dissenting.
I respectfully dissent from the majority opinion and would uphold the district court’s dismissal of the petition.
A The District Court Did Not Err By Granting The State’s Motion For Summary Dismissal Because Charboneau’s Petition Was Based Upon Evidence That Was Not Admissible And Admissible Evidence Which Did Not Support Post-Conviction Relief.
In dismissing the petition, the district court determined Charboneau’s “new evidence” is neither new nor admissible evidence. “To justify a post-conviction evidentiary hearing, the petitioner must make a factual showing based on admissible evidence. The application must be supported by written statements from competent witnesses or other verifiable information.” McKinney v. State, 133 Idaho 695, 700, 992 P.2d 144, 149 (1999) (citation omitted). Under the hearsay rule, “[hjearsay is not admissible except as provided by [the Idaho Rules of Evidence] or other rules promulgated by the Idaho Supreme Court.” I.R.E. 802; Rowan v. Riley, 139 Idaho 49, 54, 72 P.3d 889, 894 (2003). Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” I.R.E. 801; Rowan, 139 Idaho at 54, 72 P.3d at 894. Summary dismissal is proper and an evidentiary hearing is not required if only unsubstantiated, and conclusory allegations are raised in the petition. McKinney, 133 Idaho at 700, 992 P.2d at 149; Nguyen v. State, 126 Idaho 494, 497, 887 P.2d 39, 42 (Ct.App.1994). The supporting affidavits must contain verifiable information. Nguyen, 126 Idaho at 497, 887 P.2d at 42. Moreover, the facts alleged in the petition, even if true, must justify a grant of relief to the petitioner. Stuart v. State, 118 Idaho 932, 934, 801 P.2d 1283, 1285 (1990).
Charboneau supports his petition with a number of affidavits. However, the relevant parts of the affidavits that contain potentially exculpatory evidence that might justify a grant of relief by this Court are inadmissible as hearsay. For example, Crabtree attests that “Tira [the deceased’s daughter and wife of Charboneau’s brother] told me that the tragedy which took the life of her mother on July 1st, 1984, did not happen the way it was played out in court ... [and the prosecutors] did instruct her on what they wanted her to say regarding the events which took place on July 1st.” This information is inadmissible because Crabtree testified, “tragically, Tira passed away recently due to a severe asthma attack before she had a chance to testify.” Generally, statements made by a person who later from becomes deceased are inadmissi*795ble unless they are declarations made in the belief of impending death. See I.R.E. 804(b)(2); Blaine County Inv. Co. v. Mays, 49 Idaho 766, 291 P. 1055 (1930); State v. Barber, 13 Idaho 65, 88 P. 418 (1907). Additionally, without more, such as a sworn statement from Tira Arbaugh, the allegations are unsubstantiated, unverifiable and conclusory. These statements are insufficient to support a petition for post-conviction relief.
Crabtree also supplies information that allegedly came from a former sheriff deputy, Alonzo. This information would not be admissible because it is relayed through a third person and constitutes hearsay. Additionally, the information does not relate directly to Charboneau’s case. Crabtree states that Tina Venable met with Alonzo and recorded what he said. Crabtree states she “played the tape and it was full of information. [Alonzo] could give us a wealth of information of the hidden evidence and corruption with the Jerome County Sheriffs Department____ [Alonzo] told me both times that he would not get involved with any of this because he’s not going to jeopardize his career and plus he was worried about his family.” Neither the tape-recorded conversation nor a sworn statement from Alonzo is part of the record. The statements attributed to Alonzo are hearsay and, without more, the information is unsubstantiated, unverifiable and conclusory. These statements are also insufficient to support a petition for post-conviction relief.
Charboneau presents a letter from former Sheriff Gold which states “[t]here also appeared to be a ‘collaboration of minds’ intelligent enough to control the events of the time, but ‘little enough’ to feel that they ‘had to collaborate’ because the facts ‘may not have been strong enough’, or ‘evidence that was collected under suspect conditions, dismissed because of contamination’ and may have required manipulation by design.” Nevertheless, the letter continues, “Jaimi, remember that this is just a personal hypothesis now. I have no proof of this in your case.” Therefore, Gold has no personal knowledge of any evidence. Rather, Gold offers a hypothesis, unverified and conclusory. Gold’s hypothesis, unsupported by facts or evidence, will not support a petition for post-conviction relief.
Finally, Crabtree testifies that Wright, a janitor at the Jerome County Courthouse, knew of evidence that would have cleared Charboneau, but “he was told to keep his mouth shut about it and the prosecution withheld it from the courts.” Crabtree called the Wright household, but Mrs. Wright “became very — almost rude and said no [Wright is] at work — but we don’t want to be involved in that, just leave us alone.” Without physical evidence or a sworn statement, the information allegedly known by Wright is unsubstantiated and inadmissible, and cannot support a petition for post-conviction relief.
Charboneau supports his petition with other admissible affidavits, but these affidavits do not contain exculpatory information that would justify an evidentiary hearing or relief from his conviction. For instance, Carlos Powell testified that he was aware that the deceased shot Charboneau on a previous occasion. Carmon Shannon “got to know both Jaimi and Marilyn from the times they would stop in at ‘Grass Mare,’ a combination gas station and café ... I remember seeing Jaimi and Marilyn in early June 1984 when they had stopped ... for gas. On that occasion they were driving an older model, red Ford pickup.” Additionally, Charboneau’s aunt and uncle testified essentially that Charboneau and the deceased were at their house a few nights prior to the shooting and “they were getting along fine” and were happy together.
Therefore, I dissent from the majority opinion because the district court properly dismissed Charboneau’s petition. The evidence presented by Charboneau was either inadmissible hearsay, unsubstantiated, conclusory or did not contain any exculpatory information or evidence sufficient to justify either an evidentiary hearing or relief from Charboneau’s conviction. Because there was no justification for an evidentiary hearing and no legal basis for relief from the conviction, the petition is frivolous.
B. The District Court Committed Harmless Error When It Failed To Rule On The Motion For Appointment of Counsel.
Although the district court erred in failing to rule on Charboneau’s Motion for Appoint*796ment of Counsel prior to deciding the case on the merits, the error is harmless. “An application for post-conviction relief is processed under the Idaho Rules of Civil Procedure,” Downing v. State, 132 Idaho 861, 864, 979 P.2d 1219, 1222 (Ct.App.1999). Harmless error is defined as “any error or defect in the proceeding which does not affect the substantial rights of the parties.” I.R.C.P. 61. Charboneau’s petition failed to provide the court with a sufficient basis to require an evidentiary hearing or grant post conviction relief, and the petition is frivolous. An indigent person is not entitled to appointed counsel if his petition for post-conviction relief is frivolous. I.C. § 19-852(b)(3). Charboneau’s substantial rights have not been violated by the district court’s failure to appoint counsel because he did not have a right to appointed counsel. As such, I dissent from the majority opinion because the district court’s failure to rule on Charboneau’s Motion to Appoint Counsel was harmless.
Chief Justice SCHROEDER concurs.