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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 44529

LESTER LAURAL JONES,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2017 Unpublished Opinion No. 523

Filed: July 18, 2017

Karel A. Lehrman, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Seventh Judicial District, State of Idaho, 

Madison County. Hon. Gregory W. Moeller, District Judge. 

Order denying petition for post-conviction relief, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Erik R. Lehtinen, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney 

General, Boise, for respondent. 

________________________________________________

HUSKEY, Judge

Lester Laural Jones appeals from the district court’s denial of Jones’s petition for postconviction relief. Jones argues the district court erred when it failed to make factual and legal 

findings regarding two claims. A district court is required to make findings when it conducts an 

evidentiary hearing and thereafter, denies a petition for post-conviction relief. However, because 

the failure to make findings did not affect Jones’s substantial rights and the record yields an 

obvious answer to the relevant issues, we affirm the district court’s denied of the petition. 

I.

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Jones with statutory rape. Idaho Code § 18-6101(1). The State also 

sought to enhance Jones’s sentence because Jones was a persistent violator. The district court 

appointed counsel to represent Jones but Jones retained substitute counsel before entering a plea. 

Jones pled guilty to statutory rape and the State dismissed the sentence enhancement. Jones was 
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sentenced to a unified term of thirty years, with a minimum period of confinement of ten years. 

Jones sought reduction of his sentence in an Idaho Criminal Rule 35 motion and on direct appeal. 

The district court denied Jones’s Rule 35 motion, and in an unpublished opinion this Court 

affirmed Jones’s judgment of conviction. Jones filed a petition for post-conviction relief alleging 

ineffective assistance of counsel in deciding whether to plead guilty and also at sentencing.

Jones claimed that he was denied his right to effective assistance of both appointed and 

substitute counsel in: (1) deciding whether to enter a guilty plea or take the case to trial; and 

(2) at sentencing. The State filed a motion for summary dismissal of Jones’s claims. The district 

court summarily dismissed Jones’s claims relating to appointed counsel and set an evidentiary 

hearing on the claims relating to substitute counsel.1

 Following the hearing, the district court 

denied Jones’s remaining claims. Jones appeals.

II.

STANDARD OF REVIEW

A petition for post-conviction 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 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 

 1 The district court reasoned that Jones’s claims relating to appointed counsel were moot 

because Jones retained substitute counsel before entering a plea and substitute counsel could 

have cured any of the alleged deficiencies in appointed counsel’s performance. On appeal, Jones 

does not challenge the summary dismissal of his claims relating to appointed counsel. Generally, 

issues not raised below may not be considered for the first time on appeal. State v. Fodge, 121 

Idaho 192, 195, 824 P.2d 123, 126 (1992). Therefore, our review is confined to the denial of 

Jones’s claims relating to substitute counsel.
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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). 

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, 118 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 court’s factual findings unless they are 

clearly erroneous. I.R.C.P. 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 

witnesses, 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, 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.

III.

ANALYSIS

On appeal, Jones argues that the district court erred in denied Jones’s ineffective 

assistance of counsel claim. Specifically, Jones asserts that the district court failed to make the 

requisite findings of fact and conclusions of law before denying the claims pertaining to the 

alleged failure to obtain a private psychosexual evaluation and the Rule 35 appeal. When a court 

conducts an evidentiary hearing in a post-conviction proceeding, the district court is required to 

make specific findings of fact and expressly state its conclusions of law, relating to each issue 

presented. I.C. § 19-4907(a). However, this Court will generally not address issues that are 

raised for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 

(1992). Jones failed to raise to the district court the issue of allegedly deficient factual findings 

and legal conclusions. Thus, Jones waived any claim that the district court failed to make 

findings.

Alternatively, the district court’s failure to make specific findings of fact and conclusions 

of law regarding Jones’s claims pertaining to the failure to obtain a private psychosexual 

evaluation or failing to appeal from the denial of the Rule 35 motion is not reversible if it did not 

affect Jones’s substantial rights and the record yields an obvious answer to the relevant issues. 
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When denying a petition for post-conviction relief, the district court is required to make specific 

findings of fact and conclusions of law relating to each issue presented. I.C. § 19-4907(a). The 

purpose behind the requirement in I.C. § 19-4907(a) is to provide an adequate record for 

appellate review. Maxfield v. State, 108 Idaho 493, 497, 700 P.2d 115, 119 (Ct. App. 1985). 

This Court has therefore held that under I.C. § 19-4907(a), an appellate court may disregard the 

absence of findings and conclusions only where the record yields a clear and obvious answer to 

the relevant questions. Id. Likewise, the Idaho Supreme Court has found that a district court’s 

procedural error was not reversible because the error did not affect the petitioner’s substantial 

rights. Melton v. State, 148 Idaho 339, 341-42, 223 P.3d 281, 283-84 (2009). 

