Bowman v. State

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 50160

STEVEN KENNETH BOWMAN, )
) Filed: June 20, 2024
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) THIS IS AN UNPUBLISHED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 Fourth Judicial District, State of Idaho, Ada
County. Hon. Cynthia Yee-Wallace, District Judge.

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

Nevin, Benjamin & McKay, LLP; Dennis Benjamin, Boise, for appellant.

Hon. Raúl R. Labrador, Attorney General; Kale D. Gans, Deputy Attorney General,
Boise, for respondent.
________________________________________________

MELANSON, Judge Pro Tem
Steven Kenneth Bowman appeals from a judgment summarily dismissing his petition for
post-conviction relief. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In Bowman’s underlying criminal case, he was charged with aggravated battery.
I.C. §§ 18-903(a), 18-907, 18-204, and 19-2520F. His case was initially consolidated with that of
a codefendant. The information filed April 27, 2017, alleged that Bowman caused great bodily
harm to another with a razor blade or similar weapon while housed at a correctional facility. A
preliminary hearing was set for June 8, 2017; was reset for June 28, 2017; and was finally held on
July 25, 2017. Bowman was bound over to the district court. Initially, Bowman and his
codefendant were represented by the public defender’s office. After the preliminary hearing,
conflict counsel was appointed to represent Bowman. Bowman waived a formal reading of the
charge, pled not guilty, and was informed of the possible consequences if a jury found him guilty
of the alleged offense. Thereafter, the State filed an Information Part II alleging Bowman to be a
persistent violator of the law. I.C. § 19-2514.
Bowman’s case proceeded to a trial, and he was found guilty of aggravated battery and
admitted to being a persistent violator. The trial court sentenced Bowman to a unified term of
thirty years, with a minimum period of confinement of twelve years, to run consecutively to his
other sentences. The judgment of conviction was affirmed by this Court in an unpublished opinion.
See State v. Bowman, Docket No. 46332 (Ct. App. Dec. 4, 2019).
Bowman filed a pro se petition for post-conviction relief1 and counsel was appointed.
Based on stipulation of the parties and the new appointment of counsel, Bowman filed an amended
petition for post-conviction relief alleging several instances of ineffective assistance of counsel.
The State filed a motion for summary dismissal, to which Bowman filed an objection. The district
court held a hearing and granted the State’s motion for summary dismissal. Bowman appeals.2
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, 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

1
Bowman actually filed a document entitled “Motion of Notice Seeking Post-Conviction
Relief.” The district court did not treat this document as a petition, but the State filed responsive
pleadings and the matter proceeded on an amended petition after counsel was appointed for
Bowman.
2
Bowman’s opening brief does not comply with I.A.R 35 which requires that a concise
statement of the facts in the “statement of the case” section of the brief be included. Bowman
instead added facts to individual analysis sections.

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statement of the claim that would suffice for a complaint under I.R.C.P. 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 Section 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
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

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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
Bowman presents three issues on appeal, arguing that the district court erred in dismissing
his ineffective assistance of counsel claims. Specifically, Bowman argues that his preliminary
hearing attorney was ineffective for informing Bowman of a plea offer from the State only five
minutes before the preliminary hearing, which offer would be withdrawn if the case proceeded to
a hearing; that his preliminary hearing attorney was ineffective for failing to inform Bowman that
the State would file a persistent violator allegation (Information Part II) if he did not accept the
offer; and, that his trial counsel was ineffective for advising him to proceed to trial based on trial
counsel’s erroneous understanding of applicable law and failing to explain to Bowman the
consequences of pleading guilty to the Information Part II.
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,

