Andrus v. State

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 50640

LAWRENCE SCOTT ANDRUS, )
) Filed: November 8, 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) THIS IS AN UNPUBLISHED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 Fifth Judicial District, State of Idaho, Twin
Falls County. Hon. Roger B. Harris, District Judge.

Judgment dismissing amended successive petition for post-conviction relief,
affirmed.

Lawrence Scott Andrus, Boise, pro se appellant.

Hon. Raúl R. Labrador, Attorney General; Mark W. Olson, Deputy Attorney
General, Boise, for respondent.
________________________________________________

LORELLO, Judge
Lawrence Scott Andrus appeals from the judgment dismissing his amended successive
petition for post-conviction relief. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In 2014, officers were dispatched to a bridge based on a report that Andrus intended to end
his own life. Andrus was placed in protective custody and transported to a hospital. At the
hospital, Andrus stated he was not suicidal and admitted to drinking a half-pint of vodka earlier
that day. Andrus was subsequently placed under arrest for providing false information to an officer
and was transported to the county jail. During transport, the officer noted that Andrus smelled like
alcohol. Based upon the officer’s observations and Andrus’s prior admissions that he was

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intoxicated and drove himself to the bridge, the officer conducted field sobriety tests, which
Andrus failed. Andrus provided breath samples that showed his blood alcohol content was 0.247
and 0.248.
Andrus was initially charged with excessive misdemeanor driving under the influence
(DUI). After discovering Andrus’s prior DUI convictions, the State amended the charge to felony
DUI.1 Andrus was found guilty after a jury trial. Andrus challenged his sentence and the denial
of his I.C.R. 35 motion, which this Court affirmed in an unpublished opinion. See State v. Andrus,
Docket No. 42878 (Ct. App. Jan. 14, 2016). Thereafter, Andrus filed a petition for post-conviction
relief. The district court summarily dismissed Andrus’s petition. Andrus appealed and this Court
affirmed the district court’s summary dismissal order in an unpublished opinion. See Andrus v.
State, Docket No. 44686 (Ct. App. Jan. 24, 2018).
While his post-conviction appeal was pending, Andrus filed a motion for relief from
judgment pursuant to I.R.C.P. 60(b)(6), which the district court denied. Andrus appealed, and this
Court reversed the district court’s denial and remanded the matter for further proceedings. See
Andrus v. State, 164 Idaho 565, 570, 433 P.3d 665, 670 (Ct. App. 2019). On remand, Andrus filed
an amended I.R.C.P. 60(b) motion and a motion to amend his original petition for post-conviction
relief, both of which the district court granted. Andrus filed an amended petition for post-
conviction relief alleging various instances of ineffective assistance of trial counsel. Following an
evidentiary hearing and briefing by the parties, the district court denied Andrus’s amended petition.
Andrus appealed and this Court affirmed the district court’s order denying Andrus’s amended
petition for post-conviction relief in an unpublished opinion. See Andrus v. State, Docket
No. 47805 (Ct. App. June 1, 2021).
In 2022, Andrus filed a successive petition for post-conviction relief. The State moved for
summary dismissal of Andrus’s successive petition. Before the district court could rule on the
State’s motion, Andrus amended his successive petition. Andrus’s amended successive petition
raised a single claim: that Andrus’s trial counsel from 2014 was ineffective for failing to move to
suppress evidence in his underlying criminal case pursuant to the reasoning of State v. Clarke, 165

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Andrus was also charged with failure to purchase a driver’s license, I.C. § 49-301; violation
of a no-contact order, I.C. § 18-920; and providing false information to an officer, I.C. § 18-5413.
Andrus’s felony DUI charge was ultimately severed from the other charges.

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Idaho 393, 446 P.3d 451 (2019) (holding that the Idaho Constitution prohibits warrantless arrests
for misdemeanor offenses not committed in the officer’s presence). The district court held a
hearing on Andrus’s amended successive petition. Neither party presented evidence at the hearing.
Following the hearing, the district court entered an order dismissing Andrus’s amended successive
petition for post-conviction relief. The district court presumed for purposes of its order that
Andrus’s amended successive petition was timely and determined: (1) Andrus’s claim was barred
by I.C. § 19-4908 because he could have raised it in the course of his original post-conviction
proceeding; and (2) Andrus failed to show he was entitled to relief on the merits of his claim
because any motion to suppress filed by his trial counsel would have been unsuccessful.2 Andrus
appeals.
II.
STANDARD OF REVIEW
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 v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). Over questions
of law, we exercise free review. Rhoades v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068
(2009); Downing v. State, 136 Idaho 367, 370, 33 P.3d 841, 844 (Ct. App. 2001).
III.
ANALYSIS
Andrus contends the district court erred in dismissing his amended successive petition for
post-conviction relief. Specifically, Andrus argues “the State interfered with the substantive right
[he] had to the suppression of evidence from an unlawful arrest” and that, as a result, he

