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Frank Gerardo v. State of Idaho

August 2, 2012

FRANK GERARDO,
PETITIONER-APPELLANT,
v.
STATE OF IDAHO,
RESPONDENT.



Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael R. McLaughlin, District Judge.

The opinion of the court was delivered by: Walters, Judge Pro Tem

2012 Unpublished Opinion No. 572

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Frank Gerardo appeals from the district court's order denying his petition for post-conviction relief. Gerardo asserts that the district court erroneously denied his claims of ineffective assistance of trial and appellate counsel. We affirm the order.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts from petitioner's underlying criminal case are stated in State v. Gerardo, 147 Idaho 22, 205 P.3d 671 (Ct. App. 2009) as:

On January 24, 2006, three masked men wearing dark clothing, one with a blue bandana, entered the Lotus Garden restaurant brandishing firearms. They demanded money from the owner, Hong Ha, and Ha's daughter, Karen, and threatened to shoot them if they did not comply. When the men realized that Hong's wife was on the telephone with the police in another portion of the restaurant, they fled the building, got into a white Pontiac Grand Prix, and sped away.

The police soon located the automobile, and a high-speed chase ensued during which one or more of the Pontiac's occupants shot at the pursuing officers.

The chase ended when the Pontiac's driver lost control and drove into an irrigation canal. The vehicle occupants fled on foot and avoided immediate apprehension. A short time later, however, Keith Ogburn was found lying in a field and was taken into custody. Johnny Gonzalez was arrested after he was discovered hiding in the weeds on the bank of the canal. He was sporting a blue bandana around his neck. About two and one-half hours after the search was initiated, Gerardo was seen walking down a residential street near the crash scene and was also arrested. All three of the men were wearing dark clothing and were cold, muddy and wet from the waist down.

The three men were indicted for burglary, Idaho Code section 18-1401, and attempted robbery, I.C. §§ 18-6501, -306, and the indictment sought an enhancement of their burglary sentences for use of a firearm in the course of that crime, I.C. § 19-2520. The three men were tried together and none of them testified.

Gerardo was found to be guilty of both felonies and subject to the sentence enhancement for use of a firearm. The district court imposed a unified sentence of ten years with five years determinate for burglary, a consecutive unified sentence of fifteen years with seven and one-half years determinate for attempted robbery, and a separate, consecutive unified sentence of fifteen years with seven and one-half years determinate for the firearm enhancement. Gerardo subsequently filed a motion to vacate the firearm enhancement, contending that it was illegal because the jury was erroneously instructed regarding the enhancement. The district court denied the motion.

Gerardo appeal[ed], asserting several trial errors and error in the denial of his motion to eliminate the sentence enhancement.

Id. at 24, 205 P.3d at 673 (footnote omitted). This Court affirmed Gerardo's convictions, but vacated the portion of his sentence imposed as an enhancement for use of a firearm and remanded the case for entry of an amended judgment. Id. at 31, 205 P.3d at ...


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