76 Hawai'i 408, State v. Adams

• Decision Date: 29 August 1994
• Docket Number: No. 16721,16721
• Citation: 879 P.2d 513,76 Hawaii 408
• Parties: 76 Hawai'i 408 STATE of Hawai'i, Plaintiff-Appellee, v. Barton J. ADAMS, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 513

879 P.2d 513

76 Hawai'i 408

STATE of Hawai'i, Plaintiff-Appellee, v. Barton J. ADAMS, Defendant-Appellant.

No. 16721.

Supreme Court of Hawai'i.

Aug. 29, 1994.

Lynn Hodgson Park, Dewey H. Kim, Jr. and Joanne L. Ha'o, Deputy Attys. Gen., Honolulu, for plaintiff-appellee.

Renee M.L. Yuen (Richard K. Perkins with her on the briefs, of Yuen & Perkins), Honolulu, for defendant-appellant.

Before MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, JJ., and Circuit Court Judge AIONA in Place of RAMIL, J., Recused.

KLEIN, Justice.

This appeal involves a plea agreement entered into between defendant-appellant Barton J. Adams and the State of Hawai'i. Faced with a 21-count indictment for medical assistance (Medicaid) fraud and theft, Adams agreed to plead no contest to one count of Medicaid fraud in violation of Hawai'i Revised Statutes (HRS) § 346-43.5 (1985) in exchange for, inter alia, the State's promise to "stand silent ... and not oppose" his requests for a deferred acceptance of his no contest plea (DANC) and for no jail time. Claiming that the State breached the plea agreement when it submitted a sharply critical seven-page "statement" to the Adult Probation Division (APD), Adams unsuccessfully sought to withdraw his plea. For the reasons set forth below, we vacate the circuit court's denial of Adams's motion to withdraw his plea and remand for entry of an order granting the motion.

I. FACTS

On May 4, 1990, Adams, an osteopathic physician practicing in Maui, was indicted on twenty counts of Medicaid fraud in violation of HRS § 346-43.5 (1985) and one count of theft in the second degree in violation of HRS § 708-831(1)(b) (Supp.1992). The fraud charges were based on Adams's billing the Hawai'i Medicaid Program for services he allegedly did not render, and Adams was charged with theft because he allegedly received $2,943.75 for some of these billings. On February 27, 1992, pursuant to a plea agreement, Adams pleaded no contest to one of the Medicaid fraud counts. ¹ The relevant paragraph of the plea agreement as set forth by Adams's attorney, Anthony Rankin, in a February 5, 1992 letter to Deputy Attorney General Richard Schwab, is as follows:

4. Defense counsel will request that the Court defer acceptance of Defendant's No Contest plea, upon the above conditions and any others the Court deems appropriate, and will further ask that the Defendant not receive a jail term. The State will stand silent on these issues and not oppose Defendant's requests.

After entry of the no contest plea, the circuit court ordered a pre-sentence investigation to be performed by the APD. At some point, the APD asked Schwab to provide: (1) police reports prepared during investigation of the case; (2) advice concerning to whom restitution should be paid; and (3) general input regarding preparation of the pre-sentence report. Schwab forwarded a 180-page investigation report, instructions regarding restitution, and a seven-page "statement" (the written statement) concerning Adams. Among other things, Schwab averred in the written statement that (1) Adams had been charged with just "twenty-one of the hundreds of false claims available;" (2) Adams's "sexual assaultive behavior" stemmed from his "extremely low opinion of women;" (3) Adams is "a danger to the community because of his propensity to claim that he renders medical services he is not qualified to perform and his overwhelming desire to generate bills that precludes any interest in patients to overcome their illnesses;" and (4) Adams falsely claimed to be destitute in order to have a defense attorney provided at taxpayer expense. Schwab's written statement was attached to the APD's pre-sentence report and forwarded to the court.

On May 13, 1992, the court conducted a sentencing hearing at which Adams orally moved to withdraw his no contest plea on several grounds. Adams claimed, inter alia, that he was under severe emotional distress and intoxicated when he entered his plea, and that he was misled as to, and had miscalculated, the severity of the potential penalty. Adams did not comment on the propriety of the written statement. The court denied the motion, and proceeded with the sentencing hearing. When later asked if he had anything to add, Schwab responded:

Since we've made the plea agreement, we will not oppose the recommendations of, or we will stand silent regarding jail. I think that the presentence report pretty much sets forth the position of the State unless the Court has any questions.

