Brent Williams v. State ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 40926
BRENT WILLIAMS, ) 2014 Unpublished Opinion No.351
)
Petitioner-Appellant, ) Filed: f,'ebruary 6,2014
)
v, ) Stephen W. Kenyon, Clerk
)
STATE OF IDAHO, ) THIS IS AI\ TJI\PUBLISHED
) OPINION AI{D SHALL NOT
Respondent. ) BE CITED AS AUTHORITY
Appeal from the District Court of the Seventh Judicial District, State of ldaho.
Bonneville County. Hon. Joel E. Tingey, District Judge.
Order summarily dismissing petition for post-conviction relief, affirmed.
Brent Williams, Boise, pro se appellant.
Hon. Lawrence G. Wasden, Attomey General; Nicole L. Schafer, Deputy
Attomey General, Boise, for respondent.
GRATTON, Judge
Brent Williams appeals from the district court's sumrnary dismissal of his petition for
post-conviction relief. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Williams pled guilty pusuant to plea agreements in two sepzrate cases and the district
court entered two judgments of conviction and sentences on January I 0, 201 1 . Williams did not
file direct appeals in either case. on February 28, 2013, williams filed a pro se petition for post-
conviction relief. The district court filed a notice of intent to dismiss Williams' petition because
it failed to present viable claims. The State filed a motion to dismiss asserting the petition was
filed outside the statute of limitations. Williams' objection to dismissal did not address the
timeliness of his petition. The court issued an order of dismissal for Williams' failure to file his
petition within the one-year statute of limitations.l Williams timely appeals.
IL
ANALYSIS
Our review ofthe district court's construction and application of the limitation statute is a
matter of free review. Kriebel v. State, 148 Idaho 188, 190,219 P3d 1204, 1206 (Ct. App.
2009). The statute of limitations for post-conviction actions provides that a petition for post-
conviction relief may be frled at any time within one year from the expiration of the time for
appeal, or from the determination of appeal, or from the determination of a proceeding following
an appeal, whichever is later. I.C. $ 19-4902(a). The appeal referenced in that section means the
appeal in the underlying criminal case. Gonzalez v. State,I39 Idaho 384,385,79 P.3d 743,744
(Ct. App. 2003). The failure to file a timely petition is a basis for dismissal of the petition.
Kriebel, 148 Idaho at 190, 219 P.3d at 1206.
The district court dismissed Williams' petition because it was not timely filed. Williams
argues his petition for post-conviction relief is not time-barred because his recent due diligence
led to the discovery of the legal argument that a grand jury indictrnent was required in his case.
A party waives an issue on appeal if either authority or argument is lacY,ing. State v. Zichko, 129
Idaho 259,263,923 P.2d 966,970 (1996). Williams offers neither authority nor argument to
support the notion that the statutory period is tolled because the petitioner later leams of a legal
argument (enoneous as it is). Williams also argues his innocence tolled the time requirement.
However, he has again failed to ofler authority or argument to support his contention. The
statutory period began forty-two days after his judgment of conviction was entered. Williams
has presented nothing to excuse his failure to timely file within the one-year period.
ilI.
CONCLUSION
Williams did not timely file his petition for post-conviction relief. Therefore, the order of
dismissal is affirmed.
Judge MELANSON CONCURS.
Judge LANSING CONCURS IN THE RESULT.
t The court also dismissed the petition based on Williams' failure to present meritorious
claims. However, on appeal, the State argues only the issue of timeliness.