised no genuine issue of material 

fact that, if resolved in the petitioner’s favor, would entitle the petitioner to the requested relief. 

If such a factual issue is presented, an evidentiary hearing must be conducted. Goodwin v. State, 

138 Idaho 269, 272, 61 P.3d 626, 629 (Ct. App. 2002). Summary dismissal of a petition for 

post-conviction relief may be appropriate, however, even where the State does not controvert the 

petitioner’s evidence because the court is not required to accept either the petitioner’s mere 
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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).

Where the State has filed a motion for summary disposition, but the court dismisses the 

petition on grounds different from those asserted in the State’s motion, it does so on its own 

initiative and the court must provide twenty days’ notice. Saykhamchone v. State, 127 Idaho 

319, 322, 900 P.2d 795, 798 (1995). If the district court dismisses on grounds not contained in 

the State’s motion, the petitioner has no opportunity to respond and attempt to establish a 

material issue of fact. See Baxter v. State, 149 Idaho 859, 865, 243 P.3d 675, 681 (Ct. App. 

2010). 

A. Ineffective Assistance of Defense Counsel 

In his amended petition, Clapp argued that defense counsel failed to properly investigate 

and obtain mental health treatment records and an updated mental health evaluation, prior to the 

disposition hearing. The State’s memorandum in support of its motion for summary dismissal 

asserted that Clapp’s claim “that his counsel was ineffective in not obtaining or investigating 

medical record[s] requested by [Clapp]” was disproven by the trial record. Further, the State 

articulated that Clapp agreed to use a prior mental health evaluation at the probation revocation 

hearing. The district court dismissed this claim after reviewing the underlying trial record, 

determining that “Clapp waived his right to an updated [pre-sentence investigation report] in 

open court after consultation with his attorney” and noting that “prior to [the disposition 

hearing], the Court had all the information Mr. Clapp felt was necessary to make the existing 

pre-sentence material complete.” 

On appeal, Clapp argues that the grounds asserted by the district court were different than 

those offered by the State for dismissing the portion of the claim relating to defense counsel’s 

alleged failure to obtain mental health treatment records.1

 The State argues that the district court 

dismissed the claim based on the reasoning asserted by the State below, namely that the trial 

record disproved the claim. 

 1 In his reply brief, Clapp concedes that “the trial court dismissed the portion of the claim 

dealing with failure to request an updated mental health evaluation on the same basis as argued 

by the [S]tate.” 
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Initially, we note that because there was one claim (asserting different theories or means 

of ineffective assistance), the district court’s dismissal of the claim based in part on the grounds 

asserted by the State satisfies the notice requirement. See Kelly v. State, 149 Idaho 517, 523, 236 

P.3d 1277, 1283 (2010). (“When a trial court summarily dismisses an application for postconviction relief based in part on the arguments presented by the State, this is sufficient to meet 

the notice requirements.”). Even so, the district court dismissed the portion of the claim 

concerning the alleged failure to obtain mental health treatment records after reviewing the trial 

record; it noted that Clapp had informed the trial court at the probation revocation hearing of his 

mental health treatment and progress in reducing his alcohol consumption, which the district 

court understood to be the “information these records would have conveyed.” Effectively, the 

district court adopted the State’s reasoning, although it expounded upon why the trial record 

disproved the allegation that defense counsel was ineffective in not obtaining Clapp’s mental 

health treatment records. Therefore, Clapp was provided the requisite notice.

B. Ineffective Assistance of Appellate Counsel

Clapp also contended in his amended petition that appellate counsel provided ineffective 

assistance. Specifically, Clapp averred that he “informed appellate counsel that he wished to 

challenge the court’s reliance upon [unreliable evidence]” and asserted that he “asked appellate 

counsel to challenge the sentence on due process grounds and for a challenge to the denial of his 

Rule 35 motion,” but that appellate counsel did not raise these issues on appeal. The State’s 

memorandum in support of its motion for summary dismissal argued that the claim was bare and 

conclusory without any showing of prejudice and without evidence to support the assertions. 

The district court dismissed the claim, assuming that Clapp requested appellate counsel to raise 

the issues, but finding that “no prejudice has been, or could be, shown as a result of these issues 

being forfeited.” 

