Gambino v. State

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 48632

GUY ROGER BRACALI GAMBINO, )
aka GUY ROGER BRACALI- ) Filed: August 31, 2022
GAMBINO, )
) Melanie Gagnepain, Clerk
Petitioner-Appellant, )
) THIS IS AN UNPUBLISHED
v. ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
STATE OF IDAHO, )
)
Respondent. )
)

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Lynn G. Norton, District Judge.

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

Eric D. Fredericksen, State Appellate Public Defender; Sally J. Cooley, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Andrew V. Wake, Deputy Attorney
General, Boise, for respondent.
________________________________________________

LORELLO, Chief Judge
Guy Roger Bracali Gambino, aka Guy Roger Bracali-Gambino, appeals from the judgment
dismissing his amended petition for post-conviction relief. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Gambino pled guilty to possession, introduction, or removal of certain articles into or from
correctional facilities for attempting to sharpen a plastic spoon into a weapon he allegedly intended
to use to harm himself while incarcerated at the Ada County jail. This Court (in an unpublished
opinion) affirmed Gambino’s judgment of conviction and sentence and the trial court’s orders

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relinquishing jurisdiction and denying Gambino’s I.C.R. 35 seeking a sentence reduction. State v.
Gambino, Docket No. 45885 (Ct. App. Dec. 18, 2018)
During the pendency of Gambino’s direct appeal from the order relinquishing jurisdiction
in the underlying criminal case, he filed a pro se petition for post-conviction relief. The district
court dismissed Gambino’s pro se petition without prejudice, indicating that he could file an
amended petition within one year of the termination of his direct appeal. Within that time,
Gambino filed an amended petition with the aid of appointed counsel, asserting various allegations
of ineffective assistance of counsel. As relevant to this appeal, Gambino alleged that his trial
counsel: (1) coerced Gambino’s guilty plea, in part, by promising to file a civil lawsuit against
Ada County for supplying the spoon he attempted to sharpen into a weapon; (2) provided erroneous
legal advice regarding Idaho’s persistent violator sentencing enhancement; and (3) failed to
investigate two jail inmates who offered to testify that “sharpened spoons . . . were not taken out
of circulation” in the jail.
Subsequently, the district court notified Gambino of its intent to dismiss his amended
petition unless he addressed certain deficiencies in the petition within twenty days. After Gambino
responded by submitting a supplementary affidavit along with two additional affidavits from the
inmates trial counsel allegedly failed to investigate, the district court summarily dismissed the
three allegations identified above and ordered an evidentiary hearing on Gambino’s remaining
allegations of ineffective assistance of counsel. Following an evidentiary hearing, the district court
dismissed Gambino’s remaining allegations. Gambino appeals.
II.
STANDARD OF REVIEW
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 v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). Over questions
of law, we exercise free review. Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069
(2009); Downing v. State, 136 Idaho 367, 370, 33 P.3d 841, 844 (Ct. App. 2001).

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III.
ANALYSIS
Gambino argues the summary dismissal of the three allegations of ineffective assistance of
counsel was error because he established an issue of material fact on each. 1 The State responds
that summary dismissal of each allegation was proper because they were conclusory, disproven by
the record, or lacked sufficient evidentiary support.2 We hold that Gambino has failed to show
error in the district court’s summary dismissal decision.
A claim of ineffective assistance of counsel may properly be brought under the post-
conviction procedure act. Murray v. State, 121 Idaho 918, 924-25, 828 P.2d 1323, 1329-30 (Ct.
App. 1992). To prevail on an ineffective assistance of counsel claim, the petitioner must show
that the attorney’s performance was deficient and that the petitioner was prejudiced by the
deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hassett v. State, 127 Idaho
313, 316, 900 P.2d 221, 224 (Ct. App. 1995). To establish a deficiency, the petitioner has the
burden of showing that the attorney’s representation fell below an objective standard of
reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). Where, as
here, the petitioner was convicted upon a guilty plea, to satisfy the prejudice element, the petitioner
must show that there is a reasonable probability that, but for counsel’s errors, he or she would not
have pled guilty and would have insisted on going to trial. Plant v. State, 143 Idaho 758, 762, 152
P.3d 629, 633 (Ct. App. 2006). This Court has long adhered to the proposition that tactical or
strategic decisions of trial counsel will not be second-guessed on appeal unless those decisions are
based on inadequate preparation, ignorance of relevant law, or other shortcomings capable of
objective evaluation. Howard v. State, 126 Idaho 231, 233, 880 P.2d 261, 263 (Ct. App. 1994).

