1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 45034

THOMAS FERNANDEZ ,
Petitioner

- Appellant ,

v.

STATE OF IDAHO , Respondent

. ) ) ) ) ) ) ) ) ) ) Filed: July 13, 2018
Karel A. Lehrman, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Jerome County. Hon. John K. Butler , District Judge.
Order denying motion for appointment of counsel, affirmed ; j udgment dismissing petition for post

- conviction relief
, affirmed

. Eric D. Fredericksen, State Appellate Public Defender; Reed P. Anderson , Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer , Deputy Attorney General, Boise, for respondent.

________________________________________________ HUSKEY, Judge Thomas Fernandez appeals from the district court’s judgment and order dismissing Fernandez’s petition for post

- conviction relief

. Fernandez argues the district court abused its discretion by applying an incorrect legal standard when den y ing his motion for appointment of

po st

- conviction counsel. The district court’s denial of Fernandez’s motion for appointment of
counsel is affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND This Court previously stated the underlying facts of Fernandez’s case as follows: Fernandez was stopped for failing to obey a stop sign. The officer noticed that Fernandez appeared nervous, had bloodshot and watery eyes, mumbled while he spoke, and smelled of alcohol. When asked, Fernandez stated that he consumed alcohol the night bef ore. Initially, Fernandez did not want to take the2 breath test because he thought he may blow over the legal limit because of his diabetes and liver problems. He later agreed to submit to the breath test; the results for the two samples were .169/.171. Fernandez was charged with driving under the influence of alcohol, a felony because he had two prior felony convictions for driving under the influence within the previous fifteen years. The State also sought a persistent violator enhancement. Fernandez pleaded not guilty and hired an expert to challenge the accuracy of the breath test. The expert witness indicated in his initial report that he would offer testimony about the accuracy of the Intoxilyzer 5000 and how diabetes and gastro

- esophageal reflux disease (GERD) could negatively affect Fernandez’s breath test results. The State filed a motion in limine to prevent the expert witness from testifying on those subjects. After a hearing, the district court granted the motion in limine. The district co urt found that Fernandez proffered no evidence showing: that Fernandez’s blood sugar levels were elevated at the time of the stop or before or during the breath test; that Fernandez was in a state of ketoacidosis at the time of the breath test; that Ferna ndez had a medical diagnosis of GERD; that Fernandez was experiencing acid reflux during or before the administration of the breath test; or that Fernandez had unabsorbed alcohol in his stomach. State v. Fernandez , Docket No. 42370 (Ct. App. Nov. 19, 2015) (unpublished)

. Thus, the district
court held t he expert witness testimony was not relevant without proof that Fernandez experienced high blood sugar levels , ketoacidosis, GERD, acid reflux, or had unabsorbed alcohol in his stomach.
Fernandez then ente red a conditional guilty plea to felony driving under the influence of
alcohol and the persistent violator enhancement. On appeal, this Court affirmed Fernandez’s judgment of conviction and order grant ing the State’s motion in limine. Id. Fernandez then filed a petition for post

- conviction relief together with a motion for appointment of counsel. In his petition, Fernandez argued his trial counsel rendered ineffective assistance by failing to sufficiently investigate his case and intervi ew available witnesses

. If trial counsel had, Fernandez argued, trial
counsel would have called a witness that could testify to Fernandez’s medical condition at the time of
the breath tests in order to lay the necessary foundation for the excluded expert witness’s testimony. The district court denied the motion for appointment of counsel and gave notice of its intent to dismiss Fernandez’s petition. After receiving Fernandez’s response to the district court’s notice of intent to dismiss, the district cou rt dismissed Fernandez’s petition. Fernandez timely appeals.
I I

. STANDARD OF REVIEW If a post

- conviction petitioner is unable to pay for the expenses of representation, the trial court may appoint counsel to represent the petitioner in preparing the petition in the trial court and on appeal. I.C. § 19

- 4904. The decision to grant or deny a request for court

- appointed3 counsel lies within the discretion of the district court. Grant v. State , 156 Idaho 598, 603, 329 P.3d 380, 385 (Ct. App. 2014). When a trial court’s discretionary decision is reviewed on appeal, the appellate court conduct s a multi

- tiered inquiry to determine whether the lower court correctly perceived the issue as one of discretion; acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it; and rea ched its decision by an exercise of reason. Sun Valley Shopping Ctr., Inc. v. Idaho Power Co. , 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991). When a district court is presented with a request for appointed counsel, the court must address this request be fore ruling on the substantive issues in the case. The district court abuses its discretion where it fails to determine whether a petitioner for post

- conviction relief is entitled

to court

- appointed counsel before denying the petition on the merits. Id. In determining whether to appoint counsel pursuant to I daho Code § 19