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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). To establish prejudice, the petitioner must show a
reasonable probability that, but for the attorney’s deficient performance, the outcome of the trial
would have been different. Aragon, 114 Idaho at 761, 760 P.2d at 1177; Knutsen, 144 Idaho at
442, 163 P.3d at 231. 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). The
constitutional requirement for effective assistance of counsel is not the key to the prison for a
defendant who can dredge up a long series of examples of how the case might have been tried
better. Ivey v. State, 123 Idaho 77, 80, 844 P.2d 706, 709 (1992); Thomas v. State, 145 Idaho 765,
770, 185 P.3d 921, 926 (Ct. App. 2008).
A. Plea Offer
Bowman argues that his preliminary hearing attorney was ineffective for failing to consult
with Bowman regarding a plea offer from the State until five minutes before his preliminary
hearing. He argues this prejudiced him because, if he had more time to consider the plea offer
from the State, he would have agreed to plead guilty prior to the preliminary hearing and received
a lesser sentence. In support of his argument, Bowman compares his sentence with that of his
codefendant who pled guilty and received a lesser sentence than Bowman. Bowman argues that,
if he had agreed to plead guilty prior to the preliminary hearing, his sentence would be more like
that of his codefendant. The district court dismissed this claim for Bowman’s failure to present
any admissible evidence that his preliminary hearing attorney failed to present the offer to
Bowman and to explain the offer would be revoked if not accepted before the case proceeded to
the preliminary hearing.
Bowman relies on the United States Supreme Court’s statement of the general rule that
defense counsel fails to render effective assistance when counsel does not allow the defendant to
consider a plea agreement offered by the prosecution. See Missouri v. Frye, 566 U.S. 134, 145
(2012) (holding that defense counsel rendered deficient performance by failing to consult with the

5
defendant regarding the State’s offers before their expiration over a month after they were
proffered to defense counsel). Bowman also relies on Idaho Rule of Professional Conduct 1.4(a)
that provides an attorney must “promptly inform the client of any decision or circumstance with
respect to which the client’s informed consent” is required. Bowman also references the
commentary to that rule which provides that an attorney who receives a proffered plea bargain in
a criminal case must promptly inform the client of its substance. Bowman argues that his
preliminary hearing attorney’s performance was deficient under Frye because the plea offer was
not relayed to him until five minutes before it expired, thereby making him unable to consider it
before the hearing at which point the offer expired if it was not accepted. Additionally, Bowman
argues that, because he believes the plea offer was communicated to his preliminary hearing
attorney well before the preliminary hearing, his preliminary hearing attorney violated the Idaho
Rules of Professional Conduct by not promptly informing Bowman of the plea offer.
The State argues that, because the record does not reflect when the State presented
Bowman’s preliminary hearing attorney with the plea offer, there was no evidence from which to
conclude that Bowman’s preliminary hearing attorney acted unreasonably by communicating the
offer to Bowman five minutes before the preliminary hearing. Further, the State argues that many
of Bowman’s arguments are speculative: whether the State would have filed the persistent violator
enhancement before Bowman entered his plea if he accepted the plea offer, whether the trial court
would have accepted the offer, or whether Bowman would have accepted the offer if given more
time before the preliminary hearing. We agree that Bowman failed to present sufficient evidence
to survive summary dismissal of his claim.
To avoid summary dismissal, a post-conviction claim of ineffective assistance of counsel
must sufficiently allege facts under both prongs of the Strickland test. Roman, 125 Idaho at 649,
873 P.2d at 903. Facts must be in the form of competent, admissible evidence; bare assertions and
speculation, unsupported by the facts, are insufficient. Id. Bowman’s case is distinguishable from
Frye, on which he relies, regarding timeliness because the defendant in Frye was never notified of
any plea offers from the State before the offers expired. Bowman, however, concedes that he was
notified of the offers before the preliminary hearing. Further, Bowman failed to provide more than
unsupported speculative assertions regarding the time his preliminary hearing attorney received
the State’s plea offer.

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Bowman fails to cite the record or transcript indicating when his preliminary hearing
attorney was tendered the plea offer from the State. Rather, Bowman only concludes that,
considering there were three months between the charging date and the preliminary hearing date,
it is a reasonable inference that the offer was tendered well before the day of the preliminary
hearing. He asserts that a further reasonable inference would be that the State made the offer
before the original preliminary hearing date--June 8. Bowman’s arguments are speculative. It is
just as probable that the State proffered the plea agreement to preliminary hearing counsel
immediately preceding the moment Bowman was notified of the plea offer. We cannot presume
deficient performance based on Bowman’s speculative assertions.
Furthermore, Bowman has not shown prejudice caused by the disclosure of the plea offer
prior to its withdrawal. The Supreme Court in Frye held that prejudice must be shown by a
reasonable probability that had the plea offer been accepted by the defendant, the State would not
have changed the offer, and the trial court would not have rejected the offer. Frye, 566 U.S. at
147. The Supreme Court held that the defendant later pleading guilty to a less favorable outcome
demonstrated a reasonable probability that he would have accepted the offers that were not relayed
to him. However, Bowman did not plead guilty but, rather, proceeded to trial. Bowman asks this
Court to speculate that he would have accepted the offer prior to the preliminary hearing if he were
able to consider the offer longer, but there is no evidence that the State would have given him more
time to consider the offer. Bowman has not alleged competent facts and admissible evidence to
satisfy his burden under Roman.3
B. Persistent Violator Enhancement (Information Part II)
Bowman argues that his preliminary hearing attorney’s failure to inform Bowman of the
possibility of the State filing the persistent violator enhancement was deficient performance.
Bowman supports this argument by concluding that, if he knew at the time of entering a not guilty

