               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 45843

ZACKERY DOUGLAS ADAMS,                         )
                                               )     Filed: March 7, 2019
       Petitioner-Appellant,                   )
                                               )     Karel A. Lehrman, 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                                               )     THIS IS AN UNPUBLISHED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. Peter G. Barton, District Judge.

       Judgment of the district court summarily dismissing petition for post-conviction
       relief, affirmed.

       Fyffe Law; Robyn Fyffe, Boise, for appellant.

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

GRATTON, Chief Judge
       Zackery Douglas Adams appeals from the district court’s judgment dismissing his
petition for post-conviction relief. Adams challenges the district court’s order granting the
State’s motion for summary dismissal of his petition. For the reasons set forth below, we affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       In 2016, pursuant to a plea agreement, Adams pled guilty to grand theft, Idaho Code
§§ 18-2403(1), 18-2407(1)(b), 18-2409, and unlawful possession of a firearm, I.C. § 18-3316.
The district court sentenced Adams to a unified term of fourteen years with eight years
determinate for grand theft and a consecutive indeterminate term of five years for unlawful
possession of a firearm.   Adams filed a direct appeal arguing that the district court erred in
imposing his sentence and awarding restitution. In an unpublished opinion, this Court affirmed


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Adams’ judgment of conviction and sentences and the judgment of restitution. State v. Adams,
Docket No. 44216, (Ct. App. March 27, 2017).
       In 2017, Adams filed a pro se petition for post-conviction relief raising numerous claims.
Adams’ petition consisted of three pages of allegations, a declaration, and a signature line that
was unsigned. Some allegations in the petition were supported by a two-page handwritten
affidavit of facts signed by Adams. Thereafter, Adams was appointed post-conviction counsel
and appointed counsel did not amend Adams’ petition. As relevant to his claim on appeal,
Adams alleged that his trial counsel was ineffective for failing to raise a double jeopardy
challenge, for informing him that “there was no type of ‘insanity defense’ in the State of Idaho,”
and for informing him that “the State did not have to prove ‘intent’ to commit a crime” therefore
Adams had “no defense to the crimes charged, and he should plead guilty.”
       The State filed a motion for summary dismissal arguing that the petition should be
dismissed because (1) it was not verified, and (2) Adams failed to present genuine issues of
material fact entitling him to an evidentiary hearing. Adams filed a memorandum in opposition
to the State’s motion for summary dismissal but did not address the State’s claim that the petition
was not verified and did not provide a notarized signature. After a hearing on the motion, the
district court summarily dismissed Adams’ petition on both independent grounds presented by
the State. Adams timely appeals.
                                                II.
                                           ANALYSIS
       Adams argues that the district court erred in summarily dismissing his petition for
post-conviction relief because (1) his petition was effectively verified by the signature on the
affidavit of facts, and (2) his claims presented genuine issue of material fact entitling him to an
evidentiary hearing. In response, the State argues that the district court was correct in summarily
dismissing Adams’ post-conviction claim on both grounds. Further, the State contends that
Adams’ appellate argument challenging the district court’s dismissal on the ground that the
petition was not verified is not preserved for appeal, and thus it should not be considered by this
Court. We agree with the State.
       Appellate court review is limited to the evidence, theories, and arguments that were
presented below. State v. Garcia-Rodriguez, 162 Idaho 271, 275, 396 P.3d 700, 704 (2017).
Here, the district court dismissed Adams’ petition for post-conviction relief on two independent

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grounds. First, the district court held that Adams’ petition for post-conviction relief was not
verified and Adams’ had not “promptly corrected” this error as challenged by the State. The
district court relied, in part, on Idaho Rule of Civil Procedure 11(a) which states that a pro se
petition “must be signed by . . . a party personally if the party is unrepresented” and requires the
court to “strike an unsigned paper unless the omission is promptly corrected after being called to
the attorney’s or party’s attention.” Second, the district court reviewed the merits of Adams’
claims and independently dismissed each claim for failing to raise genuine issues of material
fact.
        On appeal, Adams acknowledges that the State moved for summary dismissal “alleging
in part that the petition should be dismissed because it was not verified” and “[i]t is unknown
why post-conviction counsel did not amend the petition or take even the minimal step of
obtaining a notarized petition.” Nonetheless, Adams argues, for the first time on appeal, that the
“notarized affidavit” that was attached to the petition “should be construed as part of the
petition.” However, Adams was presented with ample opportunity to rebut the State’s allegation
that Adams’ petition for post-conviction relief was not verified. Adams could have responded to
the State’s argument in his answer to their motion for summary dismissal, and he could have
amended his petition. He failed to do so. Because Adams’ argument that his petition was
verified is brought for the first time on appeal, it is not properly preserved for this Court.
Garcia-Rodriguez, 162 Idaho at 275, 396 P.3d at 704. Consequently, we affirm the district
court’s dismissal of Adams’ petition for post-conviction relief on the grounds that it was not
verified. Because we affirm the district court on the first ground for dismissal, (i.e. that the
petition is unverified), we need not address Adams’ challenges to the second grounds for
dismissal. Andersen v. Professional Escrow Services, Inc., 141 Idaho 743, 745, 118 P.3d 75, 77
(2005). 1




1
        We note, however, that Adams’ double jeopardy claim is meritless, as the grand theft
charge was based on Adams’ taking the guns, not theft by possession. In addition, Adams’
ineffective assistance of counsel claims as to the intent element fail because (1) the record shows
that the court properly advised Adams of the intent element before his plea, and (2) Adams never
alleged that he would not have entered the plea, but instead would have gone to trial, had he been
adequately advised.
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                                           III.
                                      CONCLUSION
       The district court did not err in granting the State’s motion for summary dismissal.
Therefore, the judgment of the district court summarily dismissing Adams’ petition for
post-conviction relief is affirmed.
       Judge HUSKEY and Judge BRAILSFORD CONCUR.




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