- 4904, the district court should determine if the petitioner is able to afford counsel and whether the situation is one in which counsel should be appointed to assist the petitioner. G rant , 156 Idaho at 603, 329 P.3d at 385. In its analysis, the district court should consider that petitions filed by a pro se petitioner may be conclusory and incomplete. Facts sufficient to state a claim may not be alleged because they do not exist or b ecause the pro se petitioner does not know the essential elements of a claim.
Id. Some claims are so patently frivolous that they could not be developed into viable claims
even with the assistance of counsel. Newman v. State , 140 Idaho 491, 493, 95 P.3d 642, 644 (Ct. App. 2004). However, if a petitioner alleges facts that raise the possibility of a valid claim, the district court should appoint counsel in order to give the petitioner an opportunity to work with counsel and properly allege the necessary supporting facts. Grant , 156 Idaho at 603, 329 P.3d at
385. Determining whether an attorney ’ s pretrial preparation falls below a level of reasonable performance constitutes a question of law, but is essentially premised upon the circumstances surrounding the attorney ’ s investigation. Thomas v. State , 145 Idaho 765, 769, 185 P.3d 921, 925 (Ct. App. 2008). To prevail on a claim that counsel ’s performance was deficient in failing to interview witnesses, a petitioner must establish that the inadequacies com plained of would have

ma de a difference in the outcome of trial. It is not sufficient merely to allege that counsel may
have discovered a weakness in the State’s case. We will not second

- guess trial counsel in the partic ularities of trial preparation. I d.4 Error is not reversible unless it is prejudicial. State v. Stoddard , 105 Idaho 169, 171, 667 P.2d 272, 274 (Ct. App. 1983). With limited exceptions, even constitutional error is not necessarily prejudicial error. Id. Thus, we examine whether the alleged error complained of in the present case was harmless. See State v. Lopez , 141 Idaho 575, 578, 114 P.3d 133, 136 (Ct. App. 2005).
I II

. ANALYSIS Fernandez argues the district court abused its discretion by applying an incorrect legal
standard in o rder to deny him post

- conviction counsel. Specifically, Fernandez asserts the
district court relied on I .C. § 19

- 852 instead of I .C. § 19

- 4904 in reaching its decision. Additionally, Fernandez contends the district court failed to recognize the reason Fernandez could not provide sufficient facts in his petition for post

- conviction relief was that his
incarcerat ion prevented him from conduct ing an investigation.
A. The District Court Did Not Rely on the Incorrect Legal Standard First, we address the dis trict court’s reliance on I.C. § 19

- 852. Within its notice of intent to dismiss Fernandez’s petition, the district court addressed Fernandez’s motion for appointment of counsel. The district court began its analysis by stating the standard for appointing post

conviction counsel: sufficient facts that show the possibility of a valid claim requiring further investigation. It then stated that some claims are so patently frivolous that they cannot possibly be developed into a valid claim meriting further in vestigation. The district court continued, quoting a passage from Charboneau v

. Stat e , 140 Idaho 789
, 792 , 102 P.3d 1108 , 1111 (2004)
that cited I.C. § 19

- 852, which defines a non

- frivolous claim as one “that a reasonable person with adequate means would be willing to bring at his own expense.” The district court concluded Fernandez’s petition for post

- conviction relief was frivolous because it provided “no facts or admissible evidence in support of his claims. Given the lack of factual support, the
Cour t can detect no possibility of a valid post

- conviction claim.” While it is true that I.C. § 19

- 852 no longer provides the correct standard with which to decide whether counsel should be appointed on post

- conviction, Swader v. State , 143 Idaho 651, 653, 1 52 P.3d 12, 14 (2007), the district court’s conclusion shows it relied on the correct
standard which interprets I.C. § 19

- 4904 to allow a court to deny a request for counsel when it cannot detect the possibility o f a valid post

- conviction claim, Charboneau , 140 Idaho at 793, 1025 P.3d at 1112

. Therefore, the district court did not abuse its discretion because it relied on the

correct legal standard applicable to the appointment of post

- conviction counsel.
B

. The District Court Correctly Concluded Fernandez’s Inability to Gather Evidence W as Not Because Fernandez W as Incarcerated , b ut Because the Evidence Did Not Exist Second, we address Fernandez’s claim that the district court did not consider Fernandez’s

nee d for appointed counsel to conduct an investigation and gather factual information for his petition because he was incarcerated

. In Swader , the Idaho Supreme C ourt evaluated a similar
claim. Swader , 143 Idaho at 65 4 , 152 P.3d at 1 5

. There, the Court provided two reasons for why petitioners , generally, may fail to allege facts sufficient to support a valid claim in their petitions for post

- conviction relief: (1) because the necessary facts simply do not exist ; or (2) because the pet itioner is unable to condu ct an adequate investigation to obtain those facts
because of the petitioner ’s incarceration. The Court held that when deciding a motion for appointment of post

- conviction counsel,
the trial court must do more than determine whe ther the petition alleges a valid claim. The court must also consider whether circumstances prevent the petitioner from making a more thorough investigation into the facts. An indigent defendant who is incarcerated in the penitentiary would almost certai nly be unable to conduct an investigation into facts not already contained in the court record.
Id. The Court continued, “Therefore, the trial court should appoint counsel if the petition alleges facts showing the possibility of a valid claim such that a reasonable person with adequate means would be willing to retain counsel to conduct a further investigation into the claim.” Id. at 655,
152 P.3d at 16. T he Court found the petitioner’s allegation

