1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 47576

PETER FRANKLIN GOULLETTE ,
Petitioner

- Appellant ,

v.

STATE OF IDAHO , Respondent

. ) ) ) ) ) ) ) ) ) ) Filed: March 3, 2021
Melanie Gagnepain, 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THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY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, Bonner County. Hon. Barbara A. Buchanan , District Judge.
Judgment of the district court summarily dismissing petition for post

- conviction relief
, affirmed in part
, vacated in part , and case remanded

. Eric D. Fredericksen, State Appellate Public Defender; Andrea W. Reynolds
, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson , Deputy Attorney General, Boise, for respondent.

________________________________________________ GRATTON, Judge Peter Franklin Goullette appeals from the district court’s judgment summarily dismissing his petition for post

- conviction relief. Goullette argues that the district court erred by summarily dismissing Goullette’s claim that he received ineffective assistance of counsel b ased on his trial counsel’s failure to file a direct appeal upon request. For th e reasons set forth below, we affirm the district court’s judgment dismissing Goullette’s petition for post

- conviction relief on a ll claims except the failure to file a direct appeal claim . With respect to this claim, we vacate and remand
the case to the district court.2 I.
FACTUAL AND PROCEDURAL BACKGROUND In 2018, Goullet t e entered an Alford 1 plea to felony vehicular manslaughter , Idaho Code § 18

- 4006(3) , and misdemeanor reckless driving
, I.C. § 49

- 1401 (1)

. Goullette was sentenced to ten years determinate and his trial counsel did not file a direct appeal or an Idaho Criminal Rule 35

m otion to correct or reduce Goullette’s sentence. In March 2019, Goullette filed a n untimely pro

se I

. C

. R

. 35 motion
, which the district court denied. In June 2019, Goullette filed a pro se petition for post

- conviction relief raising various
claims of ine ffective assistance of trial counsel. As pertinent to this appeal, Goullette all eged that his trial counsel provided ineffective assistance because counsel failed to file a direct appeal, although Goullette requested that he do so

. 2 Ther e after, Goullette filed a motion for appointment of counsel and the district court granted Goullette’s motion. Appointed counsel did not file an amended petition . Subsequently, t he State filed a motion to summarily dismiss Goullette’s petition arguing that Goullette forf eited his opportunity to seek post

- conviction relief because he never sought appellate review of the matters in his petition and the petition “ fail[ed] to allege sufficient grounds to determine ineffective assistance [ of ] counsel.” After a hearing, the di strict court granted the State’s motion for summ ary dismissal concluding that Goullette failed to allege sufficient facts
to demonstrate Strickland 3 deficient performance or prejudice. Goullette timely appeals.
II.
STANDARD OF REVIEW A petition for post

- c onviction relief initiates a proceeding that is civil in nature. I.C. § 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 Idah o 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

1 North Carolina v. Alford
, 400 U.S. 25 (1970).

2 Goullette does not challenge the district court’s judgment dismissing his other claims in his petition for post

- conviction relief and we, therefore, affirm the judgment as to those claims.

3 Strickland v. Washington
, 466 U.S. 668 (1984)

.3

Idaho 50, 56, 106 P.3d 376, 382 (2004). A petition must contain much more than a short and pla in statement of the claim that would suffice for a complaint under Idaho Rule of Civil Procedure 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 e vidence 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 § 19

- 4906 authorizes summary dismissal of a petition for post

- conviction relief, either pu rsuant 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 ma terial 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 mer e 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).
Moreove r, 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 uncontrovert ed 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.
III.
ANALYSIS Goullette argues that the district court erred by summarily dismissing his post

- conviction claim that his trial counsel was ineffective for failing to file a direct appeal upon request

. A claim of ineffective assistance of counsel may properly be brought under the Uniform
Post

- Conviction P rocedure 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 prejudice d by the deficiency. Strickland v. Washington , 466 U.S. 668, 687

