MUCHOW v. STATE, 30451 (Idaho Ct.App. 2005)

PERRY, Chief Judge.

Randy Muchow appeals from the district court's order summarily dismissing his application for post-conviction relief. We affirm.

In May 1997, Muchow was arrested for felony driving under the influence. I.C. § 18-8004(1)(A). He remained incarcerated until he entered a guilty plea and was sentenced in October 1997. The district court sentenced Muchow to a unified term of five years, with a minimum period of confinement of two and a half years, and retained jurisdiction. At the conclusion of the retained jurisdiction period, April 23, 1998, the district court placed Muchow on probation for four years.

On April 17, 2001, Muchow admitted to a probation violation. The district court found Muchow in violation and revoked his probation. The district court then reinstated Muchow on probation with additional conditions and extended the length of his probation by one year — to April 2003. On July 25, 2002, Muchow admitted to a second probation violation. The district court revoked his probation, reduced his sentence pursuant to an oral I.C.R. 35 motion, and ordered Muchow's sentence executed.

Muchow filed an application for post-conviction relief asserting that the district court exceeded its authority when it extended Muchow's probation beyond the five-year maximum term for which he could have been imprisoned in May 1997. Thus, Muchow contended that the extension was in contravention of I.C. § 20-222. After reviewing the application, the district court determined that the term of probation ordered, including the extension, did not violate the applicable statute. Muchow appeals.

In his application for post-conviction relief, Muchow challenged the one-year extension of his probation claiming that he was illegally incarcerated because the second report of a probation violation, which resulted in a revocation of his probation, was filed after his probation should have expired. Muchow asserted that I.C. § 20-222 was violated by the extension of his probation. That statute provides:

The period of probation or suspension of sentence may be indeterminate or may be fixed by the court, and may at any time be extended or terminated by the court. Such period with any extension thereof shall not exceed the maximum period for which the defendant might have been imprisoned.

(Emphasis added.)

After a review of the application, the district court concluded that the terms of probation ordered, including the original term and the one-year extension, did not violate Section 20-222. Consequently, the district court dismissed the application.

An application for post-conviction relief initiates a proceeding which is civil in nature. State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct.App. 1992). Summary dismissal of an application pursuant to I.C. § 19-4906 is the procedural equivalent of summary judgment under I.R.C.P. 56. Like a plaintiff in a civil action, the applicant must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. I.C. § 19-4907; Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct.App. 1990).

Idaho Code Section 19-4906 authorizes summary dismissal of an application for postconviction relief, either pursuant to motion of a party or upon the court's own initiative. Summary dismissal is permissible only when the applicant's evidence has raised no genuine issue of material fact which, if resolved in the applicant's favor, would entitle the applicant to the requested relief. If such a factual issue is presented, an evidentiary hearing must be conducted. Gonzales v. State, 120 Idaho 759, 763, 819 P.2d 1159, 1163 (Ct.App. 1991); Hoover v. State, 114 Idaho 145, 146, 754 P.2d 458, 459 (Ct.App. 1988); Ramirez v. State, 113 Idaho 87, 89, 741 P.2d 374, 376 (Ct.App. 1987). Summary dismissal of an application for post-conviction relief may be appropriate, however, even where the state does not controvert the applicant's evidence because the court is not required to accept either the applicant's mere conclusory allegations, unsupported by admissible evidence, or the applicant'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).

Muchow contends that the district court imposed a longer probation term than is allowed by statute and argues that he was entitled to credit against the duration of the probation term for time he served in jail before sentencing and for time served during retained jurisdiction. Muchow asserts that, because he was arrested in May 1997 and pled guilty to an offense for which he may have been imprisoned for a maximum period of five years, he could not have been imprisoned beyond May 2002. See I.C. § 18-8005(5). Therefore, according to Muchow's argument, he also could not be placed on probation beyond that date.

Idaho Code Section 18-309, which governs the computation of terms of imprisonment, provides that a person against whom the judgment was entered shall receive credit for any period of incarceration prior to the entry of judgment if the incarceration was for the offense for which the judgment was entered. Therefore, at sentencing, the maximum period of incarceration Muchow could have been required to serve was five years, minus credit for time served presentencing. Additionally, at the time the district court extended Muchow's probation, the maximum period Muchow could have been required to serve, had the district court imprisoned him, was five years, minus credit for time served pre-sentencing and minus credit for time served while on retained jurisdiction. Section 18-309, however, directs computing terms of imprisonment and does not give credit for any period of incarceration towards a person's probationary period. Thus, Section 18-309 cannot be used to compute the duration of a probation term.

Idaho Code Section 20-222 limits the period of probation and any extension if applicable, to a term not to exceed the maximum period for which the defendant may have been imprisoned. Section 20-222 does not, however, contain language similar to Section 18-309 providing credit for time served. Thus, we reject Muchow's argument that a defendant who is placed on probation must have the duration of his or her probationary term shortened by any period of prior incarceration.

In Muchow's case, he pled guilty to felony driving under the influence. The district court suspended Muchow's sentence and placed him on probation in April 1998. The period of probation expired in April 2003, so that Muchow's probationary term totaled five years. The original period of probation, combined with the one-year extension, did not exceed the maximum sentence of imprisonment allowed by statute. Therefore, we conclude that the district court did not err in dismissing Muchow's application for post-conviction relief.

For the foregoing reasons, the district court's order summarily dismissing Muchow's application for post-conviction relief is affirmed.

Judge LANSING and Judge Pro Tem WALTERS, CONCUR.