The court then concluded:

Well, I am concerned about the defendant's character. I think the presentence report certainly indicates a doctor who is not concerned about his patients, is concerned almost entirely about making money, and extracting as much money as he can from the system....

I think that the nature of this offense together with the plea--with the presentence report certainly suggests that a prison term should be imposed....

I will impose the five year indeterminate term provided by law.... I think that the five year term is richly deserved in this case.

The sentence was made to run concurrently with a ten-year jail term imposed on Adams for separate sexual assault convictions. Judgment was entered on May 15, 1992.

On May 22, 1992, Adams moved the court to reconsider its denial of his pre-sentence motion to withdraw his plea, again claiming that his plea was not entered into knowingly and voluntarily. During the hearing on the motion on May 27, 1992, the court granted Adams's request for an evidentiary hearing on the validity of his plea. At the hearing, Adams did not contest the appropriateness of the written statement; rather, the testimony focused primarily on whether Adams had been informed that jail time could be imposed if he pleaded no contest. When it became evident that both Schwab and Rankin were witnesses on the issue, the court continued the hearing to a later date and granted Rankin's oral motion to withdraw as counsel.

On August 18, 1992, Adams filed a supplemental memorandum in support of the motion to reconsider, alleging for the first time that the State had violated a material term of the plea agreement by submitting the written statement to the APD. Adams contended that the written statement was submitted by Schwab specifically for inclusion in the pre-sentence report and that the substance of the statement clearly violated the terms of the plea agreement. At the close of the hearing on the motion of October 30, 1992, the court expressed concern over the impact of the written statement, but stated:

I admit the question is close here, but I did not think the agreement was violated in this case.

The court notes that in every case, really, it needs and must know the circumstances surrounding the charges.... And that is essentially what happened here.

But alternatively, and even if I did feel that the plea agreement had been violated by Mr. Schwab, the remedy in this Court's mind should be resentencing before a different judge. And in light of the fact which the Court would judicially notice that the defendant is under a sentence to a term of imprisonment, neither I nor any other judge can do anything else but impose the five-year term under the provisions of [HRS] section 706-629. For those reasons I'll deny the motion.

On November 27, 1992, the circuit court entered its Findings of Fact and Conclusions of Law and Order denying Adams's motion to reconsider. Adams filed a timely notice of appeal on December 23, 1992.

II. STANDARD OF REVIEW

Hawai'i Rules of Penal Procedure (HRPP) 32(d) provides:

Withdrawal of a Plea of Guilty. A motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence shall set aside the judgment of conviction and permit the defendant to withdraw his plea.

This court has observed that a liberal approach is to be taken when a motion to withdraw a plea is made under HRPP 32(d) before sentence is imposed. The court should grant the motion if the defendant has presented a fair and just reason for his request and the State has not relied upon the plea to its substantial prejudice. However, when the motion is made after the sentence has been imposed, only a showing of manifest injustice will entitle the defendant to withdraw his or her plea. In either instance, the trial court's denial of the request is reviewed for abuse of discretion. State v. Smith, 61 Haw. 522, 523, 606 P.2d 86, 88 (1980).

An abuse of discretion occurs 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." Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 114, 839 P.2d 10, 26 (citation omitted), reconsideration denied, 74 Haw. 650, 843 P.2d 144 (1992). One such rule is HRPP 11(e)(2) which provides in pertinent part that "[f]ailure by the prosecutor to comply with ... [a plea] agreement shall be grounds for withdrawal of the plea."

The trial court's determination as to whether the prosecutor failed to comply with a plea agreement will depend on its interpretation of the meaning of that agreement. "A dispute over the meaning of a plea agreement involves questions of fact, and an appellate court's examination of factual determinations rendered below is governed by the 'clearly erroneous' standard." State v. Yoon, 66 Haw. 342, 349, 662 P.2d 1112, 1117 (1983) (citations omitted). A factual finding "is clearly erroneous when, despite evidence to support the finding, the appellate court is left with the definite and firm conviction that a mistake has been committed." State v. Furutani, 76 Hawai'i 172, 179, 873 P.2d 51, 58 (Sup.1994) (citations omitted).

III. DISCUSSION

Adams argues that he should have been allowed to withdraw his plea after sentencing because the State breached its promise to stand silent...