State v. Smothers ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 48125
LOUIS SIMUEL SMOTHERS, )
) Filed: May 26, 2022
Petitioner-Appellant, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
STATE OF IDAHO, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Respondent. )
)
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
Falls County. Hon. Benjamin J. Cluff, District Judge.
Judgment summarily dismissing petition for post-conviction relief, affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Andrea W. Reynolds,
Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Justin R. Porter, Deputy Attorney
General, Boise, for respondent.
________________________________________________
GRATTON, Judge
Louis Simuel Smothers appeals from the judgment summarily dismissing his petition for
post-conviction relief. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2018, the State charged Smothers with two counts of video voyeurism, Idaho
Code § 18-6609(3). Smothers never denied making the video in question, but has continuously
denied sending the video to anyone. Smothers believes the victim in this case framed Smothers
by accessing his Facebook account to send the explicit video. In the end, Smothers pled guilty to
one count of video voyeurism pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), and filed
a guilty plea advisory form in April 2019. A judgment of conviction was entered in June 2019
from which Smothers did not appeal.
1
In October 2019, Smothers filed a pro se petition for post-conviction relief, and the district
court appointed counsel to represent him. Smothers then filed an amended petition for post-
conviction relief alleging three counts of ineffective assistance of counsel for: (1) not investigating
Smothers’ cell phone and the cell phones of the victim and victim’s husband; (2) not contacting
witnesses who had exculpatory evidence; and (3) not filing a motion in limine to exclude the video
at issue. The State filed an answer and a separate motion for summary disposition, arguing
Smothers’ claims were conclusory and did not set forth any facts or evidence to support his
allegations. The State further argued Smothers’ guilty plea advisory form belied and disproved
his ineffective assistance of counsel claims, and the doctrine of waiver applied to Smothers’
petition. The State also submitted an affidavit from the law enforcement officer who investigated
the video voyeurism allegation.
Smothers filed a response and attached supporting affidavits. The district court held a
hearing on the State’s motion for summary disposition and took the matter under advisement.
Subsequently, the district court granted the State’s motion, determining that the record
conclusively disproved Smothers’ claims of ineffective assistance of counsel. Smothers timely
appeals.
II.
STANDARD OF REVIEW
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
2
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
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 v. State, 138 Idaho 269, 272, 61 P.3d 626, 629 (Ct. App. 2002).
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 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).
III.
ANALYSIS
Smothers asserts the district court erred by summarily dismissing his petition. Smothers
made three allegations of ineffective assistance of counsel: (1) failure to obtain digital evidence
from his cell phone and phones belonging to the victim and her husband; (2) failure to investigate
a potential witness; and (3) failure to file a motion in limine to exclude the explicit video police
obtained from the victim’s husband. Smothers contends that he raised a genuine issue of material
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fact as to each claim. He further argues that the State’s motion for summary dismissal did not
include Smothers’ failure to allege prejudice as a basis for summary dismissal such that the district
court’s dismissal on this basis was improper due to lack of notice.
The State claims that the guilty plea advisory form disproves Smothers’ allegations of
ineffective assistance of counsel. The State argues further investigation into digital evidence or
witnesses was unnecessary because Smothers decided to plead guilty, and he confirmed in his
guilty plea form that he was satisfied with his trial counsel’s investigation. At the change of plea
hearing, Smothers testified under oath that there was nothing he wanted his attorney to do that had
not been done. The State also contends that a motion in limine to exclude the video would have
failed under Idaho Rules of Evidence 1002 and 1003. Lastly, the State asserts that Smothers failed
to allege prejudice.
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). The Court will evaluate reasonableness based upon
all the circumstances, and whether counsel’s “acts or omissions were outside the whole range of
professionally competent assistance.” State v. Mathews, 133 Idaho 300, 306, 986 P.2d 323, 329
(1999) (quoting Strickland, 466 U.S. at 690).
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 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).
