Opinion
Docket No. 40334 2013 Unpublished Opinion No. 525
06-05-2013
PHILLIP RALPH LEWIS CARLE, Petitioner-Appellant, v. STATE OF IDAHO, Respondent.
Phillip Ralph Lewis Carle, Orofino, pro se appellant. Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent.
Stephen W. Kenyon, Clerk
THIS IS AN UNPUBLISHED
OPINION AND SHALL NOT
BE CITED AS AUTHORITY
Appeal from the District Court of the First Judicial District, State of Idaho, Shoshone County. Hon. Fred M. Gibler, District Judge.
Judgment dismissing action for post-conviction relief, affirmed.
Phillip Ralph Lewis Carle, Orofino, pro se appellant.
Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent. LANSING, Judge
Phillip Ralph Lewis Carle was found guilty of two counts of rape, Idaho Code § 18-6101, and one count of sexual penetration by use of a foreign object, I.C. § 18-6608. The district court sentenced Carle to concurrent unified sentences of life imprisonment, with minimum periods of confinement of twenty-five years, on each count. Carle appealed his conviction, and the Idaho Court of Appeals affirmed. Carle then filed a pro se petition for post-conviction relief which the district court dismissed. On appeal, his post-conviction action was remanded and an attorney was appointed to represent him. Trial was held on the issues raised in that post-conviction petition and judgment ultimately was entered dismissing Carle's petition. Carle appealed that dismissal and then filed a successive petition for post-conviction relief, which was also dismissed. Carle now appeals, pro se, from the district court's dismissal of his successive petition for post-conviction relief.
We have found in Carle's appellate brief no claim of error that we can address. Idaho Appellate Rule 35 requires that an appellant identify the specific issues to be considered on appeal and present arguments with citations to the record and transcript on which the arguments rely. I.A.R. 35(a)(4), (6). The failure of an appellant to include an issue in the statement of issues required by I.A.R. 35(a)(4) will eliminate consideration of the issue on appeal. State v. Crowe, 131 Idaho 109, 111, 952 P.2d 1245, 1247 (1998). This rule may be relaxed, however, where the issue is argued in the briefing. Id.
Idaho Appellate Rule 35(a) provides in relevant part:
(a) Appellant's Brief. The brief of the appellant shall contain the following divisions under appropriate headings:
(4) Issues Presented on Appeal. A list of the issues presented on appeal, expressed in the terms and circumstances of the case but without unnecessary detail. The statement of the issues should be short and concise, and should not be repetitious. The issues shall fairly state the issues presented for review. The statement of issues presented will be deemed to include every subsidiary issue fairly comprised therein.
. . . .
(6) Argument. The argument shall contain the contentions of the appellant with respect to the issues presented on appeal, the reasons therefor, with citations to the authorities, statutes and parts of the transcript and record relied upon.
In this case, Carle has not satisfied these requirements in his appellant's brief. Carle merely restates the brief that he filed in his last post-conviction relief petition and re-labeled it "Opening Brief of Appellant." Carle does not articulate any issues presented on appeal as required by I.A.R. 35(a)(4), and also fails to present any argument in his brief identifying error in the district court's rationale for dismissal. His brief does not even mention the district court's dismissal of his petition, much less provide reasons for why the district court erred in its stated grounds for dismissal. Because Carle's brief does not articulate any issues or include any argument that the district court's dismissal order was in error, we find no basis to reverse the district court's decision.
Therefore, the district court's judgment dismissing Carle's petition for post-conviction relief is affirmed.
Chief Judge GUTIERREZ and Judge MELANSON CONCUR.