IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 37939
ANTHONY G. NORMAN, ) 2011 Unpublished Opinion No. 756
)
Petitioner-Appellant, ) Filed: December 23, 2011
)
v. ) Stephen W. Kenyon, Clerk
)
STATE OF IDAHO, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Respondent. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Sixth Judicial District, State of Idaho,
Bannock County. Hon. David C. Nye, District Judge.
Appeal from order summarily dismissing application for post-conviction
relief, dismissed.
Anthony G. Norman, Boise, pro se appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent.
________________________________________________
MELANSON, Judge
Anthony G. Norman appeals from the district court’s order summarily dismissing his
application for post-conviction relief. For the reasons set forth below, we dismiss this appeal.
Norman was charged with and pled guilty to statutory rape. I.C. § 18-6101(1). The
district court imposed a unified sentence of nine years, with a minimum period of confinement of
three years. In an unpublished opinion, this Court affirmed Norman’s judgment of conviction
and sentence. State v. Norman, Docket Nos. 33129 and 33277 (Ct. App. Oct. 15, 2007). In
October 2008, Norman filed a pro se application for post-conviction relief alleging: (1) he was
denied his right to counsel; (2) evidence existed which would require his judgment of conviction
and sentence be vacated; (3) he was denied the proper sex offender evaluations; (4) prosecutors
allowed a witness to testify falsely; (5) the police withheld information which would have been
favorable to his defense; (6) his guilty plea was induced by false promises; and (7) his due
process rights were violated.
1
In March 2008, the district court issued a memorandum decision and notice of intent to
dismiss Norman’s application, to which Norman did not respond. On August 13, 2009, the
district court issued an order summarily dismissing Norman’s application. On September 12,
2009, Norman signed a notice of appeal. The notice of appeal contained a certificate of mailing
indicating it was sent to the Bannock County prosecuting attorney and the Idaho Attorney
General. However, the notice of appeal was not filed with the Bannock County district court
clerk until July 20, 2010. On August 2, 2010, the district court issued an amended order of
dismissal of Norman’s application for post-conviction relief. The amended order stated:
On September 21, 2009, within the time for an appeal, [Norman] signed a Notice
of Appeal. The original of that Notice of Appeal was received by the Bannock
County Prosecutor’s Office on September 29, 2009. The Notice of Appeal was
not filed with this Court until July 20, 2010, when the prosecutor’s office gave it
to the deputy clerk. In an attempt to avoid any timeliness issue regarding the
appeal and to have [Norman’s] appeal decided on the merits, this Court hereby
enters this Amended Dismissal of Post-Conviction Relief Petition. This Amended
Dismissal is based on IRCP 60(b)(6). [Norman] has 42 days from the date of this
Amended Dismissal to properly file a Notice of Appeal with the Clerk of the
Court.
On August 16, 2010, Norman filed an amended notice of appeal reasserting the claims alleged in
his application for post-conviction relief.
Idaho Appellate Rule 14(a) provides that any appeal from the district court may be made
only by physically filing a notice of appeal with the clerk of the district court within forty-two
days from the date on the judgment or order from which the appeal is taken. Pursuant to
I.A.R. 20, a notice of appeal is not deemed filed until it is physically received by the clerk of the
court. The mailbox rule deems a pro se inmate’s document filed as of the date it was submitted
to prison authorities for the purpose of mailing to the court for filing. Munson v. State, 128
Idaho 639, 641, 917 P.2d 796, 798 (1996). See also State v. Lee, 117 Idaho 203, 204, 782 P.2d
594, 595 (Ct. App. 1990) (holding that under the mailbox rule pro se inmate’s documents are
considered filed when they are delivered to prison authorities for the purpose of mailing to the
court clerk). The policy behind the mailbox rule is that, once a prisoner submits documents to
prison authorities for filing with the court, the prisoner no longer has control over his or her
documents. Munson, 128 Idaho at 643, 917 P.2d at 800.
This case is distinguishable from Munson and Lee because, while Munson and Lee
addressed their documents to the clerk of the court, Norman did not. The record indicates that
2
Norman addressed his notice of appeal to the prosecuting attorney and the attorney general. He
did not address his notice of appeal to the clerk of the district court. The notice was finally
delivered to the clerk of the court by the prosecuting attorney, not by the prison mail system.
The mailbox rule does not apply in this case because the reason the notice was not delivered was
that Norman failed to address it properly and not because some other factor, such as the prison
mail system, interfered. In addition, Norman has presented no evidence showing when he placed
the notice of appeal into the prison mail system. Therefore, Norman’s first notice of appeal was
not timely filed with the clerk of the court.
Furthermore, the district court’s amended order of dismissal did not extend the
jurisdictional period in which Norman was required to file his appeal. The state argues the
district court’s reliance on I.A.R. 60(b)(6) was in error. We agree that Rule 60(b)(6) may not be
used to circumvent the time limits of I.A.R. 14. See Hoopes v. Bagley, 117 Idaho 1091, 1094,
793 P.2d 1263, 1266 (Ct. App. 1990). In addition, the Idaho Supreme Court has held that entry
of an amended judgment that is substantively identical to the original judgment does not enlarge
the period for filing an appeal. State v. Ciccone, 150 Idaho 305, 308, 246 P.3d 958, 961 (2010).
When an amended judgment does not alter the material terms from which a party may appeal, its
entry does not serve to enlarge the time for appeal. Id. Thus, the district court’s sua sponte entry
of the amended order of dismissal did not enlarge the time for filing Norman’s appeal. 1
Even if we were to address the merits of the application, Norman did not provide a record
or transcripts from his underlying criminal case in the appellate record. It is the responsibility of
the appellant to provide a sufficient record to substantiate his or her claims on appeal. Powell v.
Sellers, 130 Idaho 122, 127, 937 P.2d 434, 439 (Ct. App. 1997). In the absence of an adequate
record on appeal to support the appellant’s claims, we will not presume error. Id. In addition,
Norman simply restates the claims alleged in his application for post-conviction relief without
providing argument or authority for his claims. A party waives an issue on appeal if either
1
We note that it is the practice in some trial courts to enter an amended judgment of
conviction, identical to the original, when an applicant in a post-conviction case has proven, or
the parties have stipulated, that counsel was ineffective for failure to timely file an appeal. Given
the holding in Ciccone, a better practice might be to enter an order granting the application and
allow time to appeal from the original judgment. However, that question is not before us in this
case and we do not decide it.
3
authority or argument is lacking. State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996).
Therefore, the district court did not err in summarily dismissing Norman’s application for post-
conviction relief.
Norman’s appeal was untimely. We have no jurisdiction and, therefore, dismiss this
appeal. Costs, but not attorney fees, are awarded to the respondent on appeal.
Chief Judge GRATTON and Judge GUTIERREZ, CONCUR.
4
Anthony G. Norman v. State
Combined Opinion