1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 39207

WOODROW JOHN GRANT , Petitioner-Appellant ,

v.

STATE OF IDAHO , Respondent

. ) ) ) ) ) ) ) ) ) ) 2014 Opinion No. 34

Filed: April 25, 2014
Stephen W. Kenyon, Clerk

Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. Robert C. Naftz , District Judge.
Judgment summarily dismissing petition for post

- conviction relief, affirmed

. Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson , Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer , Deputy Attorney General, Boise, fo r respondent.

________________________________________________ MELANSON, Judge Woodrow John Grant appeals from the district court’s summary dismis sal of his petition for post

- conviction relief. For t he reasons set forth below, we affirm

. I.
FACTS AND PROCEDURE In 2006, Grant pled guilty to aggravated battery. 1 He successfully completed a period of retained jurisdiction and the district court placed Grant on probation. In 2009, the state charged Grant with possession of a controlled substance , domestic battery, aggravated assault, and unlawful possession of a firearm. Grant pled guilty to possession of a controlled substance and
domestic bat tery. Grant also admitted to violating his probation. The district court sentenced
Grant to a unified term of ten years
, with a minimum period of confinement of five years
, for

1 The facts articulated in this section are taken from Grant’s direct appeal. State v. Grant , 154 Idaho 281, 282

- 83 , 297 P.3d 244, 245

- 46 (2013).2 domestic battery and a concurrent unified term of five years, with a minimum period of confinement of two years, for possession of a controlled substance. The district court also revoked Grant’s probation and executed his previously suspended sentence for aggravated battery ( a unified term of ten years
, with a minimum period of co nfinement of four years). The
2009 sentences were to be served consecutively to the 2006 sentence. Grant appealed and the Idaho Supreme Court affirmed his judgme nts of conviction and sentences

. State v. Grant , 154 Idaho 281, 28 8 , 297 P.3d 244, 251 (2013 ). In February 2011, Grant filed a petition for post

- conviction relief . Grant alleged
ineffective assistance of counsel in the underlying cases stemming from multiple incidents

. Grant also filed a motion and affidavit in support of the appointment of counsel. The state did not file an answer to Grant’s petition. The district court issued a notice of intent to dismiss pursuant to I.C. § 19

- 4906. The district court also denied Grant’s request for the assistance of
counsel. Grant filed a motion to amend his petition and a response to the district court’s notice
of intent to dismiss. The district court denied the motion to amend and dismissed Grant’ s petition . Grant filed a motion for reconsideration and the district court denied this m otion as well . Grant appeals.
I I.
ANALYSIS
A. Due Process Right to Post

- Conviction Counsel Grant argues that there is a federal and state due process right to an attorney in an initial post

- conviction proceeding. Grant’s argument relies heavily upon the recent United States Supreme Court decision in Martinez v. Ryan ,

___ U.S. ___, 132 S. Ct. 1309 (2012). The state responds that this issue is unresolved by the U nited S tates Supreme Court and that Idaho law does not grant a post

- conviction petitioner an absolute right to counsel.
I n Martinez , the United States Supreme Court a ddressed a narrow issue: [W]hether a federal habeas court may excuse a procedural default of an ineffective

- assistance claim when the claim was not properly presented in state court due to an attorney ’ s errors in an initia l

- review collateral proceeding.

Id. at ___, 132 S. Ct. at 1313. Answering this narrow question, the Court held : Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial

- review collateral proceeding, a procedu ral default will not bar a federal habeas court from hearing a substantial claim of ineffective3 assistance at trial if, in the initial

- review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

Id. at ___, 132 S. Ct. at 1320

. Thus
, Martinez only stands for the narrow proposition that a federal court in a habeas corpus case may excuse a procedural default of an ineffective assistance of trial counsel claim when the claim was not properly presented because of ineffecti ve assistance of post

- conviction counsel. Martinez allows a federal court to consider the merits of a claim that otherwise would have been procedurally defaulted. As Grant concedes, the United States Supreme Court has yet to recognize a Fourteenth
Amendm ent right to counsel in initial