On appeal, Clapp maintains that the district court dismissed the claim on grounds 

different from those asserted by the State. However, the district court’s order adopted the State’s 

argument concerning the lack of prejudice, although the district court expanded upon why 

prejudice had not been shown. For example, the district court explained that it found the alleged 

unreliable evidence credible and determined there was substantial evidence of the conduct at 

issue and asserted that it could rely on this evidence. Thus, the ineffective assistance of appellate 
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counsel claim was dismissed upon the grounds asserted by the State, and Clapp received the 

requisite notice.

Clapp also argues on appeal that the State was not entitled to judgment as a matter of law 

and that there was a genuine issue of material fact for his claim. As this Court explained in 

Mintun v. State, 144 Idaho 656, 661, 168 P.3d 40, 45 (Ct. App. 2007), a post-conviction 

petitioner’s ineffective assistance of appellate counsel claim is subject to the standard set forth in 

Strickland v. Washington, 466 U.S. 668, 687-88 (1984). That is, a petitioner must demonstrate

that appellate counsel provided deficient performance and show that he was prejudiced by the 

deficient performance. See Mintun, 144 Idaho at 661, 168 P.3d at 45. Where counsel files an 

appeal but fails to raise a particular issue, it is difficult to show deficient performance. Smith v. 

Robbins, 528 U.S. 259, 288 (2000). To overcome the presumption of competent performance, 

the petitioner must show that the “ignored issues are clearly stronger than those presented.” Id.

(quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)). In order to demonstrate prejudice, 

the petitioner must show that there is a reasonable probability that the outcome of the appeal 

would have been different had appellate counsel raised the issue. See Mitchell v. State, 132

Idaho 274, 277, 971 P.2d 727, 730 (1998).

Clapp asserts that appellate counsel provided ineffective assistance by not arguing that 

Clapp’s right to due process was violated when the trial court in the disposition hearing relied 

upon evidence that Clapp asserts is unreliable.2

 The alleged unreliable evidence particularly

identified by Clapp in his amended petition was a “claim that []he was ‘driving a lot’ as reported 

by his probation officer.” Based on the record, which includes a copy of the transcript of the 

disposition hearing, the trial court remarked that Clapp had been driving regularly, and this 

comment appears to have derived from a note in the probation officer’s sworn report of 

 2 Although Clapp asserted alternative theories of ineffective assistance of appellate counsel 

in the amended petition concerning counsel’s failure to challenge the sentence on due process 

grounds and failure to challenge the denial of his Rule 35 motion, on appeal he does not 

explicitly argue that the district court erred by dismissing these theories. Rather, Clapp’s 

arguments focus on the alleged unreliable evidence. Indeed, Clapp’s issue statement reads, “Did 

the district court err in dismissing Mr. Clapp’s fifth cause of action because the allegation that 

Mr. Clapp had been driving was not supported by sufficiently reliable evidence and thus should 

have been challenged on appeal.” 
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probation violation.3

 In that report, the probation officer remarked that Clapp had told her that 

he had been driving without a license “a lot,” which the probation officer understood to be a 

violation of Clapp’s probation. 

The State contends that Clapp has not shown that there is a Sixth Amendment right to 

counsel (and effective assistance) in a probation revocation proceeding.4 Alternatively, the State 

argues that Clapp did not demonstrate either deficient performance or prejudice, correctly noting 

that because there was no objection in the trial court, the issue concerning the alleged unreliable 

evidence could have been asserted on appeal only as a claim of fundamental error. See State v. 

Perry, 150 Idaho 209, 226, 245 P.3d 961, 978 (2010). Rather than address the State’s first 

argument, we assume for purposes of this opinion that counsel at probation revocation 

proceedings and on appeal must provide constitutionally effective assistance. Thus, we examine 

whether Clapp set forth a prima facie case of ineffective assistance. Like the district court, we 

 3 At the disposition hearing, the trial court expressed its concern with Clapp’s driving:

But the fact of the matter is that I have got to be concerned about more 

than just your rehabilitation. Every time you get intoxicated, and in terms of 

probation violations here, you didn’t make the CAP aftercare, and then driving in 

your father’s truck regularly. Now, it is only one small step to driving the truck 

regularly and driving the truck intoxicated. You weren’t supposed to be driving a 

vehicle. And you are putting not only yourself at risk when you do that, you are 

putting the public at risk as well.

(emphasis added). 

