               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 43565

MAX J. GORRINGE,                                )    2016 Unpublished Opinion No. 593
                                                )
       Petitioner-Appellant,                    )    Filed: July 7, 2016
                                                )
v.                                              )    Stephen W. Kenyon, Clerk
                                                )
STATE OF IDAHO,                                 )    THIS IS AN UNPUBLISHED
                                                )    OPINION AND SHALL NOT
       Respondent.                              )    BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Molly J. Huskey, District Judge.

       Order denying motion to reconsider summary dismissal of petition for post-
       conviction relief, affirmed.

       Nevin, Benjamin, McKay & Bartlett LLP; Deborah Whipple, Boise, for appellant.

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

GRATTON, Judge
       Max J. Gorringe appeals from the district court’s order denying his motion to reconsider
the summary dismissal of his petition for post-conviction relief. We affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Gorringe pled guilty to attempted strangulation. He appealed and this Court affirmed his
conviction. State v. Gorringe, Docket No. 39638 (Ct. App. Mar. 13, 2013) (unpublished).
Gorringe subsequently filed a pro se petition for post-conviction relief and moved for
appointment of counsel. The district court appointed counsel and noticed its intent to dismiss the
petition. Gorringe’s counsel moved for additional time to respond to the court’s notice of intent
to dismiss and the court granted the motion for additional time. Gorringe’s counsel filed an
amended petition and the State responded to the amended petition and moved for summary


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dismissal.   The court held a hearing on the State’s motion for summary dismissal where
Gorringe’s counsel responded to the State’s motion. On May 19, 2015, the court summarily
dismissed the amended petition in a written order.
       Gorringe subsequently filed a pro se motion entitled “Motion to Reconsider (set aside)
Dismissal of Postconviction (5-20-15); Rule 59(e), 60(b) or any other rule that may Grant Relief
and or in the alternative Motion to Review the record.” The motion was treated by the district
court as a motion to alter or amend the judgment under Idaho Rule of Civil Procedure 59(e). The
court denied the motion because Gorringe had not filed the motion within fourteen days of the
dismissal of his petition as required by I.R.C.P. 59(e). Ross v. State, 141 Idaho 670, 672, 115
P.3d 761, 763 (Ct. App. 2005). The court also held that it would have denied the motion even if
it had been timely because the motion failed to identify legal or factual errors that occurred in the
post-conviction proceeding. The court did not address the motion as a motion for relief from
judgment under I.R.C.P. 60(b). On September 21, 2015, Gorringe filed a notice of appeal.
                                                 II.
                                           ANALYSIS
       Gorringe contends that the district court improperly treated his motion solely as a motion
to alter or amend a judgment under I.R.C.P. 59(e). He suggests the court should have
also treated his motion as a motion for relief from judgment under I.R.C.P. 60(b) because the
motion contained allegations of ineffective assistance of post-conviction counsel. The State
asserts that Gorringe did not file a timely appeal because the pendency of a Rule 60(b) motion
does not toll the time for appeal.       Alternatively, the State argues that Gorringe has not
demonstrated a basis for relief under I.R.C.P. 60(b).
       When a movant files an ambiguously titled post-judgment motion, courts consider the
substance of the motion to determine whether it is properly an I.R.C.P. 59(e) or I.R.C.P. 60(b)
motion. Bias v. State, 159 Idaho 696, 706, 365 P.3d 1050, 1060 (Ct. App. 2015); see Vierstra v.
Vierstra, 153 Idaho 873, 879, 292 P.3d 264, 270 (2012). A motion is most appropriately
considered a motion to alter or amend a judgment pursuant to I.R.C.P. 59(e), when it is filed
within fourteen days of the entry of judgment and is premised solely upon information that was
before the court at the time judgment was rendered. Dunlap v. State, 141 Idaho 50, 58, 106 P.3d
376, 384 (2004); Bias, 159 Idaho at 706, 365 P.3d at 1060; Schultz v. State, 155 Idaho 877, 883,
318 P.3d 646, 652 (Ct. App. 2013). Conversely, where a motion presents new information or