- review collateral proceedings. Indeed, to the contrary, the United States Supreme Court has explicitly stated that its “ cases establish that the right to appointed counsel extends to the first appeal of right, and no furthe r.” Pennsylvania v. Finley
, 481 U.S. 551, 555 (1987)

. While language in Martinez suggests that an exception to this rule may exist in limited circumstances, no such holding exists from either the United States Supreme Court or the Idaho Supreme Court. 2 That being the case, we decl ine to interpret the Fourteenth
Amendment as requiring the appointment of counsel in an initial post

- conviction proceeding

. Further, i n Idaho, it is settled law that there is no right to counsel in post

- conviction cases. See,

e.g., Eby v. State
, 148 Idah o 731, 737, 228 P.3d 998, 1004 (2010)

. W here controlling precedent exists on an issue of Idaho law, star e decisis dictates we follow it

. Grant , 154 Idaho at 287, 297
P.3d at 250

. T hus, we decline to recognize a d ue p rocess right to counsel in an initial post

conviction proceeding under the Fourteenth Amendment or Article I, Section 13 of the Idaho
Constitution.
B

. Discretionary Appointment of Post

- Conviction Counsel Grant also argues the district court erred in refusing to appoint post

- conviction counsel because he met the requirement of demonstrating a potentially valid claim under I.C. § 19

- 4904. The state argues Grant failed to raise even the possibility of a valid claim. 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

2 Indeed, the Idaho Supreme Court recently reiterated that there is no statutory or constitutional right to counsel in post

- conviction cases. Murphy v. State , ___ Idaho, ___, ___ P.3d ___ (2014)
, pet. reh’g. pend ing . However, Murphy is not yet final and we do not rely upon it here.4 and on appeal. I.C. § 19

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

- appointed
counsel lies within the d iscretion of the district court. Charboneau v. State
, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004). When a district court is presented with a request for appointed counsel, the court must address this request before ruling on the substantive issues in the case.
Id

. ; Fox v. State , 129 Idaho 881, 885, 934 P.2d 947, 951 (Ct. App. 1997). 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. See Charboneau
, 140 I daho at 793, 102 P.3d at 1112. In determining whether to appoint counsel pursuant to I.C. § 19

- 4904, the district court should determine if the petitioner is able to afford counsel and whether the situati on is one in which counsel should be appointed to assist the petitioner. Charboneau
, 140 Idaho at 793, 102 P.3d at 1112. In its analysis, the district court should consider that petitions filed by a pro se petitioner may be conclusory and incomplete. Se e id

. at 792

- 93, 102 P.3d at 1111

- 12. Facts sufficient to state a claim may not be alleged because they do not exist or because the pro se petitioner does not know the essential elements of a claim. Id. Some claims are so patently frivolous that they co uld 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 sho uld appoint counsel in order to give the petitioner an opportunity to work with counsel and properly allege the necessary supporting facts. Charboneau
, 140 I daho at 793, 102 P.3d at 1112. Stated differently , 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. Swader v

. State , 143 Idaho 651, 655, 152 P.3d 12, 16 ( 2 007). Grant’s post

- conviction claims are all based on the ineffective assistance of counsel. A claim of ineffective assistance of counsel may properly be brought under the post

- conviction procedure act. Murray v. State , 121 Idaho 918, 924

- 25, 828 P.2d 1323, 1329

- 30 (Ct. App. 1992). To prevail on an ineffective assistance of counsel claim, the defendant must show that the attorney’s performance was deficient and that the defendant was prejudiced by the deficiency.
Stri ckland v. Washington , 466 U.S. 668, 687

- 88 (1984); Hassett v. State , 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct. App. 1995). To establish a deficiency, the petitioner has the burden of5 showing that the attorney’s representation fell below an objective stan dard of reasonableness. Aragon v. State , 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). To establish prejudice, the petitioner must show a reasonable probability that, but for the attorney’s deficient performance,
the outcome of the trial would have bee n different. Id. at 761, 760 P.2d at 1177. 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. Howard v. State , 126 Idaho 231, 233, 880 P .2d 261, 263 (Ct. App. 1994).
1. Right to remain s ilent d uring p sychological e valuation In Grant’s petition, he alleged that his attorney in t he underlying case failed to advise him of his right to refuse to participate in a court

