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March 4, 2026 Get Citation Alerts Download PDF Add Note

Marcell v. State

Idaho Court of Appeals

• Citations: None known
• Docket Number: 51095

• Precedential Status: Non-Precedential

• Opinion

• Authorities (16)

• Cited By (0)

• Summaries (0)

• Similar Cases (680)

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Combined Opinion

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 51095

COLE JOSEPH MARCELL, )
) Filed: March 4, 2026
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) THIS IS AN UNPUBLISHED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 Second Judicial District, State of Idaho, Nez
Perce County. Hon. Adam H. Green, District Judge.

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

Erik R. Lehtinen, State Appellate Public Defender; Brian R. Dickson, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Raúl R. Labrador, Attorney General; John C. McKinney, Deputy Attorney
General, Boise, for respondent.

TRIBE, Chief Judge
Cole Joseph Marcell appeals from the district court’s judgment summarily dismissing his
amended petition for post-conviction relief. Marcell argues the district court erred by failing to
address his claim of newly discovered evidence. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Marcell pled guilty to first degree murder.1 Marcell filed a pro se petition for
post-conviction relief, arguing that his trial counsel was ineffective for the following

1
This Court affirmed Marcell’s judgment of conviction and sentence in an unpublished
opinion. See State v. Marcell, Docket No. 48932 (Ct. App. Apr. 15, 2022).

1
reasons: (1) he promised Marcell a lighter sentence if he pled guilty; (2) he failed to file an Idaho
Criminal Rule 35 motion for sentence reduction; and (3) he failed to pursue trial.
In support of his petition, Marcell filed an affidavit from “Inmate A.”2 The affidavit alleged
that Marcell’s co-defendant admitted to Inmate A that Marcell’s co-defendant was the primary
perpetrator in the murder and described specific details of the crime. The district court filed a
notice of intent to dismiss the petition, explaining that the affidavit lacked specificity, asserted no
claim of actual innocence, and did not assert that Marcell’s guilty plea was not entered knowingly
or willingly. The district court also stated that the issue could have been raised on direct appeal
under Idaho Code § 19-4901. The district court further stated that Marcell had not provided any
evidence showing that he was not present when the victim was killed or that Marcell was
incompetent at the time of the offense. Marcell filed an objection to the notice of intent to dismiss.
Marcell filed a second affidavit from Inmate A to clarify deficiencies discussed in the
district court’s notice of intent to dismiss. The second affidavit clarified the time and place of the
conversation between Inmate A and Marcell’s co-defendant, as well as the relationship between
Inmate A and Marcell.
Marcell subsequently filed an amended petition for post-conviction relief, asserting
that: (1) the district court abused its discretion by imposing a disproportionate sentence compared
to his co-defendants; (2) his trial counsel was ineffective; and (3) his constitutional rights were
violated. In support of Marcell’s amended petition, he attached the two affidavits by Inmate A.
The State filed an answer and supporting brief requesting summary disposition and dismissal, to
which Marcell responded.
The district court held a hearing on the State’s motion for summary disposition. The State
argued that it did not know the purpose of the affidavits or to what claim they were related. Marcell
responded by citing I.C. § 19-4901, arguing that the affidavits contained material facts not
previously presented and that such facts could not have been raised on his direct appeal. Notably,
Marcell did not move to amend the petition or otherwise clarify that a newly discovered evidence

