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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 48632

GUY ROGER BRACALI GAMBINO,

aka GUY ROGER BRACALIGAMBINO,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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Filed: August 31, 2022

Melanie Gagnepain, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

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 This Court (in an unpublished 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.

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 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 postconviction 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 
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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. 

 

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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”4to 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.