Foster v. State

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 48422

ADAM DEACON FOSTER, )
) Filed: November 17, 2021
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) THIS IS AN UNPUBLISHED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 First Judicial District, State of Idaho, Bonner
County. Hon. Barbara Buchanan, District Judge.

Judgment summarily dismissing petition for post-conviction relief, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Ben P. McGreevy, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.
________________________________________________

HUSKEY, Chief Judge
Adam Deacon Foster appeals from the district court’s judgment summarily dismissing his
petition for post-conviction relief. Foster alleges the district court erred by taking judicial notice
of the entire case file from the underlying criminal case. Because Foster did not preserve his claim
regarding judicial notice for appeal, the district court’s judgment summarily dismissing Foster’s
petition for post-conviction relief is affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Foster pleaded guilty to two counts of attempted murder with an infliction of great bodily
injury enhancement. For each charge, the district court imposed a unified term of incarceration of
twenty-five years, with twelve-and-one-half years determinate, to run consecutively to each other.
Foster filed a petition for post-conviction relief alleging his trial counsel was ineffective by failing

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to introduce mitigating evidence during sentencing and failing to obtain a second opinion on
Foster’s mental health before Foster entered his guilty plea.
The district court appointed post-conviction counsel to represent Foster. Counsel provided
notice that no amended petition would be filed, and the State filed a motion for summary
disposition. Subsequently, Foster filed a synopsis of facts and timeline and requested a reduction
in sentence.
The district court took judicial notice of the record in Foster’s underlying criminal case and
granted the State’s motion for summary disposition. The district court found that the record
disproved Foster’s claims of ineffective assistance of counsel and that Foster’s claim of a
misdiagnosed mental illness was not supported by evidence. The district court entered judgment
dismissing Foster’s petition for post-conviction relief. Foster timely appealed.
II.
STANDARD OF REVIEW
Generally, issues not raised below may not be considered for the first time on appeal. State
v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). To properly preserve an issue for
appellate review, both the issue and the party’s position on the issue must be raised before the trial
court. State v. Hoskins, 165 Idaho 217, 222, 443 P.3d 231, 236 (2019).
III.
ANALYSIS
On appeal, Foster asserts the district court erred by taking judicial notice of the record
without complying with the specificity requirement of Idaho Rule of Evidence 201(c). In response,
the State asserts Foster’s argument was not preserved for appeal because Foster did not raise the
claim in the district court. Foster acknowledges that the Idaho Supreme Court’s recent decision in
State v. Neimeyer, 169 Idaho 9, 14, 490 P.3d 9, 14 (2021) controls whether the issue has been
preserved. In Neimeyer, the defendant argued on appeal that the district court erred by taking
judicial notice of a municipal ordinance. Id. at 13, 490 P.3d at 13. The Idaho Supreme Court
explained that the district court did not have the opportunity to address the issue below because
the defendant did not object to the district court’s reliance on the ordinance or testimony
concerning the ordinance. Id. at 14, 490 P.3d at 14. Accordingly, the Court held that because the
challenge was not raised in the trial court, the issue concerning judicial notice was not preserved
for appeal. Id.

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Similar to Neimeyer, Foster did not object when the district court took judicial notice of
the underlying record and, thus, the district court did not have an opportunity to address the issue.
Consequently, the issue was not preserved for appellate review. As there is no issue for this Court
to review, the district court’s judgment summarily dismissing Foster’s petition for post-conviction
relief is affirmed.
IV.
CONCLUSION
Foster’s only argument on appeal was not preserved. Accordingly, the district court’s
judgment summarily dismissing Foster’s petition for post-conviction relief is affirmed.
Judge GRATTON and Judge BRAILSFORD CONCUR.

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