2
The district court granted Marcell’s request to file the affidavits under seal to protect the
identity of the affiant.

2
claim was being asserted. Ultimately, the district court entered a memorandum decision and order
granting the State’s motion for summary dismissal. Marcell appeals.
II.
STANDARD OF REVIEW
A petition for post-conviction relief initiates a proceeding that is civil in nature. I.C.
§ 19-4907; Rhoades v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009); State v. Bearshield,
104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Murray v. State, 121 Idaho 918, 921, 828 P.2d
1323, 1326 (Ct. App. 1992). Like a plaintiff in a civil action, the petitioner must prove by a
preponderance of evidence the allegations upon which the request for post-conviction relief is
based. Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002). A petition for
post-conviction relief differs from a complaint in an ordinary civil action. Dunlap v. State, 141
Idaho 50, 56, 106 P.3d 376, 382 (2004). A petition must contain much more than a short and plain
statement of the claim that would suffice for a complaint under I.R.C.P. 8(a)(1). Rather, a petition
for post-conviction relief must be verified with respect to facts within the personal knowledge of
the petitioner, and affidavits, records, or other evidence supporting its allegations must be attached
or the petition must state why such supporting evidence is not included with the petition.
I.C. § 19-4903. In other words, the petition must present or be accompanied by admissible
evidence supporting its allegations or the petition will be subject to dismissal. Wolf v. State, 152
Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011).
Idaho Code Section 19-4906 authorizes summary dismissal of a petition for
post-conviction relief, either pursuant to a motion by a party or upon the court’s own initiative, if
it appears from the pleadings, depositions, answers to interrogatories, and admissions and
agreements of fact, together with any affidavits submitted, that there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. When considering summary
dismissal, the district court must construe disputed facts in the petitioner’s favor, but the court is
not required to accept either the petitioner’s mere conclusory allegations, unsupported by
admissible evidence, or the petitioner’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). Moreover, the district court, as the trier of fact, is not constrained to draw
inferences in favor of the party opposing the motion for summary disposition; rather, the district

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court is free to arrive at the most probable inferences to be drawn from uncontroverted evidence.
Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). Such inferences will not
be disturbed on appeal if the uncontroverted evidence is sufficient to justify them. Id.
Claims may be summarily dismissed if the petitioner’s allegations are clearly disproven by
the record of the criminal proceedings, if the petitioner has not presented evidence making a prima
facie case as to each essential element of the claims, or if the petitioner’s allegations do not justify
relief as a matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281 (2010); DeRushé
v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary dismissal of a claim
for post-conviction relief is appropriate when the court can conclude, as a matter of law, that the
petitioner is not entitled to relief even with all disputed facts construed in the petitioner’s favor.
For this reason, summary dismissal of a post-conviction petition may be appropriate even when
the State does not controvert the petitioner’s evidence. See Roman, 125 Idaho at 647, 873 P.2d at
901.
Conversely, if the petition, affidavits, and other evidence supporting the petition allege
facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be
summarily dismissed. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004);
Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). If a genuine issue of
material fact is presented, an evidentiary hearing must be conducted to resolve the factual issues.
Goodwin, 138 Idaho at 272, 61 P.3d at 629.
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, 146 Idaho at 104, 190 P.3d at 923. Over questions of law, we exercise free
review. Rhoades, 148 Idaho at 250, 220 P.3d at 1069; Downing v. State, 136 Idaho 367, 370, 33
P.3d 841, 844 (Ct. App. 2001).
III.
ANALYSIS
Marcell argues the district court erred by summarily dismissing his amended petition for
post-conviction relief without addressing his claim of newly discovered evidence. He contends
that, although his amended petition did not expressly assert a claim of newly discovered evidence

