79 Hawai'i 32, State v. Gomes, 16476

• Decision Date: 09 June 1995
• Docket Number: No. 16476,16476
• Citation: 897 P.2d 959,79 Hawaii 32
• Parties: 79 Hawai'i 32 STATE of Hawai'i, Plaintiff-Appellee, v. Ronald GOMES, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 959

897 P.2d 959

79 Hawai'i 32

STATE of Hawai'i, Plaintiff-Appellee, v. Ronald GOMES, Defendant-Appellant.

No. 16476.

Supreme Court of Hawai'i.

June 9, 1995.

Anthony L. Ranken, on the briefs, Wailuku, for defendant-appellant.

Mark R. Simonds, Deputy Pros. Atty., on the briefs, Wailuku, for plaintiff-appellee.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

KLEIN, Justice.

We granted Ronald Gomes's application for certiorari after the Intermediate Court of Appeals (ICA) affirmed the order of the second circuit court denying Gomes's Hawai'i Rules of Penal Procedure (HRPP) Rule 32(d) motion to withdraw his nolo contendere plea (Motion). ¹ Based on our review of the record, we vacate the ICA's decision and order that it be depublished.

I. FACTS

Gomes was charged by complaint with Sexual Assault in the First Degree, Hawai'i Revised Statutes (HRS) § 707-730 (Supp.1992), and Murder in the Second Degree, HRS § 707-701.5 (Supp.1992), allegedly committed on November 24, 1991, on the island of Maui. At the time of the alleged offense, Gomes was in the company of Lucio Gonzalez and James Houdasheldt. ²

After initially pleading not guilty, Gomes changed his plea on the murder charge to nolo contendere, or "no contest," on June 26, 1992. ³ In exchange for the change of plea, the prosecution dropped the sexual assault charge.

The change of plea hearing was conducted in accordance with Rule 11(c), HRPP (1988); however, Gomes did not explicitly admit guilt nor did he furnish the court with his version of the incident. Instead, and at the court's request, the prosecutor summarized the particulars of the offense. The essence of the prosecutor's description was that Gomes and Gonzalez both sexually assaulted the victim at knife point. Gomes then purportedly restrained the victim while Gonzalez stabbed her repeatedly. After the prosecution's description of the incident, the court asked Gomes whether he would stipulate to the facts as described by the prosecution. Defense counsel stated, "we don't stipulate that every particular matter that the [prosecution] just recited is absolutely accurate, but Mr. Gomes and I have reviewed the evidence against him, ... and based on our review of the evidence we are willing to enter the stipulation." Furthermore, Gomes signed a "No Contest" form indicating that "[f]or the purpose of this Court's acceptance of this plea of no contest, the Defendant stipulates that there is a factual basis for the charge." Subsequently, the court set the date of sentencing for August 26, 1992.

The Motion, which was filed on August 24, 1992, ⁴ and heard on August 26, was predicated on an "Emphatic Statement" (Statement) allegedly signed by Gonzalez on August 12, 1992. The Statement exculpates Gomes from complicity in the offenses. The Statement specifically relates that: (1) Gonzalez forced the victim to engage in a sex act with Gomes at knife point; (2) Gomes had not intended to engage in the act and tried to dissuade Gonzalez from using the knife; (3) Gomes did not assist Gonzalez in killing the victim; (4) Gonzalez performed all the acts necessary to kill the victim, without assistance from anyone else; and (5) Houdasheldt assisted Gonzalez in disposing of the body. ⁵

At the hearing on the Motion, the court received the Statement and heard testimony from Gonzalez, Gomes, and T.J. Davis, a fellow inmate of Gomes and Gonzalez at the Maui Community Correctional Center (MCCC), who typed the Statement.

Davis's testimony included the following statements: (1) he merely acted as a scribe in preparing the Statement; (2) Gonzalez and Gomes, together, brought him a draft of the Statement on a legal pad and asked him to type it; ⁶ (3) he typed the Statement and returned it to Gomes and Gonzalez; (4) he was not certain whether he saw Gonzalez sign the Statement; (5) he suffers from a "bi-polar disorder" that can affect his reading comprehension; and (6) he relied on Gonzalez to proofread the Statement.

Gonzalez's testimony included the following statements: (1) English is not his first language; (2) nevertheless, he can read, write, and comprehend the language, albeit with some difficulty; (3) the statement he gave to the police was only partly true; (4) he wrote the draft on the same day that he gave it to Davis to type; (5) the Statement was voluntary, and he did not confer with Gomes before he wrote the draft; (6) he was alone when he delivered the draft to Davis and when he received the Statement from him; (7) the Statement was true; and (8) he signed the Statement in the cellblock and later gave a copy to his attorney and to Gomes.

