State v. Pedro
| Decision Date | 24 August 2020 |
| Docket Number | NO. CAAP-19-0000439,CAAP-19-0000439 |
| Citation | 469 P.3d 594 (Table) |
| Parties | STATE of Hawai‘i, Plaintiff-Appellee, v. Theo PEDRO, Defendant-Appellant |
| Court | Hawaii Court of Appeals |
On the briefs:
Shawn A. Luiz, for Defendant-Appellant.
Richard B. Rost, Deputy Prosecuting Attorney, County of Maui, for Plaintiff-Appellee.
(
Defendant-Appellant Theo Pedro (Pedro ) appeals from the Judgment; Conviction and Sentence; Notice of Entry (Judgment ), entered on May 15, 2019, in the Family Court of the Second Circuit (Family Court ).1 After pleading no contest, Pedro was convicted of four counts of Sexual Assault in the Second Degree, in violation of Hawaii Revised Statutes (HRS ) § 707-730(1)(a) (2014),2 and sentenced to ten years of imprisonment on each count, to be served concurrently, with credit for time served.
Prior to sentencing, Pedro filed a motion to withdraw his no contest plea. The Circuit Court heard the motion and orally denied it on May 10, 2019. The Circuit Court entered its written "Findings of Fact, Conclusions of Law, and Order Denying Defendant's Motion to Withdraw No Contest Plea" on June 18, 2019.
On appeal, Pedro contends that the Circuit Court abused its discretion in: (1) denying Pedro's motion to withdraw his no contest plea prior to sentencing; and (2) sentencing Pedro to the "open" ten-year term of imprisonment. In connection with his first point of error, Pedro challenges the Circuit Court's Findings of Fact (FOF ) Nos. 2, 4, 5, and 6, and Conclusions of Law (COL ) Nos. 12 and 13.
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, as well as the relevant statutory and case law, we resolve Pedro's contentions as follows.
(1) "Hawai‘i law regarding plea withdrawals is governed by [Hawai‘i Rules of Penal Procedure (HRPP ) ] Rule 32(d) (2012) and case law construing the rule." State v. Sanney, 141 Hawai‘i 14, 24, 404 P.3d 280, 290 (2017). HRPP Rule 32(d) provides, in relevant part:
(d) Withdrawal of Plea . A motion to withdraw a plea of guilty or of nolo contendere may be made before sentence is imposed or imposition of sentence is suspended; provided that, to correct manifest injustice the court, upon a party's motion submitted no later than ten (10) days after imposition of sentence, shall set aside the judgment of conviction and permit the defendant to withdraw the plea.
Under Rule 32(d), a defendant does not have an absolute right to withdraw his plea of guilty or no contest. See State v. Krstoth, 138 Hawai‘i 268, 274, 378 P.3d 984, 990 (2016) ; State v. Smith, 61 Haw. 522, 523, 606 P.2d 86, 88 (1980). However, "a liberal approach is to be taken when a motion to withdraw a plea is made under [ Rule] 32(d) before sentence is imposed." State v. Nguyen, 81 Hawai‘i 279, 286, 916 P.2d 689, 696 (1996) (quoting State v. Adams, 76 Hawai‘i 408, 411, 879 P.2d 513, 516 (1994) ).
The court should grant such a motion before sentencing "if the defendant has presented a fair and just reason for his [or her] request and the State has not relied upon the plea to its substantial prejudice[.]" State v. Gomes, 79 Hawai‘i 32, 36, 897 P.2d 959, 963 (1995) (quoting Adams, 76 Hawai‘i at 411, 879 P.2d at 516 ); see also State v. Guity, 144 Hawai‘i 557, 561, 445 P.3d 138, 142 (2019) . There are, in turn, "two fundamental bases of demonstrating ‘fair and just reasons’ for granting withdrawal of a plea: (1) the defendant did not knowingly, intelligently or voluntarily waive his or her rights; or (2) changed circumstances or new information justify withdrawal of the plea."3 Gomes, 79 Hawai‘i at 37, 897 P.2d at 964 (citing State v. Jim, 58 Haw. 574, 574 P.2d 521 (1978) ). Under either of the Gomes bases, "[t]he defendant has the burden of establishing plausible and legitimate grounds for the withdrawal." Id. at 36, 897 P.2d at 963 (quoting State v. Costa, 64 Haw. 564, 565, 644 P.2d 1329, 1331 (1982) ).
When a trial court denies a motion to withdraw a plea, "the trial court's determination will not be disturbed on appeal unless abuse of discretion is clearly shown." Nguyen, 81 Hawai‘i at 286, 916 P.2d at 696 (citing Smith, 61 Haw. at 523, 606 P.2d at 88 ). "The burden of establishing abuse of discretion is on appellant and a strong showing is required to establish it." Id. at 286, 916 P.2d at 696 (quoting State v. Faulkner, 1 Haw. App. 651, 654, 624 P.2d 940, 943 (1981) ). An abuse of discretion occurs "only if the trial court has clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant." Id. at 286-87, 916 P.2d at 696-97 (citing State v. Merino, 81 Hawai‘i 198, 211, 915 P.2d 672, 685 (1996) ).
Pedro contends that he met his burden to withdraw his no contest plea because "the record supports [his] version of events," which is that "he did not understand his charges, he did not receive his copy of the discovery until post change of plea and there was an alleged complaining witness recantation that was not investigated."
Pedro's assertion that he did not understand the charges against him appears to raise a claim under the first Gomes basis — that he did not knowingly, intelligently or voluntarily waive his rights. In this regard, Pedro challenges FOF Nos. 2 and 4, which state:
The record supports these findings, and we are not left with a definite and firm conviction that a mistake has been made. At a hearing on January 7, 2019, Pedro's then-counsel informed the Circuit Court that Pedro and the State had reached a plea agreement, under which Pedro agreed, among other things, to enter a no contest plea to four counts of sexual assault in the second degree. At that time, pursuant to HRPP Rule 11(c), the Circuit Court carefully reviewed the entire change-of-plea form with Pedro. At the outset, the Circuit Court noted the presence of the interpreter to assist Pedro. Pedro acknowledged that he had the assistance of the interpreter, as well as his attorney, in reviewing the change of plea form. The Circuit Court then established Pedro's age, level of education, and language competency, and confirmed that at the time of the hearing, Pedro had a clear mind.
During the colloquy with the Circuit Court, Pedro confirmed he understood the original charges against him, as well as the reduced charges of sexual assault in the second degree. The following exchange occurred:
The Circuit Court also confirmed that Pedro understood the penalties, including the maximum term of imprisonment, that could be imposed for the offenses to which Pedro was pleading.
Regarding Pedro's jury trial waiver, the following exchange took place:
To continue reading
Request your trial