1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 36396

MICHAEL DAVID MURPHY , Petitioner-Appellant ,

v.

STATE OF IDAHO , Respondent

. ) ) ) ) ) ) ) ) ) ) 2010 Unpublished O pinion No. 556

Filed: July 22, 2010
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THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY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, S tate of Idaho, Ada County. Hon. Darla S. Williamson , District Judge.

Order summarily dismissing application for post

- conviction relief, affirmed

. Michael David Murphy, Boise, f or appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen , Deputy Attorney General, Boise, for respondent.

______________________________________________ MELANSON, Judge
Michael D avid Murphy appeals from the district court’s order summarily dismissing his
successive application for post

- conviction relief. For the reasons set forth below, we affirm. Murphy pled guilty to three counts of rape and one count of robbery and was sentenc ed in
1992

. In exchange for his guilty plea, additional charges were dismissed. Pursuant to his binding plea agreement, Murphy waived the right to appeal. However, Murphy did file an appeal , which the Idaho Supreme Court dismissed

. State v. Murphy
, 12 5 Idaho 456, 872 P.2d 719 (1994)

. Murphy filed an application for post

- conviction relief, which the district court
denied in 19 9 7

. In 2008, Murphy filed a successive application for post

- conviction relief, alleging various
claims of error

. The district court granted Murphy’s request for the appointment of counsel
, and the state filed a motion to summarily dismiss the successive application as untimely. Murphy2

argued , among other things, that Estrada 1 announced a new rule that should be applied
retroacti vely in his case making his application timely. The district court granted the state’s motion for summary dismissal of Murphy’s application without addressing the issue of
timeliness. Murphy appeals. Our review of the district court’s construction and ap plication of the limitation statute is a
matter of free review. Freeman v. State , 122 Idaho 627, 628, 836 P.2d 1088, 1089 (Ct. App. 1992). The statute of limitation for post

- conviction actions provides that an application for post

conviction relief may b e filed at any time within one year from the expiration of the time for appeal or from the determination of appeal or from the determination of a proceeding following an appeal, whichever is later. I.C. § 19

- 4902(a). The appeal referenced in that section means the appeal in the underlying criminal case. Freeman , 122 Idaho at 628, 836 P.2d at 1089. The failure to file a timely application is a basis for dismissal of the application. Sayas v. State , 139 Idaho 957, 959, 88 P.3d 776, 778 (Ct. App. 2003)

. In this case, Murphy filed his successive application for post

- conviction relief over fifteen years after his judgment of conviction became final. Therefore, his application is clearly untimely. The state may waive the issue of timeliness when it fails to raise the bar as an
affirmative defense. See Kirkland v. State , 143 Idaho 544, 546, 149 P.3d 819, 821 (2006) (holding that the statute of limitations for post

- conviction relief is not jurisdictional, but an affirmative defense that is waived if not ple aded by the defendant). However, in this case the state raised the issue of timeliness through its motion to summarily dismiss Murphy’s application. Therefore, the issue was not waived. An appellate court may affirm a lower court’s decision on a legal t heory different from the one applied by that court. Matter of Estate of Bagley , 117 Idaho 1091, 1093, 793 P.2d 1263, 1265 (Ct. App. 1990). Because Murphy’s successive application was clearly untimely, we affirm the district court’s order on this
alternat ive basis. Murphy argues that his application should be deemed timely because the Idaho Supreme
Court announced a new rule of law in Estrada that should be applied retroactively. T he Idaho Supreme Court has said , by way of dicta, that Estrada did not anno unce a new rule of law to be given retroactive application. See Vavold v. State , 148 Idaho 44, 46, 218 P.3d 388, 390 (2009).

1 Estrada v. State , 143 Idaho 558, 149 P.3d 833 (2006).3

T his Court has held that Estrada did not announce a new rule of law to be given retroactive application. See Kriebel v. State , 1 48 Idaho 188, 191, 219 P.3d 1204, 1207 (Ct. App. 2009). Nonetheless, Murphy argues that Estrada should be applied retroactively in his case. However, this Court’s holding in Kriebel is controlling precedent in the absence of any Idaho Supreme
Court holdi ng to the contrary. Accordingly, the district court’s order summarily dismissing Murphy’s application for post

- conviction relief is affirmed. No costs or attorney fees are awarded on appeal. Judge GUTIERREZ, CONCURS. Chief Judge LANSING, CONCUR S IN THE RESULT.