1
The district court’s dismissal of Gambino’s allegations that went to an evidentiary hearing
is not at issue in this appeal.
2
As noted in the State’s brief, it is unclear whether Gambino’s original petition or his
amended petition were timely filed. However, because the district court dismissed Gambino’s
original pro se petition without prejudice and expressly permitted Gambino to file a petition within
one year of the resolution of his appeal from the order relinquishing jurisdiction (without limitation
in relation to whether the claims would be considered timely under the applicable law), the State
has not raised a statute of limitation defense.

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A. Coerced Plea Claim
Gambino contends that the district court erred by summarily dismissing the allegation that
his guilty plea was coerced, in part, by his trial counsel’s promise to file a civil lawsuit against Ada
County for providing him with the spoon he attempted to sharpen into a weapon. The district
court’s notice of intent to dismiss notified Gambino that this claim was subject to summary
dismissal because it was belied by the record. Specifically, the district court observed that:
During the guilty plea hearing, the Court asked [Gambino] if he felt that he
was “being pressured or coerced into entering a guilty plea.” [Gambino] indicated
under oath that he was not. In fact, during that hearing, [Gambino] also stated he
was “more confident with his attorney than he’d been with public defenders.”
[Gambino] also indicated he understood that he was not required to accept a plea
agreement, that he was not required to enter a guilty plea, that the plea agreement
was acceptable to him, the plea agreement on the record represented the entirety of
that agreement and that he wanted to plead guilty.
In the Guilty Plea Advisory Form, [Gambino] answered “no” when asked
if any other promises had been made to him to influence his decision to plead guilty.
Additionally, his response indicated that he understood that no one could force him
to plead guilty, and he acknowledged that he was pleading guilty “freely and
voluntarily.”
(Footnotes and brackets omitted). The district court reasoned that Gambino’s statements during
the guilty plea hearing and responses on the guilty plea advisory form disproved “his assertion that
trial counsel made promises other than those included in the plea agreement.” Accordingly, the
district court notified Gambino that the claim was subject to summary dismissal.
In response to the district court’s notice, Gambino asserted that his guilty plea “was not
knowingly, intelligently, and voluntarily entered” because “misadvice tendered by counsel was the
primary inducement in his relinquishment of his right to trial.” In support of this argument
Gambino cited Hill v. Lockhart, 474 U.S. 52 (1985), for the proposition that a guilty plea entered
upon the legal advice of trial counsel falling below “the range of competence demanded of
attorneys in criminal cases” is constitutionally deficient. Gambino averred in a supplemental
affidavit filed with his written response to the district court’s notice of intent to dismiss that, when
he indicated he wished to “pull back” his guilty plea, trial counsel became agitated and repeated
that “he would appeal the case, the case would be overturned on appeal, and he would file a lawsuit
because [the County] was responsible for ‘putting the spoon in [Gambino’s] hands.’” According
to Gambino, trial counsel indicated that “he was 100% sure” an appeal would be successful.

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Consequently, Gambino asserted that the record shows “he would not have pleaded guilty in the
absence of the erroneous advice of counsel coupled with the promises of a civil suit thereafter.”
The district court determined Gambino was entitled to an evidentiary hearing on the
allegation that trial counsel promised “a guaranteed appeal result,” reasoning that such a promise
fell “outside the standards for competent counsel” and Gambino allegedly “would not have pled
guilty but for this promise.” Unlike the allegation that trial counsel promised success on appeal,
however, the district court observed that “Gambino did not respond” to the notice of intent to
dismiss “with any argument regarding counsel’s statements related to a civil lawsuit.”
Consequently, the district court dismissed Gambino’s allegation that his trial counsel rendered
ineffective assistance by promising to file a civil lawsuit.
Gambino faults the district court for summarily dismissing his allegation related to the
promise of a civil lawsuit because he contends he “did respond to the notice relating” to that
allegation. In support of this argument, Gambino cites the following statement from his written
response to the district court’s notice of intent to dismiss:
It was trial counsel’s affirmative misadvice regarding [Gambino’s]
guaranteed success on appeal in overturning his conviction, coupled with the
prospect of a civil suit following his plea, that [he] acceded to trial counsel’s
pressure to plead guilty.
Gambino’s argument is meritless for at least two reasons. First, the civil lawsuit allegation
was not summarily dismissed because Gambino did not respond to the district court’s notice of
intent to dismiss at all. Rather, the district court summarily dismissed the allegation because
Gambino did not respond to the notice of intent to dismiss with any argument supporting the
allegation. That is, unlike the allegation related to trial counsel’s alleged promise of a successful
appeal, Gambino did not respond with argument showing why the civil lawsuit allegation was not
subject to summary dismissal for the reasons contained in the district court’s notice of intent to
dismiss. Second, both before the district court and this Court on appeal, Gambino has failed to
present cogent argument or legal authority showing why his “response,” which is substantively
synonymous with the conclusory allegation presented in his amended petition, precluded summary
dismissal of the civil lawsuit allegation. For example, Gambino does not argue that the alleged
promise to file a civil lawsuit, in which his trial counsel indicated Gambino might recover damages,
somehow constituted erroneous legal advice. An appellant forfeits issues unsupported by cogent

