IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 47797
SHAWN M. KESLING, )
) Filed: January 5, 2022
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
STATE OF IDAHO, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Michael J. Reardon, District Judge.
Judgment summarily dismissing amended petition for post-conviction relief,
affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Brian R. Dickson, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
Attorney General, Boise, for respondent.
________________________________________________
GRATTON, Judge
Shawn M. Kesling appeals from the district court’s judgment granting the State’s motion
for summary dismissal of Kesling’s post-conviction petition and denying Kesling’s motion for
summary disposition. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2016, law enforcement received information that Kesling was writing checks
with insufficient funds. One check in particular, check #1136, was issued on June 1, 2015. Kesling
first spoke with law enforcement in December 2016. He reported that the American Express
Bluebird account ending in 0075 that he had used for check #1136 was closed for the past six
months because they were having issues with it. Eventually, Kesling admitted to law enforcement
he used an unauthorized code on check #1136 when he was supposed to call Bluebird and acquire
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an authorization code before issuing any checks. Kesling told law enforcement he could easily
provide documentation to establish the account existed, and he stated he would call Bluebird that
day. Nonetheless, Kesling never provided law enforcement documentation of his Bluebird account
even though he contacted the investigating officer by email for other reasons.
Detective Buie issued a subpoena to American Express and was advised that the alleged
Bluebird bank account did not exist. Detective Buie later received information that the account
number on the checks did not coordinate with any accounts and were fraudulently produced.
Kesling was charged with several offenses and ultimately pled guilty to one count of
forgery, Idaho Code § 18-3606; the other charges were dismissed pursuant to a plea agreement.
The charge Kesling pled guilty to alleged:
COUNT I
That the defendant, SHAWN MICHAEL KESLING, on or about the lst day
of June 2015, in the County of Ada, State of Idaho, did, with the intent to defraud
another, make, and/or pass, and/or utter any fictitious bill, note, or check,
purporting the bill, note, or check in writing for the payment of money or property
of some such bank account when in fact, there is no such bank account in existence,
knowing the same to be fictitious, to-wit: check #1136 from a fictitious Bluebird
bank account made payable to Ada County in the amount of $130.55.
In February 2018, Kesling filed a pro se petition for post-conviction relief, and the State
responded with a motion for summary dismissal. Counsel was appointed for Kesling, and the
district court granted Kesling permission to conduct discovery. Subsequently, Kesling amended
his petition for post-conviction relief. In Count 1 of his amended petition, Kesling claimed that
his trial counsel was ineffective for failing to “properly investigate and obtain evidence in defense
of the crime; to wit: bank account statements and records that proved or tended to prove that he
did not write checks on an account that did not exist.” In May 2019, Kesling filed a motion for
summary disposition but later obtained a stay from the district court in order to conduct further
investigation into the existence of business records establishing a valid account. In January 2020,
the district court entered its order denying Kesling’s motion for summary disposition and granting
the State’s motion for summary dismissal. Kesling timely 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,
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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 Idaho Rule of Civil
Procedure 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
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).
Idaho Code § 19-4906 authorizes summary dismissal of a petition for post-conviction
relief, either pursuant to a motion by 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. Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct.
App. 1994); Baruth v. Gardner, 110 Idaho 156, 159, 715 P.2d 369, 372 (Ct. App. 1986).
Moreover, the district court, as the trier of fact, is not constrained to draw inferences in favor of
the party opposing the motion for summary disposition; rather, the district court is free to arrive at
the most probable inferences to be drawn from uncontroverted evidence. 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. Id.
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); DeRushé
v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary dismissal of a claim
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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 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);
Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). If a genuine issue of
material fact is presented, an evidentiary hearing must be conducted to resolve the factual issues.
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); Sheahan, 146 Idaho at 104, 190 P.3d at 923. Over questions of law, we exercise free
review. Rhoades, 148 Idaho at 250, 220 P.3d at 1069; Downing v. State, 136 Idaho 367, 370, 33
P.3d 841, 844 (Ct. App. 2001).
III.
ANALYSIS
Kesling argues that the district court erroneously granted the State’s motion for summary
dismissal of his ineffective assistance of counsel claim. 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). Where, as
here, the petitioner was convicted upon a guilty plea, to satisfy the prejudice element, the petitioner
must show that there is a reasonable probability that, but for counsel’s errors, he or she would not
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have pled guilty and would have insisted on going to trial. Plant v. State, 143 Idaho 758, 762, 152
P.3d 629, 633 (Ct. App. 2006). 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. Gonzales v. State, 151 Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011).
Kesling claims ineffective assistance of counsel because trial counsel did not properly
investigate the existence of Bluebird account 0075. Kesling maintains he had an active Bluebird
account ending in 0075 which corresponded with check #1136. Kesling provided the district court
with an account statement for Bluebird account 0680 and American Express records for account
0680. Kesling also provided business records and an affidavit from Harland Clarke, a check
printing company, that show four check orders were transmitted from American Express Bluebird
to Harland Clarke to print and deliver personalized checks to Shawn M. Kesling. The check orders
reference American Express Bluebird account 0075. Based upon this evidence, Kesling argues he
would have had a defense to the charge and chose to go to trial rather than plead guilty.