- ordered psychological evaluation. Grant also allege d his attorney did not advise him that the information obtained in the psychological evaluation would be used again st him at sentencing . In its notice of intent to dismiss, the district court found fault with the petition because Grant did not explain exactly what type of “ psych

evaluation” was conducted. 3 Also , because Grant did not request that the district court r eview the underlying criminal case, the district court determined it was unable to evaluate Grant’s claim any further. Last, the district court concluded Grant presented no admissible evidence to
show how his participation in any evaluation implicated his counsel. Grant responded to the district court’s notice of intent to dismiss . In his verified response, Grant explained that the district court ordered him to participate in a psychological
evaluati on. Grant also explained that his attorney provided in effective assistance under Estrada
v. State , 143 Idaho 558, 149 P.3d 833 (2006) by failing to inform Grant that he was not required to provide information against himself even though there was a court order in effect. Grant alleged that information garnered during the psychological evaluation was used to his detr iment at the sentencing phase. Grant also submitted a request that the district court review the underlying criminal cases.
T he district court declined to appoint counsel and summarily dismissed Grant’s petition for post

- conviction relief. In its order dismissing the petition, the district court held that Grant

3 The petition used the term “psych

- evaluation” and did not provide any further description.6 presented no admissible evidence to demonstrate his counsel failed to advise him properly regarding his Fifth Ame ndment right prior to participation in th e psychological evaluation. 4 Alternatively, the district court held Grant’s guilty plea form disproved this claim.
Grant’s claim that his counsel was deficient for failing to advise him of the right to
remain silent during the psychological evaluation relies on Estrada
, 143 Idaho 558, 149 P.3d
833

. In that case, Estrada pled guilty to the rape of his wife. At the plea hearing, the district court accepted Estrada ’ s plea and ordered a psychosexual evaluation. Estrada did not want to participate in the evaluation, but decided to do so based on his attorney ’ s statement that “ we would not want the judge to consider your lack of cooperation to mean that you are not willing to comply with court o rders.” Id. at 560, 149 P.3d at 835 . The evaluation was completed and included a number of unfavorable and derogatory comments about Estrada. In imposing
Estrada ’ s sentence, the district court relied on the results of the evaluation. Estrada filed a post

conviction application alleging ineffective assistance of counsel for failing to advise him, after entering a guilty plea, that he retained his Fifth Amendment right against self

- incrimination at a

court

- ordered psychosexual evaluation. The Idaho Supreme Court held that a defendant has a Fifth Amendment right against self

- incrimination at a psychosexual evaluation that may support
a harsher sentence. Id. at 564, 149 P.3d at 839

. The Court also held that the decision whether to participate in a psychosexual evaluation involves a critical stage and, therefore, a Sixth
Amendment “ right to at least the advice of counsel regarding his [or her] participation in the psychosexual evaluation.” Id. at 5 63, 149 P.3d at 8 38

. The Court concluded that Estrada ’ s counsel was deficient for failing to advise Estrada of his Fifth Amendment right against self

-

4 The district court , throughout its notice of intent to dismiss, which the district court cited as the basis for denial of the appointment of counsel, repeatedly found Grant failed to present any admissible evidence and presented only bare
, conclusory allegations. We note that v erified plea dings, with respect to facts within a petitioner’s personal knowledge, are admissible evidence

. Mata v. State , 124 Idaho 588, 593, 861 P.2d 1253, 1258 (Ct. App. 1993). These types of allegations by a petitioner differ from allegations that address facts outside the personal knowledge of a petitioner or th ose based on pure speculation. Furthermore, when requesting appoint ed counsel, a petitioner does not need to support his or her claims with admissible evidence. Indeed, one of the important functions of counsel may be to assist in finding and presenting admissible evidence. The petitioner need only allege facts which raise the possibility of a valid claim. The district court’s order demonstrates it failed to make this distinction w hen addressing Grant’ s claims. However, the district court ultimately reached the correct result on grounds not affected by the failure to consider that evidence.7 incrimination as it applied to the psychosexual evaluation. Id. at 564, 149 P.3d at 839

