Opinion No. 59
from the District Court of the Fifth Judicial District, State
of Idaho, Blaine County. Hon. Robert J. Elgee, District
granting post-conviction relief, vacated.
Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen,
Deputy Attorney General, Boise, for appellant.
Kenneth K. Jorgensen argued.
Parmenter Rivera LLP; Nathan D. Rivera, Blackfoot, for
D. Rivera argued.
GRATTON, CHIEF JUDGE
State appeals from the district court's judgment granting
Cuc Phuoc Ho's petition for post-conviction relief. We
FACTUAL AND PROCEDURAL BACKGROUND
2004, Ho pled guilty to distribution of marijuana and
possession of a controlled substance, both felonies. On
October 4, 2004, the district court imposed a sixty-day
sentence, withheld the judgment, and placed Ho on probation
for seven years. On May 3, 2007, Ho filed a motion to set
aside his guilty pleas and enter a dismissal; however, the
motion was never set for hearing or ruled on by the court. On
May 25, 2012, Ho filed a similar motion, which was granted on
June 14, 2012. In 2013, Ho was charged with unlawful
possession of a firearm on the basis that on May 17, 2012, he
possessed two firearms knowing he was a convicted felon. He
pled guilty and the court imposed a four-year sentence, with
two years determinate, suspended the sentence, and placed Ho
2015, Ho was detained by immigration officials and
incarcerated for being an aggravated felon. On June 20, 2016,
Ho filed a petition for post-conviction relief, making three
claims of ineffective assistance of counsel. He first claimed
that counsel failed to inform him of the severe immigration
consequences of pleading guilty to unlawful possession of a
firearm. Second, he claimed that counsel was ineffective for
advising him to plead guilty to unlawful possession of a
firearm because that charge would have been dropped when his
previous felony conviction was dismissed. Finally, he claimed
counsel was ineffective for failing to set his 2007 motion
for a hearing.
district court expedited the post-conviction proceeding in
order to render a decision prior to the scheduled deportation
hearing to determine Ho's removability on account of his
conviction for unlawful possession of a firearm. The district
court denied the State's motion for summary dismissal and
held an evidentiary hearing. The district court issued
findings of fact and conclusions of law, and granted the
relief by setting aside Ho's 2013 guilty plea for
unlawful possession of a firearm and vacating his conviction
and sentence. The State timely appeals.