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Andrus argued his successive petition was timely because it was filed within one year of
“the determination of a proceeding following an appeal” as allowed by I.C. § 19-4902. The district
court was not convinced that the one-year statute of limitation outlined in I.C. § 19-4902 “was
automatically extended and/or that I.C. § 19-4908 allows for a successive post-conviction
petition,” because a successive petition was filed within one year of the remittitur on the Court of
Appeals’ decision, which affirmed the denial of Andrus’s original post-conviction petition.
However, because neither party disputed that Andrus’s 2016 post-conviction petition was timely
or argued that this Court’s remittitur was issued on the appeal of that case in 2021, the district court
accepted Andrus’s successive petition as timely for purposes of its decision.

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“demonstrated he was denied effective assistance of counsel.” The State responds that the record
and applicable law supports the district court’s dismissal of Andrus’s amended successive petition.
We hold that Andrus has failed to show the district court erred in dismissing his amended
successive petition for post-conviction relief.
If an initial post-conviction action was timely filed, the merits of a subsequent petition may
be considered outside of the one-year limitation period if the district court finds a ground for relief
asserted which for sufficient reason was not asserted or was inadequately raised in the original,
supplemental, or amended petition. I.C. § 19-4908; Charboneau v. State, 144 Idaho 900, 904, 174
P.3d 870, 874 (2007). However, a successive petition is subject to summary dismissal if the
petitioner fails to show a sufficient reason for filing a successive petition. Hooper v. State, 127
Idaho 945, 948, 908 P.2d 1252, 1255 (Ct. App. 1995). Pro se litigants are held to the same
standards as those litigants represented by counsel. Michalk v. Michalk, 148 Idaho 224, 229, 220
P.3d 580, 585 (2009). Pro se litigants are not excused from abiding by procedural rules simply
because they are appearing pro se and may not be aware of the applicable rules. Id. In the context
of a successive petition for post-conviction relief, we first consider whether the petitioner raised
the possibility of a valid claim as to the grounds asserted as sufficient reason for filing the
successive petition. See Melton v. State, 148 Idaho 339, 343, 223 P.3d 281, 285 (2009) (addressing
whether petitioner raised the possibility of a valid claim as to “the grounds upon which [the
petitioner] based his successive [petition] for post-conviction relief”).
After accepting Andrus’s amended successive petition for post-conviction relief as timely,
the district court considered whether Andrus “presented sufficient evidence explaining and/or
justifying his failure to raise the current post-conviction issue in his original 2016 post-conviction
case” as required by I.C. § 19-4908. Section 19-4908 provides:
All grounds for relief available to an applicant under [the Uniform Post-
Conviction Procedure Act] must be raised in [the] original, supplemental or
amended application. Any ground finally adjudicated or not so raised, or
knowingly, voluntarily and intelligently waived in the proceeding that resulted in
the conviction or sentence or in any other proceeding the applicant has taken to
secure relief may not be the basis for a subsequent application, unless the court
finds a ground for relief asserted which for sufficient reason was not asserted or
was inadequately raised in the original, supplemental, or amended application.