. The Court also concluded that Estrada demonstrated prejudice as a result of his counsel ’ s deficiency because he showed that the sentencing judge specifically and repeatedly referred to the psychosexual evaluation, which suggested that it played an import ant role in the sentencing. Id. at 565, 149 P.3d at 840

. As such, the Court held that Estrada met his burden of showing
ineffective assistance of counsel. Id. In this case, Grant’s claim of ineffective assistance is disproved b y his guilty plea advisory forms

. 5 The district court found that the se forms indicate Grant understood his right to remain silent even after pleading guilty. Specifically, Grant indicated he understood he had the right to “ refuse to answer or provide any information that might tend to increase the punishment for the crime(s) to which” he was pleading guilty. Grant also indicated he had sufficient time to discuss his case with his attorney. Therefore, even assuming arguendo that Grant’s attorney failed to advise him of his right to refuse to participate in the psychological evaluation, Grant failed to establish the possibility of a valid claim, as Grant has failed to allege in what manne r he was prejudiced. The Idaho Suprem e Court recently addressed an Estrada claim arising in a similar
context in Murray v. State , ___ Idaho ___, ___, ___ P.3d ___, ___ (2014) . There, the Court
held
, where the record establishes a defendant fully understood his or her Estrada rights and
volun tarily waived them, the defendant fails to establish prejudice by demonstrating a substantial
likelihood of a different result had the attorney’s representation not been deficient. Id. at ___, ___ P.3d at ___. The situation here is analogous to that in M urray

. Grant was aware of his right not to participate in the evaluation and has failed to demonstrate how having his attorney additionally advise him of this right would have made any difference. Thus, Grant failed to

5 T he guilty plea advisory forms are not part of the record on appeal. It is the responsibility of the appel lant to provide a sufficient record to substantiate his or her claims on appeal. State v. Murinko , 108 Idaho 872, 873, 702 P.2d 910, 911 (Ct. App. 1985). In the absence of an adequate record on appeal to support the appellant’s claims, we will not presum e
error. State v. Beason , 119 Idaho 103, 105, 803 P.2d 1009, 1011 (Ct. App. 1991). Rather, missing portions of the record must be presumed to support the action of the trial court. Retamoza v. State , 125 Idaho 792, 795, 874 P.2d 603, 606 (Ct. App. 1994)

. Our representations of what the guilty plea forms indicate are based upon the district court’s order dismissing Grant’s petition.8 allege the possibility of a valid c laim. Therefore, the district court properly refused to appoint
counsel on this claim.
2. Review of the p resentence i nvestigation r eport Grant argues his attorney provided ineffective ass istance by not reviewing the presentence investigation report (P SI) with him and by failing to assist him in object ing to erroneous or unreliable information contained therein. A claim of ineffective assistance of counsel necessarily requires a right to counsel. A defendant ’ s right to effective assistance of
counsel extends to all critical stages of the prosecution where his or her substantial rights may be
affected

. Retamoza v. State , 125 Idaho 792, 796, 874 P.2d 603, 607 (Ct. App. 1994)

. However,

t his Court has previously held that a routine presentence interview is not a critical stage of the adversarial p roceedings. Stuart v. State , 145 Idaho 467, 471, 180 P.3d 506, 510 (Ct. App. 2008). Grant has failed to allege that his presentence interview was anything other than routine. Therefore, Grant was not entitled to the effective assistance of counsel at th is stage of the proceedings. See i d. In addition, Grant alleged that counsel was ineffective for failing to attend and advise regarding the presentence investigation. What he claimed in response to the district
court’s notice of intent to dismiss was a different allegation entirely

-- that his attorney failed to go over the PSI and correct mistakes. Improperly alleging a new claim is not curing a deficiency in the claim actually made. Thus, Grant has failed to allege the possibility of a vali d claim with respect to the PSI and the district court properly refused to appoint counsel on this claim.
3. Failure to p resent m itigating e vidence Grant argues his attorney provided ineffective assistance by failing to present certain mitigating evidence at sentenc ing. Specifically, Grant a lleges there were two witnesses that
should have testified