To succeed on an ineffective assistance of counsel claim, Jones must show that: 

(1) substitute counsel’s performance was deficient; and (2) the deficient performance prejudiced

Jones. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Here, the record yields an 

obvious answer to the question of whether trial counsel rendered deficient performance when he 

failed to obtain a private psychosexual evaluation. At the evidentiary hearing, Jones testified that 

he told substitute counsel that Jones had a conflict with the court-appointed psychosexual 

evaluator and asked substitute counsel to request a specific private psychosexual evaluator with 

the district court providing funding for the evaluation. Substitute counsel testified that he did not 

recall which specific psychosexual evaluator Jones requested but that they agreed to use the 

court-appointed psychosexual evaluator which is why substitute counsel did not request the 

private evaluator. Assuming arguendo that substitute counsel’s failure to request the private 

psychosexual evaluator was deficient, Jones cannot show prejudice. Jones admitted to the sexual 

contact, admitted knowing the victim’s age, and a paternity test confirmed that Jones was the 

biological father of the victim’s child--those facts would not have changed had a private 

evaluation been obtained. Moreover, Jones has not established what conflict he had with the 

court-appointed evaluator, how that alleged conflict affected the outcome of the psychosexual 

evaluation, or that a different psychosexual evaluation would have changed the results of the 

evaluation. Thus, Jones has not established any prejudice when his counsel did not request the 

private evaluator instead of the court-appointed evaluator. Because Jones cannot establish 

prejudice, he has not demonstrated his substantial rights were affected and therefore, the lack of 

findings on this issue is not reversible error. 
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As to the second claim, the failure to pursue the Rule 35 appeal did not constitute 

ineffective assistance of counsel. Where the defendant has not conveyed his or her intent with 

respect to an appeal either way, the court must first determine whether trial counsel consulted 

with the defendant about an appeal. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). In this 

context, the term “consult” means advising the defendant about the advantages and 

disadvantages of taking an appeal and making a reasonable effort to discover the defendant’s 

wishes. Id. at 478. If counsel has consulted with the defendant, then counsel performs in a 

professionally unreasonable manner only by failing to follow the defendant’s express 

instructions with regard to an appeal. Id. On the other hand, an attorney who disregards specific 

instructions from a defendant to file a notice of appeal acts in a manner that is professionally 

unreasonable. See Beasley v. State, 126 Idaho 356, 360, 883 P.2d 714, 718 (Ct. App. 1994). 

Where counsel refuses a defendant’s request to appeal, prejudice is presumed. Id. at 359, 883 

P.2d at 717.

The record in this case is clear that Jones had the opportunity to appeal the denial of his 

Rule 35 motion. Appellate counsel specifically addressed the Rule 35 issue in the direct appeal. 

As noted in the appellant’s brief in State v. Jones, Docket No. 40863, counsel states: 

Mr. Jones also filed a motion for leniency under I.C.R. 35. (R., pp.46-47.) On 

appeal, Mr. Jones does not challenge the denial of his Rule 35 motion, as there 

was no new information presented in conjunction with his Rule 35 motion. (R., 

pp.46-47.) The Idaho Supreme Court has held that “[w]hen presenting a Rule 35 

motion, the defendant must show that the sentence is excessive in light of new or 

additional information subsequently provided to the district court in support of the 

Rule 35 motion.[”] State v. Huffman, 144 Idaho 201, 203 (2007). “An appeal 

from the denial of a Rule 35 motion cannot be used as a vehicle to review the 

underlying sentence absent the presentation of new information.[”] Id.

State v. Jones, Docket No. 40863, 2-3 n.1. Because the denial of Jones’s Rule 35 motion was 

addressed in the Jones’s direct appeal, there was no need to file a separate notice of appeal. 

Accordingly, the record yields a clear and obvious determination that Jones failed to establish 

deficient performance and consequently, a claim of ineffective assistance of counsel claim.
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IV.

CONCLUSION

The failure of the district court to make findings and state conclusions on every claim 

raised by Jones does not require reversal. The district court’s determination that Jones failed to 

establish an ineffective assistance of counsel claim on either the failure to obtain a private 

psychosexual evaluation or the failure to file an appeal from the denial of the Rule 35 motion is 

supported by the record and does not affect Jones’s substantial rights. Accordingly, Jones failed 

to show that the district court erred in denying Jones’s petition for post-conviction relief.

Judge GUTIERREZ and Judge MELANSON CONCUR.