- 88 (1984); Self v. State , 145 Idaho 578,4

580, 181 P.3d 504, 506 (Ct. App. 2007). Generally, an attorney who disregards timely specific instructions from a defendant to file a notice of appe al acts in a manner that is professionally
unreasonable. See Beasley v. State , 126 Idaho 356, 360, 883 P.2d 714, 718 (Ct. App. 1994).
P rejudice is presumed “ when counsel’ s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken.” Roe v. Flores

- Ortega , 528 U.S. 470,
484 (2000)

. Here, t he district court di smissed Goullette’s claim
, concluding : (1) with respect to the
Strickland deficiency prong
, counsel’s decision not to file a notice of appeal “c an be considered strategic and tactical” ; and (2) with respect to the Strickland prejudice prong
, Goullette “p resented no evidence that raise[d] a triable issue as to whether but for his counsel’s errors, he would not have pled guilty and would have insist ed on going to trial.” On appeal, Goullette contends that he alleged facts which, if true, would entitle him to
relief as a matter of law. Specifically, Goullet te argues that : [He] submitted an affidavit to the district court in support o f his petition for post

conviction relief in w hich he stated, “I asked my attorney to file both an appeal and Rule 35 and he failed to do so on my behalf.” The district court granted the State’s motion for summary dismissal, reasoning that the decision as to wh ether to file an appeal upon request is considered strategic o r tactical, and cannot serve as a basis for po st

- conviction relief. This is incorrect as a matter of law

. . . . Because Mr. Goullette’s petition and the accompanying affidavit allege facts th at, if true, would entitle him to relief, his petition should not have been summarily dismissed. In response, the State concedes that the basis of the trial court’s decision was erro r. Nonetheless
, the State argues that this Court can affirm the distri ct court’s summary dismissal using the “ right result wrong reason ” theory. According to the State, this Court can affirm the
district court because Goullette failed to allege sufficient facts demonstrating that he is entitled to
relief because Goullett e “ did not assert when he allegedly instructed his trial counsel to file a notice of appeal, and specifically, whether he made such a request w ithin 42 days of the entry of the judgment of conviction as required by I[daho] A[ppellate] R[ule] 14(a).” 4 In rep l y, Goullette argues that this C ourt cannot affirm the lower court using the “ right result wrong theory ” approach in this case because the argument presented by the State on appeal was not raised by the State or decided by the court below. We agree with Goullette.

4 In addition, the State argues that even if Goullette alleged this fact, the record demonstrates that Goullette did not make a timely request to his counsel to file an appeal.5

We conclude, as the parties agree, that the district court erred by summarily dismissing Goullette’ s petition based on its flawed reasoning that trial counsel’s failure to file an appeal upon request was strategic and tactical. An attorney’s fa ilure to file an appeal upon request cannot be considered strategic and tactical. See Beasley
, 126 Idaho at 360, 883 P.2d at 718. Although the State asks this Court to affirm the district court using the “right result wrong reason ” theory, it
does so bas ed on an argument not raised to or decided by the district court below. The State did not argue, in writing or at the hearing on its motion, that Goullette did not sufficiently allege that he made a timely request of his trial counsel to file an appeal. The timeliness of Goullette’s request to counsel was not an issue even discussed below. Thus, w e will not affirm the lower court based on a theory not presented or ruled upon. See
, e.g. , State v. Hoskins , 165 Idaho 217, 223

- 24 , 443 P.3d 231, 237

- 38 (2019 ). Accordingly, we conclude that the district court erred by summarily dismissing Goullette’s post

- conviction claim that counsel was ineffective for failing to file a direct appeal upon Goullette’s request

. IV.
CONCLUSION The district court erred by summarily dismissing Goullette’s petition for post

- conviction relief on the grounds that trial counsel was ineffective for failing to file an appeal upon request. Accordingly, we affirm the district court’s judgment summarily dismissing Goullette’s petitio n for post

- conviction relief as to all claims except the failure to file an appeal claim . As to that claim,

we vacate and remand the case to the district court for further consideration consistent with this opinion. Chief Judge HUSKEY and Judge LORELLO C ONCUR

.