4
affecting the reliability of his guilty plea, the issue was tried by consent and therefore required a
separate resolution. The State argues that the district court properly summarily dismissed
Marcell’s claim that the newly discovered evidence rendered his sentence unfairly harsh and that
he did not argue the newly discovered evidence affected his conviction. The State additionally
argues that any defect in the district court’s notice of intent to dismiss or its subsequent order
granting summary dismissal is harmless.
Idaho Code § 19-4901 (a)(4) permits relief when “there exists evidence of material facts,
not previously presented and heard, that requires vacation of the conviction or sentence in the
interest of justice.” (Emphasis added). Thus, newly discovered evidence must be connected to a
legally cognizable basis for setting aside either the conviction or the sentence; it cannot merely
serve as a generalized assertion that additional information exists.
In this case, any claim of newly discovered evidence was focused on Marcell’s sentence
rather than his conviction and thus his argument fails. The evidence--two affidavits by
Inmate A--was presented in support of Marcell’s claim in his amended petition that the trial court
“abused its discretion in entering the sentence in this matter” because it “was not fair in light of
the sentences imposed upon his co-defendants.” The district court considered that precise claim
and properly summarily dismissed it on the basis that, even if such evidence had been known by
the trial court at the time of sentencing, the sentence would have been the same.
For the first time on appeal, Marcell argues in his reply brief that he was “presenting the
newly discovered evidence as a separate basis for relief, and not just in support of a claim of
excessive sentence.” Because Marcell did not argue to the district court that the claim of newly
discovered evidence impacted his conviction that issue is not preserved for appeal. Generally,
issues not raised below may not be considered for the first time on appeal. Sanchez v. Arave, 120
Idaho 321, 322, 815 P.2d 1061, 1062 (1991).
After the notice of intent to dismiss was filed, Marcell filed an objection to the dismissal.
Therein, Marcell specifically connected the affidavits (the newly discovered evidence) to his
sentencing claim, stating: “New evidence has been presented that was not available at the time of
sentencing as provided in two sealed affidavits. Mr. Marcell has no connection with the person
who came forward and had no way to know about him at the time of his sentencing.” Therefore,
Marcell claimed that the trial court abused its discretion and he should be re-sentenced. Marcell’s

5
counsel reiterated: “Due to the new evidence obtained that supports the Sentencing Memorandum
submitted in the underlying murder case, there was an abuse of discretion and Mr. Marcell should
be re-sentenced to a term that is comparable to the sentence his co-defendants received.”
The parties submitted briefing and participated in a summary disposition hearing. During
that hearing, both parties discussed the affidavits but the record shows continued uncertainty about
the purpose of the affidavits. The State argued first, expressing doubt about the purpose of the
affidavits and stating it “guess[ed]” they might relate to newly discovered evidence. The State
also argued that, to the extent Marcell intended to raise a newly discovered evidence claim, the
claim was forfeited because it could have been raised on direct appeal. After the State’s argument,
Marcell asserted a claim of genuine issue of material fact through the affidavits, citing I.C.
§ 19-4901(b) and I.C. § 19-4906. While Marcell referenced I.C. § 19-4901 generally during the
summary disposition hearing, he did not argue that the affidavits required vacation of his
conviction; instead, he connected them to his request for re-sentencing.
Although Marcell’s amended petition separately alleged that his plea was not knowingly
and voluntarily made based on trial counsel’s representations, the affidavits were not connected to
that claim. Rather, Marcell’s objection tied the affidavits solely to the sentencing argument
requesting re-sentencing. Furthermore, the ineffective assistance of counsel claim in the amended
petition--that Marcell’s plea was not knowingly and voluntarily made--was based on alleged
representations of trial counsel regarding what Marcell should expect for his sentence, not the
newly discovered evidence. Marcell’s fourth claim of ineffective assistance of counsel asserted a
failure of trial counsel to “confront the prosecutor with the evidence that had been obtained by the
defense to amend the charge to be comparable with the charges to which his co-defendants pled.”
The claim was that the newly discovered evidence could have served to get his sentence reduced
or made comparable with his co-defendants, not that his conviction should be vacated.
Because I.C. § 19-4901(a)(4) requires newly discovered evidence to be connected to
vacating either the conviction or the sentence and Marcell advanced the affidavits only as a basis
for re-sentencing, no issue regarding vacating Marcell’s conviction was properly raised below.
The district court therefore properly reviewed only whether the affidavits warranted relief from
the sentence, not whether they required vacation of the conviction. As a result, the district court
did not err in summarily dismissing Marcell’s amended petition for post-conviction relief.

6
IV.
CONCLUSION
Marcell failed to preserve a claim that newly discovered evidence required vacation of his
conviction. Marcell does not otherwise challenge the district court’s judgment summarily
dismissing his amended petition for post-conviction relief. Accordingly, the district court’s
judgment summarily dismissing Marcell’s amended petition for post-conviction relief is affirmed.
Judge GRATTON and Judge HUSKEY, CONCUR.

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