-- one that would have contradicted the victim’s version of events and another that would have established the police lost the first witness’s statement. Grant also alleges his attorney failed to present several mental health records. However, in addressing an ineffective assistance of counsel claim, tactical or strategic decisions of trial counsel will not be
second

- guessed on appeal unless those decisi ons are based on inadequate preparation, ignorance of relevant law, or other shortcomings capable of objective evaluation. Howard
, 126 Idaho at 233, 880 P.2d at 263. The shortcomings alleged by Grant are conclusory and address matters which could be cons idered sound trial strategy. For instance, attempting to trivialize the injury inflicted on the victim could have easily worked against Grant by demonstrating he was not9 taking responsibility and still attempting to m inimize his culpability . Further, Gra nt does not point to any specific information within his mental health records that could have result ed in a
more lenient sentence. Moreover, Grant pled guilty. The witness information, he concludes, would have been mitigating related, if at all, to his guilt, not sentencing. His claim regarding the existence of mental health records is conclusory. Thus, Grant has failed to allege the possibility of a valid claim with respect to the failure of his attorney to present mitigating evidence. The
district c ourt properly refused to appoint counsel on this claim.
4. Change of v enue or d isqualification of j udge Grant argues his attorney provided ineffective assistance by failing to move for a change
of venue and by failing to move for disqualification of the presiding judge. T he issue of whether a change of venue should be requested is a matter of trial strategy and tactical choice, not subject to review as a claim of ineffective assistance of counsel in the absence of proof of inadequate preparation or ignor ance on counsel ’ s part. State v. Fee , 124 Idaho 170, 175, 857 P.2d 649, 654 (Ct. App. 1993). Here, Grant does not assert inadequate preparation or ignorance on the part of his attorney. Rather, Grant alleges the victim’s mother “ was the secretary of the l ocal police
chief” and because of “ how close

- knit the law enforcement community is,” he suffered prejudice. This allegation is conclusory and inconsequential. T here is nothing in the record to
establish a basis for a change of venue, even if Grant’s attorney made such a request

. Accordingly, Grant has failed to allege the possibility of a valid claim with respect to his attorney’s failure to move for a change of venue.
As to the failure of the attorney to move for disqualification, Grant asserts the district judge previously represented Grant’s brother in a criminal case. Grant contends the district judge could have associated Grant’s brother’s criminal actions with Grant . Finally, Grant alleges prejudice because the district judge went beyond the plea agreement in imposing sentence. However, this broad assertion of prejudice is insufficient to demonstrate bias on the part of the district judge. Grant’s allegations here lack the specificity necessary to raise the possibility of a
valid claim that his attorney provided ineffective assistance in failing to move for disqualification of the district judge. Therefore, the district court properly refused to appoint
counsel on these claims.10 5. Deficient a dvice from c ounsel in p leading g uilty
Grant ar gues he received ineffective assistance of counsel because his attorney induced his guilty plea by assuring Grant that his sentences would run concurrently and that jurisdiction
would likely be retained while Grant participated in the rider program. If an attorney provides
his or her client with advice which goes beyond the range of competence demanded of attorneys during the plea process, that advice may deprive the plea of the requisite voluntariness. Nevarez
v. State , 145 Idaho 878, 884, 187 P.3d 1253, 1259 (Ct. App. 2008). As found by the district court, Grant’s guilty plea forms establish he acknowledged the following : I understand that my plea agreement is a non

- binding agreement. This means that the court is not bound by the agreement or any sente ncing recommendations, and may impose any sentence authorized by law, including the maximum sentence stated above. Because the court is not bound by the agreement, if the district court chooses not to follow the agreement, I will not have the rig ht to wit hdraw my guilty plea.