4
A. Prejudice
The district court dismissed Smothers’ petition for failure to satisfy both the deficient
performance and prejudice prongs of Strickland. As noted, Smothers claims he had no notice that
the petition could be dismissed on the prejudice prong. However, Smothers had notice that his
petition could be dismissed for failure to sufficiently allege prejudice. Post-conviction relief
proceedings are governed by the Idaho Rules of Civil Procedure. Therefore a motion for summary
disposition must state with particularity the grounds for the relief sought. I.R.C.P. 7(b)(1)(B);
DeRushé, 146 Idaho at 601, 200 P.3d at 1150. DeRushé clearly holds that an appellant may not
challenge the sufficiency of the notice contained in the motion for summary disposition, and
accompanying memoranda, for the first time on appeal.1 Id. at 602, 200 P.3d at 1151. However,
DeRushé does not preclude an appellant from asserting for the first time on appeal that his claim
was dismissed without any notice at all. Kelly, 149 Idaho at 522, 236 P.3d at 1282.
In Kelly, the State’s motion for summary dismissal sought dismissal of all claims on the
ground that Kelly had no evidentiary basis to support his claims. Id. at 522, 236 P.3d at 1282. The
State’s memorandum cited the two-prong test established in Strickland and quoted Idaho case law
dealing with ineffective assistance of counsel claims. Kelly, 149 Idaho at 522, 236 P.3d at 1282.
The district court dismissed Kelly’s claim because he had not provided facts to show deficient
performance by his trial counsel. Id. The Idaho Supreme Court held the State’s motion provided
Kelly notice of the ground on which his claim was to be dismissed, “irrespective of whether that
1
Regarding challenges to the sufficiency of the notice, the Idaho Supreme Court has
explained:
To properly preserve this issue for appeal, an applicant would merely have
to raise the issue below so that the district court had an opportunity to rule on it.
For example, where the petitioner for post-conviction relief receives a motion for
summary dismissal and does not feel that the motion for summary dismissal and
accompanying memoranda provides [sic] him with sufficient notice of the grounds
for summary dismissal--under the standard established in DeRushé--he may file a
motion with the district court under I.R.C.P. 7, objecting to the motion for summary
dismissal on the basis that it fails to provide him with sufficient notice. Likewise,
the petitioner could object to the sufficiency of the notice at the summary dismissal
hearing before the district court. Finally, if the district court grants the State’s
motion for summary dismissal, the petitioner may file an I.R.C.P. 11 motion for
reconsideration, citing to DeRushé and arguing that the State’s motion and
accompanying memoranda did not provide sufficient notice.
Kelly v. State, 149 Idaho 517, 522 n.1, 236 P.3d 1277, 1282 n.1 (2010).
5
notice was sufficient (an issue Kelly waived by failing to raise it before the district court) it was
notice nonetheless.” Id.Here, the State’s motion reads: “The State of Idaho hereby moves the court to dismiss the
AMENDED VERIFIED PETITION FOR POST-CONVICTION RELIEF pursuant to Idaho Code
Section 19-4906(c).” The State’s supporting memorandum stated twice: “Mr. Smothers’ answers
and admissions in the GUILTY PLEA ADVISORY FORM disprove his allegation that [trial
counsel] provided ‘ineffective assistance of trial counsel’ to him. [S]ummary disposition is
appropriate ‘if the petitioner’s allegations are disproven by the record of the criminal
proceedings.’” The State’s supporting memorandum includes a section on the applicable law
which sets forth that ineffective assistance of counsel is a two-prong test under Strickland that
requires the petitioner to prove both deficient performance and prejudice. Strickland, 466 U.S. at
687-88; Self, 145 Idaho at 580, 181 P.3d at 506. As to prejudice, the State’s supporting
memorandum correctly defines prejudice as requiring an allegation that there is a reasonable
probability that, but for counsel’s errors, the outcome would have been different, and it further
defines “reasonable probability” within that context. Because the State alleged the evidence
disproved “ineffective assistance of counsel” and not just one of the prongs, Smothers was on
notice that his claim could be dismissed for either deficient performance or prejudice. Similar to
Kelly, the State provided the Strickland standard with some case law that dealt with ineffective
assistance of counsel, including reasonable probability under the prejudice prong.