5
argument or relevant legal authority. Passons v. State, 168 Idaho 668, 675, 485 P.3d 164, 171 (Ct.
App. 2020). Consequently, Gambino has forfeited any claim of error in the summary dismissal of
the allegation that trial counsel was ineffective by promising to file a lawsuit on Gambino’s behalf.
B. Persistent Violator Claim
Gambino contends that it was error to summarily dismiss his allegation that trial counsel
was ineffective because he “affirmatively misadvised” Gambino regarding the parameters of
Idaho’s persistent violator sentencing enhancement. Gambino’s amended petition alleged that, to
assuage his concerns over future application of Idaho’s persistent violator sentencing
enhancement, his trial counsel erroneously advised that the enhancement applied only to those
convicted of the same felony three times, not those convicted of any three felonies. 3 The district
court summarily dismissed this allegation because Gambino “did not provide any reason why a
commission of a possible future crime that might trigger persistent violator charges would
influence his decision to plead guilty in this case.” The district court observed in its notice of
intent to dismiss that a conviction for the underlying criminal charge did not expose Gambino to
enhanced penalties for being a persistent violator as he had no prior felony convictions. In light
of this, the district court reasoned that Gambino’s “mere conclusory statement that [he] was
concerned about committing future felonies” was insufficient, standing alone, “to show a valid
claim that his decision to plead guilty in this case depended upon whether the persistent violator
statute would apply only after” three convictions for the same felony offense. That is, Gambino
failed to establish a genuine issue regarding whether trial counsel’s allegedly erroneous advice was
prejudicial as Strickland requires. See Strickland, 466 U.S. at 687-88. Consequently, the district
court summarily dismissed the allegation.

3
Idaho Code Section 19-2514 authorizes enhanced penalties for those convicted of a third
felony, providing:

Any person convicted for the third time of the commission of a felony,
whether the previous convictions were had within the state of Idaho or were had
outside the state of Idaho, shall be considered a persistent violator of law, and
on such third conviction shall be sentenced to a term in the custody of the state
board of correction which term shall be for not less than five (5) years and said
term may extend to life.

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According to Gambino, he was entitled to an evidentiary hearing on this allegation because
he claimed “special circumstances that would support the conclusion that he placed particular
emphasis on the potential” future application of the persistent violator enhancement. As
previously stated, in order to satisfy the prejudice prong of Strickland, a petitioner convicted upon
a guilty plea must show a reasonable probability that, but for counsel’s errors, he would not have
pled guilty and would have insisted on going to trial. Plant, 143 Idaho at 762, 152 P.3d at 633.
This requires a petitioner convicted after a guilty plea to convince the court that rejecting the plea
bargain “would have been rational under the circumstances.” Padilla v. Kentucky, 559 U.S. 356,
372 (2010).
Although Gambino averred in the supplemental affidavit submitted with his response to
the district court’s notice of intent to dismiss that “the Persistent Violator was a deal breaker,” he
did not allege facts supporting this conclusory assertion. Notably, the persistent violator
sentencing enhancement did not apply in Gambino’s underlying criminal case. The district court
indicated this in its notice of intent to dismiss as Gambino had no prior felony convictions. Thus,
Gambino would need to be convicted of two more felonies in the future to become subject to a
persistent violator enhancement. See I.C. § 19-2514. However, Gambino did not allege that he
planned to (or for some reason inevitably would) commit two additional felonies in the future or
that he had previously engaged in heretofore undetected criminal conduct that could result in two
felony convictions if discovered. Moreover, Gambino benefited from his plea agreement as it
bound the State to recommend a period of retained jurisdiction, despite his history of disciplinary
issues while in custody at the Ada County jail. Gambino’s bare, conclusory assertion that he relied
upon trial counsel’s allegedly erroneous interpretation of Idaho’s persistent violator sentencing
enhancement is insufficient to entitle him to an evidentiary hearing on the allegation. See West v.
State, 123 Idaho 250, 252, 846 P.2d 252, 254 (Ct. App. 1993) (observing that a petitioner is not
entitled to an evidentiary hearing on conclusory allegations without supporting facts). Gambino
has failed to show error in the summary dismissal of the allegation that trial counsel was ineffective
by giving erroneous advice regarding Idaho’s persistent violator sentencing enhancement.
C. Failure to Investigate Witnesses Claim
Gambino’s amended petition alleged that trial counsel was ineffective by failing to
investigate two witnesses who allegedly would have “provided evidence of a defense that the