T he plea form s also indicated Grant understood that
, by pleading guilty to more than one crime,
the sentences could run concurrently or consecutively. Thus, Grant’s plea forms disprove his assertion that his plea was involuntary due to false assurances made by his attorney. Therefore, the district court properly refu sed to appoint counsel on this claim

. 6. Competency to e nter a g uilty p lea Grant argues mental health issues rendered him incompetent to enter a guilty plea. A defendant who is competent to enter a guilty plea must have a rational understanding of the proceedings against him or her and must be able to assist in his or her own de fense. Workman v.
State , 144 Idaho 518, 527, 164 P.3d 798, 807 (2007). Grant’s guilty plea form s demonstrate this
claim is without merit. As found by the district court, i n the plea forms Grant unequivocally
indicated he was able to make a reasoned and informed decision

. Grant also indicated he had not taken any medications, drugs, or consumed any alcohol that would affect his ability to make a
reasoned and informed decision. Furthermore, Grant does not cite to anything specific in the record supportin g his assertion that he was incompetent at the time he entered his guilty plea. Therefore, Grant has failed to allege facts raising the possibility of a valid claim, and thus, the
district court did not err in refusing to appoint counsel on this claim.11 C. Summary Dismissal Grant argues the district court erred by summarily dismissing his petition. Given our
conclusion above, that Grant has failed to demonstrate even the possibility of a valid claim , it necessarily follows that Grant failed to meet the more demanding standard required to survive summary dismissal

. Therefore, the district court did not err in summarily dismissing Grant’s petition.
I II

. CONCLUSION There is no due process right to counsel in post

- conviction proceedings under either the
F ourteenth Amendment or Article I, Section 13 of the Idaho Constitution. Rather, the decision to appoint counsel is committed to the district court’s discretion. Here, the district court correctly determined that Grant failed to raise even the possibility of a valid claim . Accordingly, we
affirm the judgment dismissing Grant’s petit ion for post

- conviction relief. No costs or attorney
fees are awarded on appeal. Judge GRATTON, CONCURS. Judge LANSING, DISSENTING IN PART
I c oncur with the majority opinion with respect to all but two of Grant’s post

- conviction claims. In my view, counsel should have been appointed for Grant because he presented the possibility of valid claims that his attorney was ineffective because he did n ot review the presentence investigation report (PSI) with Grant or take steps to correct misinformation in the
PSI and did not present available mitigating evidence at sentencing. As the majority opinion points out in footnote 4, throughout its decision denying appointment of counsel and dismissing Grant’s action, the district court misapprehended or misapplied the law in two important respects. First, the district court failed to recognize that verified documents filed by Grant stating alleged facts wit hin his personal knowledge constitute
affidavits and therefore are evidence. See Mata v. State , 124 Idaho 588, 593, 861 P.3d 1253, 1258 (Ct. App. 1993); Camp v. Jiminez , 107 Idaho 878, 881, 693 P.2d 1080, 1083 (Ct. App. 1984). Therefore, the district cou rt’s repeated statements that Grant had presented no evidence supporting his allegations were not correct. Second, although the district court recited the proper standard for consideration of a request for appointed counsel by an indigent petitioner in a post

conviction action, the court does not appear to have applied that standard to Grant’s claims.12 Rather than evaluating whether Grant had stated “the possibility of a valid claim,” Charboneau
v. State , 140 Idaho 789, 793, 102 P.3d 1108, 1112 (2004), the district court applied the standard for summary dismissal or, even more inappropriately, imposed the standard of proof by a preponderance of the evidence which would be proper only upon an evidentiary hearing. These errors, I believe, led the district co urt to erroneously deny counsel to represent Grant on some of
his claims. 1 The first is Grant’s allegation that his attorney did not review the PSI with him or take action to correct misstatements in the PSI. This specific claim of ineffective assistanc e relating to the PSI was not alleged in the pro se petition. Rather, the petition’s allegations vis

- à

- vis the PSI were that “counsel failed to advise, attend, or protect client’s interest during the presentence investigation” and that the attorney did no t advise Grant that he was not obligated to provide
adverse information i n the interview. However, following the district court’s notice of intent to dismiss the action, Grant filed a verified response in which he stated: “Furthermore, Grant was not given the opportunity to go over the PSI with the PD and correct mistakes, assumptions, or unproven allegations. Grant asserts that the PSI is incorrect and that he specifically requested the
PD t o have the PSI amended to correct the misinformation but was rebuffed.” The district court should have considered these allegations before denying appointed counsel. As the Idaho Supreme Court explained in Charboneau , before denying counsel, the court mu st give the petitioner adequate notice of the perceived defects in his allegations or evidence and allow the petitioner “to supplement the request with the necessary additional facts, if they exist.” Id. (quoting Brown v. State , 135 Idaho 676, 679, 23 P.3 d 138, 141 (2001)). That is what Grant did