3
We note that Bowman could have pled guilty at any time had he wished to do so.
Expiration of the State’s offer would not prevent Bowman from pursuing the same or a similar
resolution prior to trial.

7
plea4 that the State would have filed the persistent violator enhancement, he would not have
proceeded to trial but would have pled guilty. Bowman argues that he was prejudiced by being
sentenced to thirty years (for aggravated battery with the persistent violator enhancement) rather
than the maximum sentence for aggravated battery--fifteen years. He argues that “counsel would
have been aware” that Bowman “had six prior felonies” and that he “would have followed the path
of his co-defendant” and received less determinate time. Bowman asserts that the State regularly
presents plea offers to defendants at the preliminary hearing stage so that, if accepted, the State
will not have to subpoena witnesses and prepare for trial. Conversely, Bowman asserts that if the
defendant does not agree to the plea offer then the State will file a persistent violator enhancement.
Bowman’s argument would require us to speculate that his preliminary hearing attorney
knew the State would file the persistent violator enhancement several months later, and that
Bowman would have accepted the State’s offer if he knew of this possibility. Not only is this
assertion speculative, it is also contradicted by the available evidence. Bowman has failed to show
a reasonable probability that, had he known about the possibility of the State filing the
enhancement, he would have agreed to waive the preliminary hearing and plead guilty and would
have received a lesser sentence.
Bowman also argues that his trial counsel’s performance was deficient because Bowman
was not formally arraigned on the persistent violator enhancement and that if he had been
arraigned, he would have pled guilty to the substantive charge and the enhancement and that there
is a reasonable probability he would have received a lesser sentence for taking responsibility. The
district court found, and the State does not dispute, that there is no evidence that Bowman was
formally arraigned on the persistent violator enhancement. However, it is clear from the transcript
that Bowman understood the possible sentencing outcomes before he admitted to the enhancement.
Prior to admitting to being a persistent violator, Bowman was informed by the trial court of the
minimum sentence of five years if he was convicted and the maximum term of life imprisonment

4
Bowman’s preliminary hearing attorney was not representing him when he entered a not
guilty plea. It appears that this part of Bowman’s argument relates to his preliminary hearing
attorney’s alleged failure to inform him that the State could file a persistent violator enhancement
if he did not accept the offer made prior to the preliminary hearing.

8
as well as his right to place the burden on the State to prove the enhancement beyond a reasonable
doubt. Bowman acknowledged that he did not need more time to talk to his attorney, waived his
right to require the State to prove the enhancement, acknowledged the minimum sentence of an
additional five years and maximum possible sentence of life in prison, and admitted to being a
persistent violator of the law. The district court dismissed this claim for failure to show prejudice.
Although Bowman was not arraigned on the enhancement, he has made no more than
speculative conclusory statements that an arraignment or formal reading prior to trial would have
caused him to plead guilty and that the trial court would have imposed a lesser sentence. Further,
this argument is unrelated to the deficient performance Bowman argues on appeal. On appeal,
Bowman argues that the deficient performance occurred prior to the preliminary hearing. The
absence of an arraignment for the Information Part II is irrelevant to the deficient performance
alleged because the State did not file the persistent violator enhancement until several months after
the preliminary hearing. The district court did not err in dismissing this claim.
C. Ineffective Assistance of Trial Counsel
In his amended petition, Bowman alleged that he “advised his trial counsel of his desire to
plead guilty, based on the strength of the[S]tate’s case in light of the breadth of Idaho’s law on
complicity” but asserts that, “based on an obvious misunderstanding of the law, his trial attorney
advised against any plea offer on the erroneous basis that [Bowman’s] conduct could not be
covered by the aiding and abetting statute.” Bowman’s amended petition also alleges “trial counsel
received an extra $20,000.00 in payment for proceeding to trial” and that “trial counsel did not
adequately understand Idaho’s law regarding accomplice liability.” Finally, Bowman’s amended
petition alleges that if he had been properly advised, “he would not have proceeded to trial and
would have accepted the [State’s] offer.” Bowman asserts that relief should be granted based on
these allegations because, even if he entered an unconditional guilty plea, he would have ultimately
received a lesser sentence. Bowman concludes that, if he had pled guilty rather than going to trial,
his sentence would be more similar to his codefendant who received a lesser sentence.5