Gomes's testimony included the following statements: (1) he was innocent; (2) he was scared when the police interviewed him; (3) as a result of this fear, parts of his statement to the police, while not lies, were inaccurate; (4) he was not with Gonzalez when the latter delivered the draft to Davis; and (5) when Davis returned the typed Statement to Gonzalez, he (Gomes) was in the area but not in close proximity to Gonzalez.

At the conclusion of the hearing, the circuit court initially stated that its decision would have been simplified if the prosecution had produced evidence of substantial prejudice. Acknowledging that no such evidence was presented, the court then asked the prosecutor to submit an affidavit indicating any prejudice. ⁷ The court also summarized Davis's testimony: (1) while in MCCC, Davis received a draft of the Statement from both Gomes and Gonzalez, put the draft in typewritten form and gave the typewritten form to both men; and (2) Davis did not know who actually authored or signed the Statement. Finally, the court observed that this testimony was "at variance with" that of Gomes and Gonzalez. Consequently, the court opined that it believed the Statement to be "questionable" in both origination and purpose.

The court did not make a specific finding as to who authored the Statement. However, in its extensive findings of fact (FOF) and conclusions of law (COL), the court observed that:

Applying the first of three (3) inquiries to Defendant Gomes's motion to withdraw his plea of no contest, the issue is whether [Gomes] presented fair and just reasons for his request.

Analysis of the record in light of the applicable case law indicates that [Gomes] has failed to present any reason for his requested withdrawal, let alone a fair and just reason....

[Gomes] has failed to allege or produce a scintilla of evidence of force, mistake, misapprehension, fear, inadvertence, ignorance of right, or misunderstanding of the consequences of his plea of no contest....

The second of the three (3) inquiries ... entails the examination of the grounds for the motion, and a determination as to whether [Gomes] has established their plausibility and legitimacy. Here [Gomes's] grounds consisted of an allegation of innocence and the production of an "Emphatic Statement" by co-defendant Gonzalez which tended to exculpate him.

Regarding the allegation of innocence, [Gomes] delayed his claim till the eve of sentencing. [He] waited over eight (8) months from his initial appearance in District Court and two (2) months from his factual stipulation on June 26, 1992.... Common sense prevents crediting [Gomes's] claim [that unspecified fear motivated his silence] with any measure of plausibility or legitimacy[;] ... it would be patently unreasonable for [Gomes] to rest upon his belief in his innocence and fail to test it against reality.

As to co-defendant Gonzalez's "Emphatic Statement", belief in its legitimacy would create insurmountable logical inconsistencies. To find Gonzalez's "Emphatic Statement" valid one must disbelieve all earlier testimony and statements and assume that for a substantial period of time [Gomes] and [Gonzalez] conspired to protect Houdasheldt. The timing in the production of the "Emphatic Statement" also renders it suspect; the factual allegations contained in the statement cannot be construed as newly discovered evidence only newly presented. Yet, as with his claim of innocence, [Gomes] delayed the expression of the scenario contained in the "Emphatic Statement" till the eleventh hour.

Finally, the testimony provided at the hearing sheds [sic] further doubt on the legitimacy of the "Emphatic Statement". The testimony of T.J. Davis was especially significant in two (2) crucial areas: 1) it established that the authorship of the "Emphatic Statement" could not be verified; and 2) it suggested the strong likelihood of collusion between [Gomes] and [Gonzalez] in the production of the document.

Analysis of the grounds put forth by [Gomes] in support of his motion to withdraw his plea of no contest show them to be both implausible and illegitimate. The delay in [Gomes's] claim of innocence, the purported reasons for the delay, and the overwhelming opposing evidence, including Gomes's own statement and stipulation, all contravene that claim's plausibility and legitimacy. Likewise, the timing, factual assertions, and questionable origin of co-defendant Gonzalez's "Emphatic Statement" militate against its plausibility and legitimacy....

The third and final inquiry ... involves a determination of whether the State relied upon the plea to its substantial prejudice.... [Although] the State never argued or demonstrated any actual prejudice, let alone prejudice arising to a substantial level ..., [the] absence of prejudice nullifies the issue. In other words, the lack of prejudice to the State cannot support or resurrect an otherwise meritless motion by the Defendant. [Citations omitted.]

The ICA affirmed, holding that although the circuit court applied the wrong analysis, it did not abuse its discretion in denying Gomes's motion:

The [circuit] court applied a "trifurcated" examination of the evidence presented below for the purpose of determining the propriety of allowing the withdrawal of [Gomes's] nolo contendere plea. Thus, the...