1 I also note another misunderstanding, expressed in the district court’s notice of intent to dismiss, concerning the evidence that may be considered by the court relative to summary dismissal of a post

- conviction action. In the district court’s notice of i ntent to dismiss, the court stated, “As the Petitioner did not request the review of the underlying criminal record, this court cannot examine any evaluations or even determine what type of ‘psych

- evaluation,’ if any, occurred here.” The court thereby und uly limited the information it could consider. Idaho Rule of Evidence 201 governs judicial notice of adjudicative facts. Subsection (c) of that rule specifically contemplates that a court may take judicial notice, “whether requested or not,” of records, exhibits or transcripts from the court file in a separate case. Therefore, the court was free to take judicial notice of the evaluations of Grant that were in the criminal case file. I also note that the district court apparently did take notice of infor mation from the criminal case file when it refuted Grant’s claims, for the court dismissed some of the claims based on the content of Grant’s guilty plea questionnaire in the criminal case file.13 in his response to the court’s notice of intent to dismiss and, in my view, the additional information that he provided in that response was sufficient to state the possibility of a valid
claim. The majority opin ion affirms the dismissal of this claim on the ground that a routine presentence interview is not a critical stage of the criminal proceedings. While I agree that this rule of law precludes Grant’s claims of ineffective assistance for his attorney’s failu re to attend the PSI interview or to advise him in advance concerning the interview, I do not agree that it extends to an attorney’s failure to identify and correct inaccuracies in the report at the sentencing hearing. Unlike the presentence interview, th e sentencing hearing is unquestionably a critical stage of the adversarial process at which a criminal defendant is constitutionally entitled to
effective assistance of counsel. Estrada v. State , 143 Idaho 558, 562, 149 P.3d 833, 837 (2006).
Part of coun sel’s role at sentencing is to assure that erroneous information in the PSI is challenged and corrected. In my view, an attorney’s failure to discuss the PSI with the defendant and make efforts to correct errors in the PSI that are brought to the attorney ’s attention by the defendant constitutes deficient performance. It is unknown, of course, whether, with the assistance of counsel, Grant could present evidence sufficient to prove this claim or even sufficient to survive a motion for summary dismissal. (To date he has not, for example, even identified any of the alleged inaccuracies in the PSI.) He has, however, alleged at least the possibility of a valid claim and, therefore, in my view, should have been appointed counsel to assist him in presenting it

. Likewise, Grant’s allegation that his attorney failed to present available mitigating evidence at sentencing asserts the possibility of a valid claim. The majority holds that this claim was properly dismissed because counsel’s failure to present mitigat ing evidence could constitute sound trial strategy. In my view
, that disposition is inappropriate at this stage of the proceedings. As the majority notes, 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.” Howard v. State , 126 Idaho 231, 233, 880 P.2d 261, 263 (Ct. App. 1994). At this stage, with Grant not having been appointed counsel to help him develop this claim, neither the district court nor this Court is in a position to determine whether there existed viable mitigating evidence or, if so, whether the attorney’s failure to present it was based on inadequate preparation, ig norance of relevant law, or other14 shortcomings. We have previously held that an omission to present available mitigating evidence at sentencing can constitute ineffective assistance of counsel warranting post

conviction relief. Vick v. State , 131 Idaho 1 21, 125

- 26, 952 P.2d 1257, 1261

- 62 (1998); see also
Richman v. State , 138 Idaho 190, 193, 59 P.3d 995, 998 (Ct. App. 2002). Thus, this is a claim for which Grant should have been appointed counsel. For the foregoing reasons, I would reverse the summary d ismissal with respect to the two claims described above and would remand for appointment of counsel and further proceedings on those claims.