Next, Smothers conflates notice with argument. He asserts that he did not have notice
because the State did not argue prejudice at the hearing. However, Smothers bears the burden
under Strickland to prove both deficient performance and prejudice and must establish a prima
facie case of ineffective assistance of counsel in order to avoid summary dismissal; that burden is
not dependent upon the State’s argument. The State’s burden is to provide adequate notice in the
motion under I.R.C.P. 7(b)(1). Smothers waived any challenge to the adequacy of the State’s
notice by not raising the issue below in accordance with DeRushé.
Finally, Smothers argues to this Court that he did not address prejudice in his reply to the
State’s motion for summary disposition because he did not have notice. However, the record
shows that Smothers’ reply brief stated under Count I:
When the alleged error of counsel is a failure to investigate or discover
potential exculpatory evidence, the determination of whether the error was
prejudicial depends on whether the evidence would have led counsel to change his
6
recommendation as to the plea. . . . The chances would have at least increased
enough to have led counsel to change her recommendation as to the plea.
(Emphasis added.)
Further, under Count III, Smothers states: “By not even attempting to exclude this
unreliable--potentially fabricated--evidence, trial counsel’s performance was deficient and
prejudicial to Mr. Smothers because he was left with no choice but to plead guilty pursuant to
North Carolina v. Alford.” (Emphasis added.) Finally, in the CONCLUSION, Smothers states:
“Here, the Petitioner has raised genuine issues of material fact concerning both the alleged
deficiencies of trial counsel’s investigation and the alleged resulting prejudice.” (Emphasis
added.) Smothers was on notice that prejudice is required to establish ineffective assistance of
counsel and that his claim could be dismissed for failing to adequately allege prejudice as
evidenced by the State’s memorandum in support of summary dismissal and in Smothers’ response
to the State’s motion.
Smothers failed to identify anything in his petition alleging a genuine issue of material fact
as to prejudice. Moreover, his response to the State’s motion was inadequate in this regard since,
even assuming he could adequately raise an allegation in his response, asserting that the “chances
would have at least increased enough to have led counsel to change her recommendation as to the
plea” does not show, but for the alleged deficiencies, there was a reasonable probability that he
would not have pled guilty and would have instead proceeded to trial. Therefore, Smothers failed
to satisfy the second Strickland prong, and the district court correctly dismissed the petition on this
ground.
B. Deficient Performance
The district court individually addressed each of the three claims raised by Smothers and
in so doing found generally that the claims were belied by the record of the underlying criminal
proceedings. The district court noted Smothers’ answers to the following questions on the guilty
plea advisory form: 2
2
Although the district court took judicial notice of the guilty plea advisory form, the form
itself is not part of the record on appeal. It is the responsibility of the appellant to provide a
sufficient record to substantiate his or her claims on appeal. State v. Murinko, 108 Idaho 872, 873,
702 P.2d 910, 911 (Ct. App. 1985). In the absence of an adequate record on appeal to support the
appellant’s claims, we will not presume error. State v. Beason, 119 Idaho 103, 105, 803 P.2d 1009,
1011 (Ct. App. 1991). Rather, missing portions of the record must be presumed to support the
action of the trial court. Grant v. State, 156 Idaho 598, 605 n.5, 329 P.3d 380, 387 n.5 (Ct. App.
7
59. Have you told your attorney everything you know about your case? YES
60. Is there anything you have requested your attorney do that has not been
done? NO
61. Your attorney can obtain various items from the prosecutor relating to your
case. This may include police reports, witness statements, tape recordings,
photographs, reports of scientific testing, etc. This is called “discovery.”
Have you reviewed the evidence provided to your attorney during
discovery? YES
62. Are there any additional items you want to view before entering guilty plea?
NO
63. Do you want your attorney to undertake further investigation of your case?
NO
64. Has your attorney properly or adequately investigated your case? YES
....
69. Are you satisfied with your attorney’s representation? YES
The district court found that Smothers testified to the following at his change of plea
hearing:
[T]hat he told his attorney everything he knew about his case; that there was not
anything he had requested his attorney do that had not been done; that he had
reviewed all discovery; that were [sic] not any additional items he wanted to view
before entering guilty plea; that he did not want his attorney to undertake further
investigation of his case; that his attorney had properly and adequately investigated
his case; and, that he was satisfied with his attorney’s representation.