5
Bowman’s codefendant pled guilty before trial without an offer from the State and received
a unified sentence of thirty years, with a minimum period of confinement of seven years. Bowman
speculates that he would have received a lesser sentence than his codefendant because the
codefendant was “more culpable in the crime” than Bowman.

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The State argues that, at the time trial counsel was representing Bowman, there is nothing
in the record to suggest that his sentence would have been less or comparable to his codefendant
had he pled guilty. There is no evidence that a plea agreement was proffered after the preliminary
hearing and before trial or any other evidence to show Bowman’s sentence would have been less.
On reply, Bowman argues that, had he received competent legal advice, he would have pled guilty
at any point before the persistent violator enhancement was filed (even without a plea offer from
the State) and would not have been subject to the additional fifteen-year persistent violator
enhancement. Even assuming the advice from trial counsel was deficient performance, Bowman’s
arguments fail on two accounts. Bowman cannot show that he was prejudiced by going to trial
because his codefendant’s sentence is irrelevant, and Bowman does not cite to the record to show
an essential aspect of his claim--when the purported deficient performance occurred.
First, this Court will not engage in an exercise of comparative sentencing. State v.
McFarland, 130 Idaho 358, 365, 941 P.2d 330, 337 (Ct. App. 1997); State v. Pederson, 124 Idaho
179, 183, 857 P.2d 658, 662 (Ct. App. 1993); State v. Smith, 123 Idaho 290, 294, 847 P.2d 265,
269 (Ct. App. 1993). It is well settled that not every offense in like category calls for identical
punishment; there may properly be a variation in sentences between different offenders, depending
on the circumstances of the crime and the character of the defendant in his individual case.
Pederson, 124 Idaho at 183, 857 P.2d at 662.
Second, Bowman cites to the United States Supreme Court’s holding that, when a petitioner
alleges inaccurate legal advice, it must be shown that there is a reasonable probability that, but for
the deficient performance, the outcome of the plea process would have been different with
competent advice. See Lafler v. Cooper, 566 U.S. 156, 163 (2012). Bowman spends much of his
brief explaining the timeline of the case without citing when the alleged deficient performance
occurred. Bowman does not allege, and the record does not suggest, at what point in the case trial
counsel gave Bowman the advice regarding the accomplice liability theory. Rather, Bowman only
alleges the conversation occurred “prior to trial.” However, on reply, Bowman specifies the
sentence would not have been subject to the enhancement if Bowman had pled guilty before the
filing of the enhancement nearly five months before trial. Bowman does not assert, and we will
not speculate, that the advice was given before the filing of the enhancement as such advice was
just as likely given between the filing of the enhancement and the date of trial.

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Bowman’s assertion that trial counsel advised against accepting any plea offer based on
trial counsel’s misunderstanding of the law fails to allege an essential element--that a plea offer
was proffered from the State while trial counsel represented Bowman. Bowman does not allege
that any plea offer was available to him at any point when trial counsel represented him. Rather,
the only plea offer mentioned in the record expired before the preliminary hearing and before trial
counsel filed a notice of appearance. Bowman has failed to show error in the summary dismissal
of his ineffective assistance of counsel claims.
IV.
CONCLUSION
Bowman failed to meet his burden to show that his preliminary hearing attorney rendered
ineffective assistance by providing the State’s plea offer to Bowman before the preliminary hearing
or by failing to instruct Bowman that the State could later file a persistent violator enhancement.
Bowman also failed to meet his burden to show trial counsel rendered ineffective assistance by
providing inaccurate advice regarding proceeding to trial. Thus, the judgment summarily
dismissing Bowman’s petition for post-conviction relief is affirmed.
Chief Judge GRATTON and Judge LORELLO, CONCUR.

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