-- that the jailor’s wife, who was a juror in the trial, wa s negatively influenced by the jailor

-- was one that a reasonable person with adequate means would be willing t o retain counsel to investigate. Id. at 65 4 , 152 P.3d at 1 5

. Thus, t he Court held the district court should have appointed counsel to investigate petitioner’s post

- conviction claim. Id. at 65 5 , 152 P.3d at 1 6 . In particular, the Court noted that the petitioner , because of her incarceration, did not have a reasonable oppo rtunity to investigate her allegation. Id. at 654, 152 P.3d at 15 Of course, c ounsel should not be a ppoint ed in order to search the record for possible
nonfrivolous claims. Id. Indeed, the authorization of post

- conviction discovery i s a discretionary de termination and “‘[f]ishing expedition’ discovery should not be allowed.” Murphy v. State , 143 Idaho 139, 148, 139 P.3d 741, 750 (Ct. App. 2006). A post

- conviction6 action is not “a vehicle for unrestrained testing or retesting of physical evidence introduced at the
criminal trial.” Id. Thus, where a petitioner does not show any probability that further examination, testing, or investigation would yield exculpatory evidence to protect the petitioner ’s substantial rights , a district court is well within its discretion to deny post

- conviction discovery. Raudebaugh v. State , 135 Idaho 602, 605, 21 P.3d 924, 927 (2001) ; Murphy , 143 Idaho at 148,
139 P .3d at 750

. Here, Fernandez contends the district court abused its discretion when it den ied Fernandez’s motion for appointment of counsel without mention ing how Fernandez’s incarceration prevented him from conducting an investigation to yield facts for his post

conviction petition. The record shows that the district court did not address how Fernandez’s incarceration affected his ability to gather facts

. Ho wever, assuming arguendo that this amounts

to an incomplete or incorrect application of the relevant legal standard , where the district court applies an incorrect legal standard when denying a motion for court

- appointed counsel, this Court will simply revi ew the petition and determine, under the correct legal standard, whether or not the appointment of counsel is appropriate. See Swader , 143 Idaho at 653, 152 P.3d at 14

. As shown below, had the district court addressed Fernandez’s incarceration, the distr ict court would
have concluded that it was not the cause of Fernandez’s inability to gather necessary facts. Additionally, we conclude that this error was harmless

. See Stoddard , 105 Idaho at 171,
667 P.2d at 274. Although Fernandez’s incarceration d id prohibit him from conducting a full investigation
, appointed counsel, through investigation and further discovery , would be unable to yield the evidence Fernandez seeks to support his petition’s ineffective assistance of counsel
claim : evidence that, at t he time Fernandez took the breath tests, he was afflicte d with high
blood sugar levels , ketoacidosis, GERD, acid reflux, or had unabsorbed alcohol in his stomach
, which Fernandez need ed in order to lay foundation for the excluded expert witness to testify

. In its notice of intent to dismiss Fernandez’s petition, the district court stated that Fernandez had failed to provide any evidence to support his petition that at the time of the breath tests, Fernandez was experiencing high blood sugar levels
, ketoacidosis, GERD, acid reflux, or
had unabsorbed alcohol

-- the same reason for which the district court granted the State’ s motion
in limine to exclude Fernandez’s expert witness

. Fernandez’s failure to provide this factual information is not surprising

- - it appears the information simply does not exist. Fernandez stated in his response to the district court’s notice of intent to dismiss that “law enforcement did not7 preserve or collect evidence of the medical condition in which th e Petitioner was in at t he time, ” specifically noting he never received a medical diagnosis or medical tests. Further, Fernandez makes no allegation that other medical records exist or that further investigation would reveal
medical records describing his condition at the time o f the breath tests. Certainly, were counsel appointed, counsel would not be able to obtain a retrospective diagnosis of any medical condition occurring at the time Ferna n dez took the breath test s because no medical evidence was
collected. Fernandez’s inability to gather the relevant factual information is not due to his incarceration, but rather due to the fact that no medical evidence exists because it was not collected or preserved

-- there is nothing an expert can review. While Fernandez’ s trial counsel retained experts to testify about the accuracy of the breath test s in light of Fernandez’s medica l conditions, there was no medical evidence offered that Fernandez was experiencing any of those conditions or symptoms of those conditions at the time Fernandez participated in the breath test s

. Fernandez concedes no medical evidence was collected at the time of his breath test s , thus,
Fernandez has not shown that if counsel were appointed, counsel c ould discover the underlying facts necessary to support his ineffect ive assistance of counsel claim

. Since the evidence does not exist, Fernandez cannot show that a ppointed counsel could viably develop Fernandez’s
ineffective assistance of counsel claim . Thus, the district court did not abuse its discretion by denying Fernandez’s motion for appointment of counsel or in dismissing the petition

. I V

. CONCLUSION Fernandez has not provided factual support to show that appointed counsel could develop
a viable claim of ineffective assistance of counsel . Thus, the district court did not abuse its
discretion when it denied Fernandez appointed counsel. The district court’s judgment and order dismissing Fernandez’s petition for post

- conviction relief is affirmed.
Chief Judge GRATTON and Judge LORELLO CONCUR

.