1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 41952

MICHAEL T. HAYES ,
Petitioner

- Appellant ,

v.

STATE OF IDAHO , Respondent

. ) ) ) ) ) ) ) ) ) ) 2015 Unpublished Opinion No. 634

Filed: September 16, 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THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY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. Deborah A. Bail , District Judge.

Order denying petition for post

- conviction relief, affirmed

. Michael T. Hayes, Boise, pro se appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello , Deputy Attorney General, Boise, for respondent.

________________________________________________ GRATTON, Judge Michael T. Hayes appeals from the district court’s order denying his petition for post

conviction relief

. We affirm.
I.

FACTUAL AND PROCEDURAL BACKGROUND
In 2003, Hayes ple d guilty to a misdemeanor driving under the influence (DUI) offense,
Idaho Code § 18

- 8004(1)(a)
, which the State charged as a “ f irst o ffense DUI

. ” In 2004, Hayes ple d guilty to another misdemeanor DUI offense, I.C. § 18

- 8004(1)(a)
, which the State again charged as a “first offense DUI

. ” With both the 2003 and 2004 convictions, Hayes received
notification forms notifying him that
, pursuant to I.C. § 18

- 8005, the State would charge a third
DUI offense within five years as a felony

. In 2006, the Idaho legislature amended I.C. § 18

- 8005

to make a third DUI conviction with in ten years a felony. In 2011, the State charged Hayes with yet another DUI offense under I.C. § 18

- 8004(1)(a)

. Because Hayes’ two earlier DUI2

convictions occurred within ten years of his 2011 DUI , the State charged his 2011 DUI as a felony under the amended version of I.C. § 18

- 8005

. Before pleading guilty, Hayes discussed with counsel possible legal arguments that might get his 2011 DUI charge dismissed

. C ounsel told Hayes he did not believe those arguments
would result in a dismissal and suggested that Hayes take the State’s plea bargain. Hayes was faced with two possibilities: He could plead guilty to the felony DUI charge and receive a maximum ten

- year sente nce ; or he could proceed to trial where the prosecutor would pursue the felony DUI charge with a persistent violator enhancement , which c arries a possible life time

sentence. Hayes pled guilty and stated to the court his guilty plea was freely and voluntar ily given. Hayes petitioned for post

- conviction relief alleging his counsel was ineffective in various

ways

. After an evidentiary hearing, t he court denied Hayes’ petition

. Hayes timely appeals.
II.
ANALYSIS Hayes asserts the district court erred in denying his petition for post

- conviction relief

. 1 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 47 6, 482 (2008). See also Pizzuto v. State , 146 Idaho 720, 724, 202 P.3d 642, 646 (2008). In order to prevail in a post

- conviction proceeding, the petitioner must prove the allegations by a preponderance of the evidence. I.C. § 19

- 4907; Stuart v. State , 1 18 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); Baxter v. State , 149 Idaho 859, 861, 243 P.3d 675, 677 (Ct. App. 2010). When reviewing a decision denying post

- conviction relief after an evidentiary hearing, an appellate court will not disturb the lower cou rt’s factual findings unless they are clearly erroneous. Idaho Rule of Civil Procedure 52(a); Dunlap v. State , 141 Idaho 50, 56, 106 P.3d 376, 382 (2004); Russell v. State , 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of the witne sses, the weight to be given to their testimony, and the inferences to be drawn from the evidence are all matters solely within the province of the district court. Dunlap , 141 Idaho at 56, 106 P.3d at 382; Larkin v. State , 115 Idaho 72, 73, 764 P.2d 439,

1 Hayes also asserts : (1) the St ate violated his equal protection and due process rights; (2) his counsel failed to file a Rule 35 motion; and (3) prosecutorial misconduct. These claims either were not raised below or do not have any legal or factual support and will not be addressed on appeal.3

440 (Ct. App. 1988). We exercise free review of the district court’s application of the relevant
law to the facts. Baxter , 149 Idaho at 862, 243 P.3d at 678. Hayes asserts his counsel in the underlying case was ineffective in various ways. A claim
of in effective 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 mu st 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 de ficiency, 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). Hayes fir st argues that his counsel coerced his guilty plea, making it involuntary. At his plea hearing, Hayes stated that his guilty plea was freely and voluntarily given. However, Hayes asserts his counsel coerced his plea by dismissing arguments he wished to a ssert at trial and telling him he could get a persistent violator enhancement and life sentence if he did not take the State’s plea bar gain. The district court found:

There is no persuasive evidence that the petitioner ’ s ple a was in any way coerced. Whil e he was unhappy that he faced the potential longer sentence resulting from the possibility of a persistent violator enhancement, his unhappiness does not amount to coer cion. . . . His attorney gave him correct legal advice when he told the petitioner tha t he did not have a legal defense to the DUI. The petitioner testified that he did not have a factual defense to the DUI. The petitioner failed to prove that his plea was in any fashion coerced or that he received anything other than correct legal advice

.4

We agree. As explained below, Hayes’ arguments would have failed in the district court. His counsel correctly advised him of this fact. Further, the United States Supreme Court has long held a plea is not coerced because it is motivated by the defend ant’s desire to accept the certainty of a “ lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged. ” Brady v.
United States , 397 U.S. 742, 751 (1970 ) . Thus, the district court correctly held that Hayes’ plea was voluntary. Hayes next argues his counsel failed to move to dismiss his felony DUI

. In a post

conviction proceeding challenging an attorney’s failure to pursue a motion in the underlying
crim inal action, the district court may consider the probability of success of the motion in question in determining whether the attorney’s inactivity constituted ineffective assistance. Lint
v. State , 145 Idaho 472, 477, 180 P.3d 511, 516 (Ct. App. 2008). Where the alleged deficiency is counsel’s failure to file a motion, a conclusion that the motion, if pursued, would not have been granted by the trial court, is generally determinative of both prong s of the Strickland test. Id.

at 477

- 78, 180 P.3d at 516

- 17. Hayes advances two theories his counsel could have used to support a motion to dismiss his felony DUI

. His first theory is that the State entered a binding contract with him by charging
his 20 03 and 2004 DUI s as “ f irst o ffense DUI s

. ” He asserts the State breached this contract when it charged his 2011 DUI as a felony

. Because the State never charged him with a “ s econd

o ffense DUI ,” he a sserts the State could not charge his third DUI as a felo ny under I.C. § 18

- 8005. This argument fails under the plain language of I.C. § 18

- 8005. Subsection six states: [A]ny person who pleads guilty to or is found guilty of a violation of the provision s of section 18

- 8004(1)(a), (b) or (c), Idaho Code, who previously has been found guilty of or has pled guilty to two (2) or more violations of the provisions of section 18

- 8004(1)(a), (b), or (c)
, Idaho Code . . . within ten (10) years, notwithstanding the form of th e judgment(s) or withheld judgment(s), shall be guilty of a felony

. . . . I.C. § 18

- 8005 (6).
Both of Hayes’ 2003 and 2004 convictions were for violations of I.C. § 18

- 8004(1)(a)
, regardless of whet her the State charged them as “ f irst o ffense DUIs.” These convictions were within ten years of his 2011 charge for violating I.C. § 18

- 8004(1)(a)

. Hayes never disputed that
he violated I.C. § 18

- 8004(1)(a) for any of his charges

. Thus, the plain language of I.C. § 18

- 8005(6) authorized the State to charge Hayes’ 2011 DUI as a felony

. Further, this Court and the5

Idaho Supreme Court have held that if a defendant is found guilt y of three or more DUI offenses within the requisite time period under I.C. § 18

- 8005(6) , the defendant has committed a felony

. Stat e v. Craig , 117 Idaho 983, 985, 793 P.2d 215, 217 (1990) ; State v. Locke , 149 Idaho 641, 643, 239 P.3d 34, 36 (Ct. App. 2010)

. This is true regardless of how the State characterizes prior DUI charges. Thus , a motion by Hayes’ counsel asserting Hayes’ fir st theory would have failed. Hayes’ second theory is that the notification forms he received with his 2003 and 2004
convictions formed a binding contract, which the State breached when it charged his 2011 DUI as a felony under I.C. § 18

- 8005. These forms notified Hayes that the State would charge a third
DUI conviction in five years as a fe lony under I.C. § 18