Lastly, the district court found “[t]he record in the underlying criminal case conclusively
proves that [Smothers] wanted to plead guilty, and that [Smothers’] plea was knowingly and
voluntarily given.” The district court held: “[Smothers’] oral responses to the Court while under
oath at his change of plea hearing, combined with his written responses contained in the [guilty
plea advisory form] which he testified were truthful, conclusively disprove the allegations
contained in the Petition and supporting affidavits.”
This Court’s decision in Campos v. State, 165 Idaho 90, 438 P.3d 787 (Ct. App. 2019), is
instructive. In that case, Campos alleged in his post-conviction petition that counsel told Campos
to lie to the district court during the plea hearing and that any errors regarding his sentence would
be corrected later during sentencing or through an Idaho Criminal Rule 35 motion. Id. at 93, 438
P.3d at 790. His petition asserted his guilty plea was not knowing, voluntary, and intelligent, and
that there was a reasonable probability he would have rejected the plea agreement if he had known
2014). Our representations of what the guilty plea form indicates is based upon the district court's
order dismissing Smothers’ petition.
8
about the sentencing error. Id. Even so, the record showed Campos made “numerous assurances
that he understood the terms of his plea agreement in the guilty plea advisory form.” Id. He also
handwrote terms of the plea agreement, answered pertinent questions, and initialed next to
explanatory paragraphs, all of which demonstrated his understanding. Id. at 93-94, 438 P.3d at
790-91. Additionally, Campos swore under oath that his responses in the guilty plea advisory form
were true and correct. Id. at 94, 438 P.3d at 791. This Court ruled:
[T]his is exactly the situation where the appellate courts have held that the post-
conviction claims are belied by the record and subject to summary dismissal.
Without more, the district court is not . . . required to conduct an evidentiary hearing
to determine which of Campos’ contrary statements is more credible.
Id. (internal citations omitted).
As set forth more fully below, the district court correctly found that Smothers’ claims of
deficient performance by counsel are disproved by the record.
1. Phone records
Smothers claims his trial counsel was deficient for failing to obtain records from Smothers’
cell phone and the phones belonging to the victim and her husband because Smothers told his trial
counsel he believed the alleged victim remotely accessed Smothers’ phone. Smothers alleges the
phone records would have shown: a remote login notification from the relevant time period; no
outgoing messages containing pornographic videos from Smothers’ IP address; and incriminating
messages and metadata on the phones belonging to the alleged victim and her husband. The only
evidence provided by Smothers was his affidavit, which stated only that “on or about October 31,
2018, I received a Google security alert on one of the two phones seized by the police in the
underlying criminal case; [t]hat I took a screen shot of the Google security alert.”
The district court accepted that Smothers received a Google security notification but noted
the nature of the notification was unclear and the relevance questionable. The district court
concluded: “[Smothers’] sworn testimony that he received all the help he wanted from his attorney
prior to entry of his plea conclusively proves that further investigations by his attorney into phone
records were unnecessary. Therefore, [Smothers’] attorney was not deficient by not obtaining
additional phone records.”
The district court was correct to find that there was no genuine issue of material fact that
Smothers’ trial counsel was deficient. Smothers was undoubtedly aware of this evidence prior to
his guilty plea because he reported that he took a screenshot. For that reason, when he chose to
9
plead guilty he did so with knowledge of this potential defense and evidence. Moreover, Smothers
testified that at the time of his guilty plea he had received all the help he wanted from his attorney.
Smothers also testified that his attorney had properly and adequately investigated Smothers’ case.
Now Smothers attempts to argue his attorney should have done more. Smothers’ sworn testimony
and guilty plea advisory form contradict that notion. Moreover, Smothers did not provide the
district court with any of the phone records or the screenshot.
Similar to Campos, Smothers’ current allegation, with no new evidence,3 is belied by the
record, and the district court did not need to conduct an evidentiary hearing to determine which
statement is more credible.