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Andrus argued to the district court that he was entitled to file a successive petition for post-
conviction relief “under the Sixth Amendment of the United States Constitution and Article I,
Section 13 of the Idaho Constitution, on the ground of ineffective assistance of counsel.” Relying
on the Idaho Supreme Court’s holding in Clarke, 165 Idaho 393, 446 P.3d 451 as a basis for his
ineffective assistance of trial counsel claim, Andrus argued his trial counsel from 2014 was
ineffective because he “failed to recognize long existing law, then failed to move the [district court]
to dismiss the DUI charge and/or suppress the evidentiary testing results used against him.”
The district court began by noting that Andrus failed to raise the current alleged deficiency
by trial counsel as part of his initial petition for post-conviction relief from 2016. Based on
I.C. § 19-4908, the district court determined that, “not only should Andrus have included this
current claim of ineffective assistance of counsel in his original 2016 post-conviction proceeding,
but also that the newly asserted claim may not serve as a basis for subsequent application.” The
district court determined that Andrus’s amended successive petition would be precluded under
I.C. § 19-4908 unless it identified a ground for relief for which sufficient reason was not adequately
raised or asserted in his original, supplemental, or amended petition. The district court found that
Andrus’s argument on this issue helped establish that he “waived the right to assert the current
issue when he failed to raise it in his original post-conviction case.”
In his amended successive petition, Andrus did not argue that the Clarke holding created
new case law that should be applied retroactively. Rather, Andrus asserted that, “even though
State v. Clarke occurred almost five (5) years after [his] conviction, the Idaho Supreme Court has
made it clear that this is not ‘new’ law.” Andrus also cited State v. Amstutz, 169 Idaho 144, 492
P.3d 1103 (2021) to further argue that “the Clarke decision did not state new law; it merely
memorialized what the framers of the Idaho Constitution initially intended in limiting an officer’s
arrest powers for completed misdemeanors.” As such, Andrus argued there existed “evidence of
material facts and law, not previously presented and heard” which required “vacation of [his]
conviction and sentence in the interest of justice.” Andrus contended that the Court’s reasoning
in Clarke was applicable to his case and that:
[Andrus’s] prior trial counsel should have filed a motion to suppress because there
was neither a constitutional nor statutory basis upon which he could have been
arrested; so, as a result, [Andrus’s] arrest had been unlawful. If his arrest were [sic]

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unlawful, the breath test and further evidence and/or statements obtained incident
to arrest would be “fruit of the poisonous tree” and therefore subject to suppression.
The district court was not persuaded that Andrus was unlawfully arrested prior to the
officer conducting the field sobriety tests and Andrus submitting to evidentiary breath testing. The
district court also disagreed with Andrus’s conclusion that the officer administered a breath test
after an unlawful arrest. The district court found that Andrus was lawfully in custody at the time
he performed the field sobriety tests and provided the breath samples, stating: “It was only after
completing and failing those evidentiary tests that Andrus was taken into custody on the Excessive
DUI charge.” The district court further found that, if the holding in Clarke did not establish new
law as Andrus argued, then he had an obligation to raise the ineffective assistance of trial counsel
claim in his original post-conviction case as required by I.C. § 19-4908. That Andrus could and
should have raised the issue in his first post-conviction case became more apparent when the
district court also considered that Andrus’s amended petition for post-conviction relief from 2016
was filed during the first week of June 2019; “within a week of the time the Clarke opinion was
issued.”
Accordingly, the district court found that Andrus “could and should have included the issue
in his original post-conviction case, but failed to do so.” The district court, therefore, determined
that Andrus failed to present sufficient reason and/or justification as to why he could not have
included the current ineffective assistance of trial counsel claim in his original post-conviction
petition from 2016. Because Andrus failed to establish that he had a sufficient reason for not
raising his current claim in his original post-conviction case, the district court found that I.C. § 19-
4908 precluded him from attempting to raise the issue in a successive petition for post-conviction
relief.
On appeal, Andrus contends the district court erred in finding that he waived the Clarke-
based ineffective assistance of counsel claim alleged in his successive petition for post-conviction
relief. Specifically, Andrus asserts that “the constitutional repugnance of modal procedure to
blackletter constraints on police arrest-powers” provides him with “both the requisite ‘ground’ and
‘sufficient reason’ to assert his post-conviction claim now.” However, Andrus does not offer
cogent argument or authority supporting his argument, nor does he demonstrate how the district
court erred in determining that he did not meet the requirements for filing a successive petition for

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post-conviction relief. Rather, a majority of Andrus’s arguments on appeal discuss the merits and
facts of his underlying criminal case, which is not relevant to whether he met the successive
petition standard. A party waives an issue on appeal if either argument or authority is lacking.
Powell v. Sellers, 130 Idaho 122, 128, 937 P.2d 434, 440 (Ct. App. 1997). Accordingly, Andrus
has failed to show the district court erred in finding that his amended successive petition for post-
conviction relief is precluded by I.C. § 19-4908.
IV.
CONCLUSION
Because Andrus could have raised his ineffective assistance of trial counsel claim in his
original post-conviction petition from 2016, and because he has failed to present sufficient reason
as to why he did not, his amended successive petition for post-conviction relief is precluded by
I.C. § 19-4908. Andrus has failed to show the district court erred in dismissing his amended
successive petition for post-conviction relief. Accordingly, the district court’s order dismissing
Andrus’s amended successive petition for post-conviction relief is affirmed.
Chief Judge GRATTON and Judge HUSKEY, CONCUR.

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