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issues for the court to consider, treatment as a motion for relief from judgment under
I.R.C.P. 60(b) is most appropriate. Bias, 159 Idaho at 706, 365 P.3d at 1060; Ross, 141 Idaho at
672, 115 P.3d at 763.
       In this case, Gorringe’s motion contained additional matters for the court to consider,
principally an allegation of ineffective assistance of post-conviction counsel. Thus, the court
should have considered the motion under I.R.C.P. 60(b). However, an appellate court may
affirm a lower court’s decision on a legal theory different from the one applied by the lower
court. Bias, 159 Idaho at 706, 365 P.3d at 1060; In re Estate of Bagley, 117 Idaho 1091, 1093,
793 P.2d 1263, 1265 (Ct. App. 1990).
       The appeal is timely as to the denial of the Rule 60(b) motion.             Idaho Appellate
Rule 14(a) requires parties to file their notice of appeal within forty-two days of the final
judgment. The requirement of perfecting an appeal within the forty-two-day time period is
jurisdictional. State v. Thomas, 146 Idaho 592, 594, 199 P.3d 769, 771 (2008); State v. Tucker,
103 Idaho 885, 888, 655 P.2d 92, 95 (Ct. App. 1982). A “[m]otion for relief under Rule 60(b)
does not affect the finality of a judgment and hence does not toll the time for appeal from the
final judgment.” First Sec. Bank v. Neibaur, 98 Idaho 598, 603, 570 P.2d 276, 281 (1977); see
Idaho Appellate Rule 14(a) (excepting I.R.C.P. 60 motions from civil motions that toll the time
for appeal from the final judgment).
       Here, the district court summarily dismissed Gorringe’s petition on May 19, 2015. On
September 21, 2015, Gorringe filed his notice of appeal, 125 days after the district court
summarily dismissed his petition. Because an I.R.C.P. 60(b) motion does not toll the time for
appeal from a final judgment, this Court lacks appellate jurisdiction to consider an appeal from
the order dismissing the petition. However, an order denying a motion for reconsideration is
itself an appealable order. In this case, the district court entered its order denying the motion for
reconsideration on July 14, 2015. Gorringe did not file his notice of appeal until September 21,
2015, which, as the State points out, is sixty-nine days later. However, on the day the district
court entered its order denying the motion for reconsideration, the court also appointed counsel
to assist Gorringe in establishing that the motion was timely filed, since the court had considered
the motion untimely under I.R.C.P. 59(e). Nothing further having thereafter been filed, the
district court entered its “Final Judgment” denying the motion for reconsideration on August 14,
2015. The notice of appeal was timely from that “Final Judgment.” Essentially, the court’s

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initial order denying the motion for reconsideration was left open for receipt of additional
evidence and therefore, not finally determined until the August 14, 2015, “Final Judgment.”
Under the circumstances, Gorringe’s appeal from the denial of the motion for reconsideration is
considered timely.
        However, Gorringe’s motion would have failed under I.R.C.P. 60(b). A party must
demonstrate “unique and compelling circumstances” justifying relief before a court may grant an
I.R.C.P. 60(b) motion. Dixon v. State, 157 Idaho 582, 587, 338 P.3d 561, 566 (Ct. App. 2014).
Gorringe argues this case may present “the unique and compelling circumstances sufficient to
justify relief under IRCP 60(b)(6).” Gorringe relies on Eby v. State, 148 Idaho 731, 228 P.3d
998 (2010) for this assertion. According to Gorringe, Eby establishes that ineffective assistance
by post-conviction counsel constitutes a sufficient basis for granting relief under I.R.C.P. 60(b).
        Gorringe’s reliance on Eby is misplaced. In Eby, the petitioner’s post-conviction counsel
failed to file any response to the court’s issuance of no less than five notices of its intention to
dismiss his case for inactivity pursuant to I.R.C.P. 40(c). Eby, 148 Idaho at 733, 228 P.3d at
1000.    The petitioner’s post-conviction attorney did not file any “amendments to [the
petitioner’s] pro se petition” or “response to the state’s motion for summary dismissal.” Id.
After the court dismissed the case under I.R.C.P. 40(c), petitioner’s fourth post-conviction
attorney sought relief under I.R.C.P. 60(b), which the court denied. Eby, 148 Idaho at 734,
228 P.3d at 1001. On appeal, the Idaho Supreme Court reiterated that petitioners do not have a
right to effective assistance of post-conviction counsel. Id. at 737, 228 P.3d at 1004. However,
because post-conviction proceedings constitute “the only available proceeding for [a petitioner]
to advance constitutional challenges to his conviction and sentence,” the Court held that relief
may be warranted under I.R.C.P. 60(b) in the “unique and compelling circumstances” where a
petitioner experiences “the complete absence of meaningful representation.” Eby, 148 Idaho at
737, 228 P.3d at 1004 (emphasis added). See generally Bias, 159 Idaho at 706, 365 P.3d at
1060.
        Here, Gorringe’s motion does not allege a complete absence of post-conviction
representation, nor does the record support such a finding. Gorringe’s post-conviction counsel
amended Gorringe’s pro se petition and responded to the State’s motion for summary dismissal
at the hearing on the motion for summary dismissal. Unlike the petitioner in Eby, Gorringe did
not experience a “complete absence of meaningful representation.” Eby, 148 Idaho at 737, 228

                                                 4
P.3d at 1004. Gorringe’s dissatisfaction with his post-conviction counsel’s performance does not
constitute the unique and compelling circumstances required before a court may grant relief
under I.R.C.P. 60(b). Because Gorringe’s motion would have failed under I.R.C.P. 60(b), we
uphold the district court’s denial of his post-judgment motion.
                                               III.
                                        CONCLUSION
        Although the district court should have considered Gorringe’s motion under
I.R.C.P. 60(b), it is without merit under I.R.C.P. 60(b). The district court’s order denying
Gorringe’s motion to reconsider the summary dismissal of his petition for post-conviction relief
is affirmed.
       Chief Judge MELANSON and Judge GUTIERREZ CONCUR.




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