GUTIERREZ, Chief Judge.
Donna Kay Thorngren appeals from the judgment dismissing her amended petition for post-conviction relief. On appeal, Thorngren argues the district court erred by granting summary dismissal of Thorngren's claim of ineffective assistance of defense counsel. For the reasons that follow, we affirm.
Underlying this post-conviction relief action is Thorngren's conviction of first degree murder. The facts of the first degree murder trial, as previously set forth by the Idaho Supreme Court, are as follows:
State v. Thorngren, 149 Idaho 729, 730-31, 240 P.3d 575, 576-77 (2010) (alterations in original) (footnote omitted).
Thorngren appealed from the judgment of conviction, contending the trial court abused its discretion in concluding the shed statement was an excited utterance, the trial court violated Thorngren's right to due process by reversing an earlier ruling that the statement was inadmissible hearsay, and the trial court abused its discretion by refusing to grant a continuance. This Court affirmed the judgment of conviction in an unpublished opinion. State v. Thorngren, Docket No. 34806 (Ct. App. Jun. 24, 2009). The Idaho Supreme Court granted review of the case and also affirmed the judgment of conviction. Thorngren, 149 Idaho 729, 240 P.3d 575.
Following the Supreme Court's affirmance, Thorngren filed a pro se petition for post-conviction relief. In support of her petition, Thorngren included affidavits from Austin Thorngren and Amber Whitmore. The affidavits contained statements that seemingly contradicted Ketterling's trial testimony. The district court appointed counsel for Thorngren, and Thorngren filed an amended petition for post-conviction relief. In her amended petition, Thorngren argued her defense counsel provided ineffective assistance of counsel, claiming her counsel (1) failed to obtain evidence that would impeach the shed statement at trial or render the shed statement inadmissible at trial as a result of her defense counsel's reliance on the trial court's earlier pronouncement concerning the shed statement; (2) failed to properly articulate the need for additional time to investigate the shed statement in the motion for continuance; (3) failed to hire expert witnesses to review the State's evidence; (4) failed to hire an investigator for the case; and (5) failed to adequately interview fifteen witnesses. The State answered and moved for summary dismissal. After a hearing on the motion, the district court determined: (1) Thorngren could not show she was prejudiced by her defense counsel's reliance on the trial court's initial pronouncement concerning the shed statement; (2) Thorngren could not show additional arguments would have been meritorious in granting a continuance nor show the outcome of the trial would have been different had a continuance been granted; (3) Thorngren failed to identify what testimony an expert witness could have provided; (4) Thorngren failed to identify how hiring an investigator would likely have changed the outcome of the trial; and (5) Thorngren failed to articulate how the testimony of the majority of the witnesses would affect the outcome of trial, and as to Austin and Amber, failed to show prejudice. The district court granted the motion for summary dismissal and entered a judgment dismissing Thorngren's amended petition for post-conviction relief. Thorngren appeals.
A petition for post-conviction relief initiates a civil, rather than criminal, proceeding, governed by the Idaho Rules of Civil Procedure. State v. Yakovac, 145 Idaho 437, 443, 180 P.3d 476, 482 (2008). See also Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642, 646 (2008). Like plaintiffs in other civil actions, the petitioner must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. Idaho Code § 19-4907; Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); 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, however, in that it must contain more than "a short and plain statement of the claim" that would suffice for a complaint under Idaho Rule of Civil Procedure 8(a)(1). State v. Payne, 146 Idaho 548, 560, 199 P.3d 123, 135 (2008); Goodwin, 138 Idaho at 271, 61 P.3d at 628. The petition 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. I.C. § 19-4903. In other words, the petition must present or be accompanied by admissible evidence supporting its allegations or it will be subject to dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011); Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994).
Idaho Code § 19-4906(c) authorizes summary dismissal of a petition for post-conviction relief, either pursuant to motion of a party or upon the court's own initiative, if "it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." When considering summary dismissal, the district court must construe disputed facts in the petitioner's favor, but the court is not required to accept either the petitioner's mere conclusory allegations, unsupported by admissible evidence, or the petitioner's conclusions of law. Payne, 146 Idaho at 561, 199 P.3d at 136; Roman, 125 Idaho at 647, 873 P.2d at 901. Moreover, because the district court rather than a jury will be the trier of fact in the event of an evidentiary hearing, the district court is not constrained to draw inferences in the petitioner's favor, but is free to arrive at the most probable inferences to be drawn from the evidence. Yakovac, 145 Idaho at 444, 180 P.3d at 483; Wolf, 152 Idaho at 67, 266 P.3d at 1172; Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). Such inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify them. Chavez v. Barrus, 146 Idaho 212, 218, 192 P.3d 1036, 1042 (2008); Hayes, 146 Idaho at 355, 195 P.2d at 714; Farnsworth v. Dairymen's Creamery Ass'n, 125 Idaho 866, 868, 876 P.2d 148, 150 (Ct. App. 1994).