2. Witness
Smothers next argues his trial counsel was ineffective for failing to investigate a potential
witness.4 Smothers provided an affidavit from the potential witness that stated:
[S]omebody from the Public Defender’s Office contacted me regarding CR42-18-
12748, but did not follow up with me; That if [Smothers’] attorney had followed
up with me, I could have provided a digital message sent from [the victim] in the
days leading up to [Smothers’] arrest that had an explicit video of her as an
attachment followed by the text: “haha I just put your friend in jail.”
Smothers argues this evidence supports his theory that he was framed by the victim and in turn
creates a genuine issue of material fact as to trial counsel’s deficient performance because trial
counsel did follow up with the potential witness.
The district court accepted as true Smothers’ allegation that the public defender’s office
contacted the potential witness one time but did not further follow up. However, the district court
did not accept as true the contents of the alleged text was inadmissible as hearsay. And the
purported text message was not submitted to the district court with the potential witness’s affidavit.
Based upon the foregoing findings the district court held: “While some investigation is necessary
3
Smothers never argues that he did not knowingly, voluntarily, or intelligently enter into the
guilty plea nor does he provide any evidence to suggest as much. See State v. Gonzales, 158 Idaho
112, 116, 343 P.3d 1119, 1123 (Ct. App. 2015) (“A guilty plea operates as a waiver of important
rights, and is valid only if done voluntarily, knowingly, and intelligently, ‘with sufficient
awareness of the relevant circumstances and likely consequences.’”).
4
In his petition, Smothers also alleged counsel was ineffective for failing to contact an
additional witness. The district court dismissed this claim, and Smothers does not pursue it on
appeal.
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to help a client decide whether to plead guilty, it is well within the bounds of competency for an
attorney to contact a witness a single time prior to entry of a voluntary guilty plea.”
The district court was correct to find trial counsel’s conduct was reasonable based upon the
circumstances. First, the public defender’s office did reach out to the potential witness. That trial
counsel did not follow up with the potential witness was not deficient because Smothers chose to
plead guilty and there is no indication that the potential witness advised the public defender’s
office that she had any relevant information. The potential witness’s affidavit only indicates that
she would have provided the alleged text if someone had followed up with her; she did not allege
that she shared any pertinent information when first contacted that would indicate any follow-up
was warranted. Second, Smothers confirmed to the trial court at the time of his guilty plea that he
did not want any further investigation conducted, and his attorney’s investigation was adequate.
Nevertheless, that evidence is inadmissible, and without it, Smothers is simply arguing that trial
counsel should have contacted the potential witness again. Smothers’ claim that counsel was
ineffective in relation to potential witness fails to raise a genuine issue of material fact and is belied
by the underlying criminal record.
3. Motion in limine
Finally, Smothers argues his trial counsel was ineffective for failing to file a motion in
limine to exclude the explicit video obtained by the police from the victim’s husband. Smothers
contends the original video was never provided to police, and without the video in evidence the
State would have had a difficult time proving guilt.
The district court found:
Because the record in the underlying criminal case shows that [Smothers] did not
want his attorney to do anything else prior to his guilty plea, the necessity of his
attorney filing such motion is conclusively disproven. A reasonable attorney may
choose to not file a motion in limine, even one likely to be granted, for a client who
is desirous of pleading guilty and voluntarily waiving the right to file further
motions.
Since attorneys may reasonably choose to not file potentially successful
motions in cases such as [Smothers’], the potential success of the motion never filed
by [Smothers’] trial counsel is irrelevant. Therefore, the Court need not analyze
whether such a motion would have been successful.
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We agree that the claim is belied by the record.5
In summary, Smothers has failed to demonstrate a genuine issue of material fact as to any
of his allegations of ineffective assistance of counsel. As such, the district court did not err when
it granted the State’s motion for summary dismissal.
IV.
CONCLUSION
Smothers has failed to show error in the summary disposition of his ineffective assistance
of counsel claims. Accordingly, the district court’s judgment summarily dismissing Smothers’
petition for post-conviction relief is affirmed.
Chief Judge LORELLO and Judge BRAILSFORD CONCUR.
5
Additionally, the State demonstrated that in response to such a motion to exclude, it would
have been able to lay foundation for the video with the victim confirming her identity in the video
and her husband testifying to his receipt of the video and how he provided the video to officers.
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