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IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 35506
FRED WILLIE,                                                                                            )
                                                                                                        )   2010 Opinion No. 40
Petitioner-Appellant,                                                                                   )
                                                                                                        )   Filed: June 4, 2010
v.                                                                                                      )
                                                                                                        )   Stephen W. Kenyon, Clerk
STATE OF IDAHO,                                                                                         )
)
Respondent.                                                                                             )
)
Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bear
Lake County.  Hon. Peter D. McDermott, District Judge.
Order dismissing application for post-conviction relief, affirmed.
Molly J. Huskey, State Appellate Public Defender; Diane M. Walker, Deputy
Appellate Public Defender, Boise, for appellant.  Diane M. Walker argued.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.  John C. McKinney argued.
MELANSON, Judge
Fred Willie appeals from the district court’s order dismissing his application for post-
conviction relief.   Willie asserts that the district court erred when it dismissed his claim of
ineffective assistance of counsel.  For the reasons set forth below, we affirm.
I.
FACTS AND PROCEDURE
Willie was charged with nine counts of lewd conduct with a minor under the age of
sixteen years.  I.C. § 18-1508.  At the completion of trial, a jury found him guilty of three counts.
The district court sentenced Willie to concurrent, unified terms of twenty years, with minimum
periods of confinement of five years.   Thereafter, Willie filed an I.C.R. 35 motion for reduction
of sentences.  The district court granted Willie’s motion and reduced his sentences to concurrent,
unified terms of eight years, with minimum periods of confinement of three years.
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Willie filed an application for post-conviction relief seeking a vacation of his judgment of
conviction and a new trial.   Willie also filed four affidavits and two memoranda in support of his
application.   Willie’s application alleged numerous claims of ineffective assistance of counsel,
including a claim that his trial counsel failed to consult with him about filing an appeal.   After
considering the case file, application, memoranda and the accompanying affidavits, the district
court held an evidentiary hearing on all of the claims.
Willie’s trial counsel in the criminal case did not testify at the evidentiary hearing.
However, pursuant to a stipulation, the district court instead considered trial counsel’s deposition
testimony.   During the deposition, trial counsel was never asked whether he consulted with
Willie about his right to appeal.   In addition, at the evidentiary hearing, counsel for Willie never
mentioned the appeal  issue, nor did  he present  any testimony or  evidence regarding trial
counsel’s failure to consult with Willie about his right to appeal.1   The state declined to present
any evidence at the hearing.
In its memorandum decision, the district court held that Willie failed to support his
allegation of ineffective assistance of counsel for failure to consult with Willie about his right to
appeal.  The district court noted that Willie failed to present any evidence, either in the affidavits
or at the evidentiary hearing, to demonstrate that trial counsel failed to discuss with or inform
Willie about his right to appeal.   Further, the district court held that the general statements made
in Willie’s application and accompanying memoranda regarding his right to appeal were not
sufficient to support a finding of ineffective assistance of counsel.   As such, the court dismissed
Willie’s application.  Willie appeals.
II.
ANALYSIS
Willie asserts that the district court erred when it dismissed his application for post-
conviction relief because trial counsel failed to consult with him about filing an appeal when a
rational defendant in Willie’s position would want to appeal.   The state responds that, based on
this Court’s decision in Loveland v. State, 141 Idaho 933, 120 P.3d 751 (Ct. App. 2005), the
district court correctly applied the law by concluding that Willie failed to establish a claim of
ineffective  assistance  of  counsel.    Willie  contends  that  his  verified  application  for  post-
1                                                                                                         The testimony at the hearing focused on Willie’s claim that trial counsel was ineffective
for failing to investigate Willie’s alleged medical condition.
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conviction relief should have been considered by the district court as evidence of his trial
counsel’s deficient performance.   In the alternative, Willie also urges this Court to overturn its
decision in Loveland.
An application for post-conviction relief initiates a proceeding that is civil in nature.
State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Clark v. State, 92 Idaho 827,
830, 452 P.2d 54, 57 (1969); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct.
App. 1992).   Like a plaintiff in a civil action, the applicant must prove by a preponderance of
evidence the allegations upon which the request for post-conviction relief is based.   I.C. § 19-
4907; Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990).