- 8005

. However, in 2006 the Idaho legislature amended I.C. § 18

- 8005 to make a third DUI conviction in ten years a felony. Hayes
asserts the forms bound the State and the amendment did not apply to him

. Thus, according to Hayes, the State could not charge his 2011 DUI as a felony because he received his 2011 DUI more than five years after his 2003 and 2004 conviction s. Hayes second theory is also wi thout merit. This Court addressed a similar argument in
State v. Lamb , 147 Idaho 133, 206 P.3d 497 (Ct. App. 2009)

. With his prior DUI convictions,
the defendant in Lamb received notices that the State would charge a third DUI conviction in five

years as a felony. Id. at 136, 206 P.3d at 50 0

. The defendant argued those notices were part of his plea agreements , which the State breached by charging his third DUI as a felony under the amended version of I.C. § 18

- 8005 (6) more than five years after his first DUI

. Id. This Court rejected that argument, stating:

T he 2006 amendment to I.C. § 18

- 8005 [(6)] placed [the defendant] on notice that the DUI enhancement law was no longer as had been described to him upon his earlier convictions. The notion that the tria l courts’ warnings given in his prior DUI cases somehow became part of [the defendant’ s ] plea agreeme nts is frivolous. A trial court’ s advisement of the risk of future penalties under a recidivist statute is a warning designed to deter the defenda nt from committing future offenses, not a promise that puts restraints on future prosecutions. It certainly does not constitute a promise that the law will, with respect to the defendant, never change.
Lamb , 147 Idaho at 137, 206 P.3d at 501 (internal citations omitted)

. The same reasoning applies to Hayes’ second theory. The notification forms he received with his prior DUI c onvictions were not binding contract s , part of his plea agreements, or promise s that the law, with respect to him , wo uld not change. Rather, the forms were warning s meant to deter Hayes from reoffending. The 2006 amendment to I.C. § 18

- 8005 (6) put Hayes on6

notice that the law had changed. Thus, Hayes’ theory that the notification forms were binding

upon the State is f

rivolous
, and a motion by Hayes’ counsel asserting that theory would have
failed.
Because the district court would not have granted a motion under either of Hayes’
theories
, Hayes ’ claim that counsel should have moved for dismiss al of his felony DUI fails both prongs of the Strickland test

. Finally, Hayes argues his counsel failed to move to dismiss his prior DUI convictions. Hayes’ asserts the forms he received with his 2003 and 2004 DUI convictions were promises that induced his prior guilty pleas. Acco rding to Hayes, the State failed to honor those promises when it charged his third DUI as a felony. As discussed above, the forms were not promises, contracts, or part of Hayes’ plea agreements. Thus, the forms did not create any basis for Hayes to rely o n in making his prior guilty pleas. Further
, regardless of whether the forms were promises, the Idaho Supreme Court
held in State v. Weber , 140 Idaho 89, 92, 90 P.3d 314, 317 (2004) that a defendant has no right to

c ollaterally attack the validity of prio r DUI convictions used to support a charge of felony DUI
, unless the prior convictions were obtained in violation of the defendant’s right to counsel

. B ecause Hayes’ prior DUI convictions were not obtained in violation of his right to counsel , he cannot collaterally attack their validity in this proceeding. Thus
, the district court would not have granted a motion collaterally attacking the validity of Hayes’ prior DUI convictions
, and his
claim that counsel should have move d for dismiss al of his prior DUI convictions fails both prongs of the Strickland test

. 2

III.
CONCLUSION Hayes’ plea was not coerced and his counsel was not ineffective for failing to seek dismissal of his felony DUI charge and prior DUI convictions. The district court’s o rder denying post

- conviction relief is affirmed. No costs or attorney fees are awarded on appeal. Judge GUTIERREZ and Judge HUSKEY CONCUR

.

2 Hayes requests $3,500 in attorn ey fees for paralegal services on appeal. Because Hayes is not the prevailing party, we decline to award costs or attorney fees

. See I.C. § 12

- 121; Idaho Appellate Rule 41; Rendon v. Paskett , 126 Idaho 944, 945, 894 P.2d 775, 776 (Ct. App. 1995).