The State argues that the district court correctly concluded that trial counsel’s performance
was reasonable because Kesling has failed to submit sufficient proof that account 0075 actually
existed or that trial counsel would have discovered evidence of its existence. The State further
argues that even if the account existed, trial counsel reasonably recognized the State would amend
the charge to forgery under I.C. § 18-3601 based on Kesling’s admission to writing a fictitious
preauthorization code on check #1136. In this regard, the State points out that Kesling admitted
forgery when he told the district court he wished to plead guilty: “Because I committed the act as
alleged. I wrote a check to--I believe it was Ada County--and falsified the authorization number
that was required to have the check paid. So I am guilty.” Lastly, even without amendment, the
State argues that trial counsel reasonably could have determined conviction under I.C. § 18-3606
would have been upheld on appeal under State v. Bishop, 89 Idaho 416, 405 P.2d 970 (1965)
(upholding conviction under I.C. § 18-3606 even though evidence only supported conviction under
I.C. § 18-3601).
The district court reviewed the documents Kesling submitted in his effort to show the
existence of account 0075. As to the American Express records, the district court correctly noted
that “none of those accounts are the 0075 Account from which Petitioner is alleged to have made
the check that was the subject of his forgery conviction.” The district court stated:
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At this point in the proceedings, Petitioner has been given approximately
nineteen (19) months, since the entry of the Court’s order for Permission to Conduct
Civil Discovery, to produce some evidence from Bluebird American Express or
Wells Fargo of the existence of the 0075 Account in question. Petitioner has failed
to do so.
The district court indicated that, “at best,” the Harland Clarke affidavit showed four check orders
were transmitted from American Express Bluebird to Harland Clarke to print and deliver checks
to Kesling. The check orders reference American Express Bluebird account 0075. The affidavit
of the Harland Clarke representative, however, indicated that Harland Clarke does not maintain or
possess any banking or financial records for Kesling. Based upon the documentation provided,
the district court could not find the account 0075 actually existed, let alone existed with funds
available to Kesling. The district court determined that since Kesling has been unable to produce
evidence of the account almost two years after requesting time for civil discovery, it was not
unreasonable for Kesling’s trial counsel to have forgone such a “fruitless investigation.”
We agree with the district court’s finding there is no genuine issue of material fact in regard
to account 0075. While Kesling provided business records that demonstrate a Bluebird American
Express account 0680 and check orders for account 0075, he has not demonstrated how these
accounts are connected nor whether account 0075 actually existed.
Trial counsel did have a duty to conduct a prompt investigation in Kesling’s case. See
Richman v. State, 138 Idaho 190, 193, 59 P.3d 995, 998 (Ct. App. 2002) (noting trial counsel’s
duty to investigate and that such investigation will be assessed based upon reasonableness given
the circumstances of the case). Trial counsel had access to law enforcement reports. Those reports
reflected that Kesling admitted to law enforcement that he used an unauthorized code on check
#1136 when he was supposed to call Bluebird and acquire an authorization code before issuing
any checks and that law enforcement determined account 0075 did not exist. Lastly, although
Kesling has maintained that account 0075 existed, he has failed to provide any evidence of such,
including during his lengthy post-conviction proceedings. 1 Based upon all the information trial
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Although it remains trial counsel’s duty to investigate, this does not mean the Court must
disregard Kesling’s ability to help counsel with his defense. Although the account had reportedly
been closed for the past six months, Kesling remained in a position to acquire documentation to
show account 0075 existed in June 2015. During his interview, Kesling told law enforcement he
could easily provide documentation to establish the account existed and he stated he would call
Bluebird that day. Yet, he never provided law enforcement any documentation of his Bluebird
account event though he had the ability to follow up given that he contacted the investigating
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counsel had, and Kesling’s failure to provide evidence that additional investigation would have
been productive, the district court correctly concluded that there was no genuine issue of material
fact that trial counsel’s performance was deficient.
As such, we need not address the parties’ arguments regarding the prejudice prong of
Strickland. The district court did not err in granting the State’s motion for summary dismissal and
denying Kesling’s motion for summary disposition.
IV.
CONCLUSION
Kesling failed to provide evidence to show a genuine issue of material fact that his trial
counsel’s actions were deficient. For that reason, the district court did not err when it granted the
State’s motion for summary dismissal and denied Kesling’s motion for summary disposition. The
district court’s judgment dismissing Kesling’s amended petition for post-conviction relief is
affirmed.
Chief Judge LORELLO and Judge BRAILSFORD CONCUR.
officer by email for other reasons. Finally, Kesling does not allege he provided documentation to
his trial counsel that would have warranted further investigation, he only verbally insisted the
account existed.
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