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spoon possessed by [Gambino] was not altered and was provided to [him] by the jail.” In response
to the district court’s notice of intent to dismiss, Gambino submitted affidavits from two
individuals who were incarcerated with him in the Ada County jail. One individual averred that
inmates housed in the “medical wing,” as Gambino was, should have received a paper spork
instead of a plastic spoon. Both individuals averred that sharpened plastic utensils circulated
within the jail without being removed and were placed in inmate bed rolls while Gambino was
incarcerated there. The district court observed that the anticipated witness testimony would not
have changed trial counsel’s advice to plead guilty because Gambino admitted attempting to
sharpen a spoon to his counsel. Because the attempted sharpening was the basis for his conviction,
the district court summarily dismissed Gambino’s allegation of ineffective assistance of counsel
for failure to investigate the witnesses.
When the allegedly deficient performance of counsel is a failure to investigate or discover
potentially exculpatory evidence, whether the petitioner was prejudiced depends upon whether the
evidence would have changed counsel’s plea recommendation. Hollon v. State, 132 Idaho 573,
578, 976 P.2d 927, 932 (1999). The outcome of this inquiry depends largely upon the likelihood
the evidence would have changed the outcome of a trial. Id. Gambino does not expressly contend
that the testimony of the two witnesses he allegedly “disclosed” 4 to trial counsel would have
changed the outcome of a trial. Rather, Gambino argues that his “possession of a spoon with a
roughened handle would not necessarily constitute guilt of possession of contraband” because two
witnesses were willing to testify that “already sharpened spoons were in regular circulation within
the jail,” and this would have “encouraged [Gambino] and his counsel to try the case to a jury.”
According to Gambino, it is “highly likely” trial counsel “would have encouraged [Gambino] to
proceed to trial on such a weak case.” We disagree.
Gambino presents neither cogent argument nor legal authority to support his conclusory
assertion that the presence of sharpened spoons circulating within the jail could serve as a defense

4
Neither Gambino’s amended petition for post-conviction relief nor his supplemental
affidavit submitted in response to the district court’s notice of intent to dismiss indicate precisely
what he disclosed to trial counsel about the two proposed witnesses or when the alleged disclosure
took place.

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to a charge of possession, introduction, or removal of certain articles into or from correctional
facilities. Even if Gambino’s argument was correct, trial counsel’s alleged failure to investigate
the two witnesses would not be prejudicial. In summarily dismissing the allegation that trial
counsel’s investigation was inadequate, the district court noted that Gambino’s attempt to sharpen
the spoon, regardless of its condition upon entering his possession, violated I.C. § 18-2510(3)(c).
Gambino’s amended petition alleges that he admitted attempting to sharpen the spoon to his trial
counsel. A police report contained in Gambino’s presentence materials indicates that jail staff
observed Gambino on his hands and knees in his jail cell attempting to “grind a plastic jail-issued
spoon into a sharp, pointed weapon.”5 We cannot say that the proposed testimony of the witnesses
Gambino allegedly disclosed to trial counsel holds sufficient potential of acquittal for Gambino to
generate a genuine issue regarding whether the evidence would have changed trial counsel’s plea
recommendation. Gambino has failed to show error in the summary dismissal of his allegation
that trial counsel was ineffective for failing to investigate the witnesses Gambino allegedly
disclosed.
IV.
CONCLUSION
Gambino has failed to show error in the district court’s decision to summarily dismiss his
allegations of ineffective assistance of trial counsel. Accordingly, the judgment dismissing
Gambino’s amended petition for post-conviction relief is affirmed.
Judge HUSKEY and Judge BRAILSFORD, CONCUR.

5
Gambino moved the district court to augment the record with a copy of his presentence
investigation report from the underlying criminal case, and his motion was granted. It is unclear,
however, whether the document was ever admitted into evidence in the district court.

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