Claims may be summarily dismissed if the petitioner's allegations are clearly disproven by the record of the criminal proceedings, if the petitioner has not presented evidence making a prima facie case as to each essential element of the claims, or if the petitioner's allegations do not justify relief as a matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281 (2010); McKay v. State, 148 Idaho 567, 570, 225 P.3d 700, 703 (2010); DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009); Charboneau v. State, 144 Idaho 900, 903, 174 P.3d 870, 873 (2007); Berg v. State, 131 Idaho 517, 518, 960 P.2d 738, 739 (1998); Murphy v. State, 143 Idaho 139, 145, 139 P.3d 741, 747 (Ct. App. 2006); Cootz v. State, 129 Idaho 360, 368, 924 P.2d 622, 630 (Ct. App. 1996). Thus, summary dismissal of a claim for post-conviction relief is appropriate when the court can conclude, as a matter of law, that the petitioner is not entitled to relief even with all disputed facts construed in the petitioner's favor. For this reason, summary dismissal of a post-conviction petition may be appropriate even when the State does not controvert the petitioner's evidence. See Payne, 146 Idaho at 561, 199 P.3d at 136; Roman, 125 Idaho at 647, 873 P.2d at 901.
Conversely, if the petition, affidavits and other evidence supporting the petition allege facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be summarily dismissed. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004); Berg, 131 Idaho at 519, 960 P.2d at 740; Stuart v. State, 118 Idaho 932, 934, 801 P.2d 1283, 1285 (1990); Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008); Roman, 125 Idaho at 647, 873 P.2d at 901. If a genuine issue of material fact is presented, an evidentiary hearing must be conducted to resolve the factual issues. Kelly, 149 Idaho at 521, 236 P.3d at 1281; Payne, 146 Idaho at 561, 199 P.3d at 136; Goodwin, 138 Idaho at 272, 61 P.3d at 629.
On appeal from an order of summary dismissal, we apply the same standards utilized by the trial courts and examine whether the petitioner's admissible evidence asserts facts which, if true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925, 929 (2010); Berg, 131 Idaho at 519, 960 P.2d at 740; Sheahan, 146 Idaho at 104, 190 P.3d at 923; Roman, 125 Idaho at 647, 873 P.2d at 901. Over questions of law, we exercise free review. Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069 (2009); Downing v. State, 136 Idaho 367, 370, 33 P.3d 841, 844 (Ct. App. 2001); Martinez v. State, 130 Idaho 530, 532, 944 P.2d 127, 129 (Ct. App. 1997).
On appeal, Thorngren argues the district court erred by granting summary dismissal of her ineffective assistance of counsel claim. Specifically, Thorngren maintains that her defense counsel provided ineffective assistance of counsel by: (1) failing to obtain evidence that would impeach the shed statement at trial or would render the shed statement inadmissible, as a result of her defense counsel's reliance on the trial court's pronouncement concerning the admissibility of the shed statement; (2) failing to make specific arguments in moving for a continuance after the trial court ruled the shed statement was admissible; and (3) failing to interview several witnesses regarding the shed statement.
A claim of ineffective 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 must 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 deficiency, 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). This Court has long adhered to the proposition that tactical or strategic decisions of defense 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). 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 for failing to interview witnesses, a petitioner must establish that the inadequacies complained of would have made a difference in the outcome of trial. Id. It is not sufficient merely to allege that counsel may have discovered a weakness in the State's case. Id. We will not second-guess defense counsel in the particularities of trial preparation. Id.
To show prejudice, the petitioner must show a reasonable probability that, but for the attorney's deficient performance, the outcome of the trial would have been different.
Thorngren argues her defense counsel's reliance on the trial court's initial pronouncement excluding the shed statement was misplaced. Thorngren contends that had her defense counsel not relied on the initial pronouncement, defense counsel would have discovered additional evidence pertaining to the shed statement, namely evidence from Austin and Amber. This evidence, according to Thorngren, would have rendered the shed statement inadmissible or would have impeached the shed statement at trial.
The shed statement was a point of contention in Thorngren's direct appeal. When the Idaho Supreme Court reviewed the matter, the Court held the shed statement was admissible as an excited utterance under the State v. Field, 144 Idaho 559, 568, 165 P.3d 273, 282 (2007) totality-of-the-circumstances test. Thorngren, 149 Idaho at 732-34, 240 P.3d at 578-80. Thorngren had argued the trial court's reversal of its earlier decision concerning the shed statement denied her due process of law. The Supreme Court determined, "The district court's initial `ruling' on the shed statement merely served as a backdrop for its determination of the motion to sever the trials, and was not a definitive ruling on the ultimate admissibility of the shed statement." Id. at 735, 240 P.3d at 581. In dicta, the Supreme Court further stated, "Even though the admissibility of the shed statement was a matter of discussion in the district court's ruling, the only matter before the court when making its ruling was the motion to sever. Therefore, Donna's continuing reliance on the shed statement's inadmissibility was misplaced." Id. The Supreme Court concluded Thorngren was not denied due process of law because "a ruling on a pretrial motion to exclude evidence is tentative and subject to revision at trial" and because her attorney's reliance on the pretrial evidentiary ruling was not warranted. Id. at 736, 240 P.3d at 582 (quoting State v. Streich, 658 A.2d 38, 50 (Vt. 1995)).