4 In Gagnon v. Scarpelli, 411 U.S. 778, 783 (1973), the United States Supreme Court 

addressed whether a probationer had a due process right to appointed counsel in probation 

revocation proceedings. The Court held that due process may require such an appointment on a 

case-by-case basis. See id. at 788-91. In State v. Young, 122 Idaho 278, 282, 833 P.2d 911, 915 

(1992), the Idaho Supreme Court explained that indigent probationers have the right to appointed 

counsel under an Idaho statute, but that there was a federal constitutional right to be represented 

by retained counsel at probation revocation proceedings). See also State v. Lindsay, 124 Idaho 

825, 828, 864 P.2d 663, 666 (Ct. App. 1993) (characterizing Young as finding a Sixth 

Amendment right to representation by retained counsel). To date, neither this Court nor the 

Idaho Supreme Court has addressed the specific argument advanced by the State concerning 

whether counsel in probation revocation proceedings are bound to provide constitutionally 

effective assistance; therefore, we leave that issue for another day. 
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turn to the prejudice prong. See Ridgley v. State, 148 Idaho 671, 676, 227 P.3d 925, 930 (2010)

(addressing the prejudice prong without considering whether counsel was deficient).5

 

Here, based on the trial court’s apparent reference to the probation officer’s report, the 

report is an out-of-court statement utilized for truth of the matter asserted in the report and is 

hearsay, Idaho Rule of Evidence 801(c), even though Clapp’s statement inside the report is not 

hearsay, I.R.E. 801(d)(2). Although the rules of evidence do not apply in probation revocation 

proceedings, I.R.E. 101(e)(3), due process guarantees apply in probation revocation proceedings, 

Gagnon v. Scarpelli, 411 U.S. 778, 783 (1973). Therefore, even though a court may consider 

hearsay evidence in probation revocation proceedings, due process requires hearsay evidence to 

be reliable. See, e.g., United States v. Hall, 419 F.3d 980, 987-88 (9th Cir. 2005) (considering 

the reliability of hearsay evidence at a probation revocation hearing); United States v. Walker, 

117 F.3d 417, 420 (9th Cir. 1997) (noting that reliable hearsay was admissible in revocation 

proceedings, whether revocation of probation or supervised release); cf. State v. Reid, 151 Idaho 

80, 89-90, 253 P.3d 754, 763-64 (Ct. App. 2011) (discussing due process requirements for 

hearsay considered at sentencing and remarking on the reliability of the evidence).

Had appellate counsel challenged the trial court’s apparent reference to the probation 

officer’s report and Clapp’s statement in the report, an appellate court would likely conclude that 

the report satisfied the minimal indicia of reliability and that the trial court’s reference to the 

report was not fundamental error. This is because the probation officer’s report containing her 

note about what Clapp told her was sworn by her to be true. Thus, there is not a reasonable 

probability that the outcome of the appeal would have been different. Accordingly, Clapp did 

not demonstrate prejudice, and his claim was subject to summary dismissal. See DeRushé, 146 

Idaho at 603, 200 P.3d at 1152 (2009) (explaining that a claim will be subject to summary 

dismissal if the petitioner did not establish a prima facie case for each element). 

 5 Although we do not rely upon this basis in affirming the dismissal of the ineffective 

assistance of appellate counsel claim, the State could have moved the district court to summarily 

dismiss the claim on another basis. In Mintun v. State, 144 Idaho 656, 662, 168 P.3d 40, 46 (Ct. 

App. 2007), this Court affirmed the summary dismissal of a claim asserting ineffective assistance 

of appellate counsel for failing to raise an issue of fundamental error. This Court explained that 

such an issue should be raised as ineffective assistance of defense counsel, and that the failure to 

raise an issue of fundamental error on appeal was not a basis for ineffective assistance of 

appellate counsel. Id.
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III.

CONCLUSION

The district court relied upon the grounds asserted by the State’s motion for summary 

dismissal, at least in part, in dismissing the ineffective assistance of defense counsel claim. The 

ineffective assistance of appellate counsel claim was dismissed based upon the grounds asserted 

by the State’s motion. Accordingly, Clapp received the requisite notice prior to the dismissal of 

the claims. Finally, the district court did not err by dismissing the ineffective assistance of 

appellate counsel claim relating to the failure to raise an issue of fundamental error, because 

Clapp did not demonstrate prejudice. Thus, we affirm the judgment of the district court 

summarily dismissing Clapp’s amended petition for post-conviction relief.

Chief Judge MELANSON and Judge LANSING CONCUR.