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Ho v. State

Court of Appeals of Idaho

November 14, 2017

CUC PHUOC HO, Petitioner-Respondent,
v.
STATE OF IDAHO, Respondent-Appellant.

         2017 Opinion No. 59

         Appeal from the District Court of the Fifth Judicial District, State of Idaho, Blaine County. Hon. Robert J. Elgee, District Judge.

         Judgment granting post-conviction relief, vacated.

          Hon. 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 respondent.

          Nathan D. Rivera argued.

          GRATTON, CHIEF JUDGE

         The State appeals from the district court's judgment granting Cuc Phuoc Ho's petition for post-conviction relief. We reverse.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In 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 on probation.

         In 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.

         The 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.[1] 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.

         II. ...


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