The Supreme Court also reviewed whether Thorngren's due process rights were violated by the trial court's denial of Thorngren's motion for a continuance and found there was no violation. The Supreme Court primarily relied on its determination that "Ketterling was thoroughly impeached at trial, which supports a finding of no [due process] prejudice." Id. (emphasis added). The Supreme Court provided a footnote to explain how Ketterling was thoroughly impeached:
Id. at 736 n.6, 240 P.3d at 582 n.6 (emphasis added).
Based on the Supreme Court's finding that Ketterling was thoroughly impeached, the district court, in summarily dismissing Thorngren's petition for post-conviction relief, determined that even if Thorngren's defense counsel had not relied on the original pronouncement, but instead discovered the additional evidence Austin and Amber attested to in their affidavits, there would have been no prejudice. However, Thorngren asserts the shed statement, itself, was not impeached, as it could have been had her defense counsel not relied on the trial court's pronouncement and, instead, interviewed Amber and Austin. Strickland requires Thorngren to demonstrate both prongs of deficiency and prejudice. Because it is dispositive, we address only whether Thorngren has established the prejudice prong. Ridgley, 148 Idaho at 676, 227 P.3d at 930.
Initially, we address Thorngren's argument that the shed statement would have been rendered inadmissible had her defense counsel found other evidence from Austin and Amber concerning the shed statement. On direct appeal, the Idaho Supreme Court decided the statement was properly admitted. Thorngren, 149 Idaho at 734, 240 P.3d at 580. The additional evidence that Thorngren argues her trial attorney would have found would not have gone to the admissibility of the shed statement, but would have instead gone to credibility of the witness, which we address below.
Assuming Thorngren's defense counsel had not relied on the original pronouncement, but instead, discovered the additional evidence from Austin and Amber that seemingly conflicted with Ketterling's shed statement, we are persuaded that there is not a reasonable probability that the outcome of the trial would have been different. Additional evidence from Austin and Amber, as evidenced by the affidavits submitted with Thorngren's petition for post-conviction relief, would have gone to the credibility of Ketterling's testimony at trial, including his testimony regarding the shed statement. Indeed, the additional evidence from Austin and Amber would have added to the other credibility issues of Ketterling's testimony that were already raised by Thorngren's defense counsel. As the Supreme Court recognized, Ketterling's testimony had already been thoroughly impeached and would have allowed the jury to give little weight to his testimony. Id. at 736 n.6, 240 P.3d at 582 n.6. Thus, Thorngren cannot show that the additional testimony offered by Austin, Amber, or both, would have, with a reasonably probability, changed the outcome of the proceeding. Compare Sully v. Ayers, 725 F.3d 1057, 1073-74 (9th Cir. 2013) (affirming denial of writ of habeas corpus based, in part, on counsel's failure to impeach a witness where counsel had already extensively impeached the witness), with People v. Armstrong, 806 N.W.2d 676, 681-82 (Mich. 2011) (determining the witness was not thoroughly impeached but was only attacked with "he said, she said" testimony and finding prejudice was shown based on counsel's failure to introduce impeaching evidence).
Thorngren further argues her defense counsel should have taken a different approach in arguing for a continuance after the trial court determined the shed statement to be admissible. Specifically, Thorngren contends her defense counsel should have articulated that he needed to investigate the shed statement and interview witnesses possibly related to the shed statement. According to Thorngren, it is likely the trial court would have granted the continuance and her defense counsel would have obtained additional impeachment evidence. We already determined that the additional evidence Thorngren argues her defense counsel could have discovered with additional time does not correlate to a finding of prejudice. Thus, we cannot say there is a reasonable probability that the outcome of the trial would have been different had Thorngren's defense counsel articulated specific reasons why a continuance was needed after the trial court found the shed statement to be admissible.
Lastly, Thorngren contends her defense counsel failed to interview additional witnesses. The district court determined Thorngren had not submitted affidavits indicating what the witnesses would have testified to for most of the individuals Thorngren listed as potential witnesses. Because the record lacks any evidence of what the witnesses would have testified to, we cannot say there is a reasonable probability that the outcome of the trial would have been different had Thorngren's defense counsel interviewed the additional witnesses identified by Thorngren.
We conclude Thorngren failed to establish prejudice from her defense counsel's alleged deficient performance. Ketterling had already been thoroughly impeached and there is not a reasonable probability the additional evidence identified by Thorngren would have changed the outcome of the trial. The district court correctly determined that no genuine issue of material fact was raised in Thorngren's amended petition for post-conviction relief. Accordingly, the district court's judgment dismissing Thorngren's amended petition for post-conviction relief is affirmed.
Judge MELANSON
Judge LANSING
Lafler, ___ U.S. at ___, 132 S. Ct. at 1393-94 (Scalia, J., dissenting) (footnote omitted).