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); Russell, 118 Idaho at 67, 794 P.2d at 656.   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.   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.   Nellsch v. State, 122 Idaho 426, 434, 835 P.2d 661,
669 (Ct. App. 1992).
To support its argument that Willie did not meet his burden to show that trial counsel’s
performance was deficient, the state relies upon this Court’s decision in Loveland.   In that case,
Loveland  filed  a  verified  application  for  post-conviction  relief,  alleging  that  trial  counsel
provided ineffective assistance of counsel.    In the affidavit accompanying the application,
Loveland asserted that he had asked his trial counsel to file an appeal and that trial counsel
refused.   At an evidentiary hearing on the application, Loveland explained that he would not
present any evidence and would rely solely upon the record and transcripts in support of his
claim.   The district court dismissed Loveland’s application because Loveland failed to present
any evidence to prove his claim of ineffective assistance of counsel.   Loveland asserted on
appeal that the verified application and the accompanying affidavits constituted evidence to be
considered by the district court at the evidentiary hearing.   However, this Court held that, unless
introduced into evidence at the hearing, verified applications and affidavits do not constitute
evidence.   Loveland, 141 Idaho at 936, 129 P.3d at 754.   This Court concluded that Loveland
was still required to prove his allegations at the hearing by a preponderance of the evidence.   Id.
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Further, this Court held that the standard for avoiding summary dismissal, in which the district
court is required to accept the application’s allegations as true, is not applicable at an evidentiary
hearing.   Id.   Therefore, because Loveland never introduced his application or affidavits into
evidence at the evidentiary hearing, this Court determined that the district court did not err when
it  dismissed  Loveland’s  application  for  post-conviction  relief.    Id.    Like  the  applicant  in
Loveland, Willie did not present any evidence at the hearing to support his claim that trial
counsel failed to inform him about his right to appeal.
Willie contends that counsel effectively placed Willie’s application into evidence at the
evidentiary hearing by stating, “Judge I don’t believe I need anything from Mr. Willie at this
point.    He’s on the record via affidavit and also of course the trial transcript in which he
participated but did not testify.”   However, this statement is not an appropriate proffer of the
affidavits or the application as evidence.   Further, this statement is not a proper request that the
district court take judicial notice of the documents.   Under I.R.E. 201(d), parties “shall identify
the specific documents or items for which the judicial notice is requested or shall proffer to the
court and serve on all [parties] copies of such documents or items.”   Here, while counsel for
Willie identified the affidavits, there was no request made for judicial notice and no mention at
all of Willie’s application, which is the only verified document that specifically alleged that trial
counsel did not discuss an appeal with Willie.   We restate our holding in Loveland that, in the
context of an evidentiary hearing pursuant to I.C. § 19-4907, affidavits and verified applications
are not evidence unless they are introduced into evidence.
At the evidentiary hearing, Willie did not properly introduce into evidence any proof,
either through trial counsel’s deposition, Willie’s affidavits, or by any other means, to support
the claim that trial counsel failed to discuss an appeal with Willie.   The only evidence produced
at  the  hearing  was  trial  counsel’s  deposition  and  expert  witness  testimony  regarding  the
investigation  of  Willie’s  medical  condition.    Nothing  in  the  testimony  or  the  deposition
supported Willie’s allegation that trial counsel failed to discuss an appeal.   It is noteworthy that
Willie’s post-conviction counsel did not question trial counsel during the deposition about
whether a discussion regarding Willie’s right to appeal took place.   Therefore, Willie failed to
meet his burden to demonstrate that trial counsel provided ineffective assistance of counsel for a
failure to discuss with Willie his right to appeal.   Accordingly, the district court did not err in
dismissing Willie’s application for post-conviction relief.
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Willie asserts, in the alternative, that this Court should overrule Loveland and hold that
verified  applications  are  automatically  admitted  as  evidence  of  trial  counsel’s  deficient
performance.  We have reviewed Loveland and decline to overrule that decision.
III.
CONCLUSION
Willie failed to meet his burden to show by a preponderance of the evidence that trial
counsel  provided  ineffective  assistance  of  counsel.    Therefore,  the  district  court’s  order
dismissing Willie’s application for post-conviction relief is affirmed.   No costs or attorney fees
are awarded on appeal.
Chief Judge LANSING and Judge GRATTON, CONCUR.
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