State v. Detweiler, 16878

• Court: Court of Appeals of Idaho
• Writing for the Court: PER CURIAM
• Citation: 767 P.2d 286,115 Idaho 443
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Robert J. DETWEILER, Defendant-Appellant.
• Docket Number: No. 16878,16878
• Decision Date: 10 January 1989

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767 P.2d 286 115 Idaho 443 STATE of Idaho, Plaintiff-Respondent,
v.
Robert J. DETWEILER, Defendant-Appellant. No. 16878. Court of Appeals of Idaho. Jan. 10, 1989.

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[115 Idaho 444] Anton Hohler of Tway & Tway, Boise, for defendant-appellant.

Jim Jones, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., for plaintiff-respondent.

SUBSTITUTE OPINION

The Court's prior opinion, dated November 3, 1988, is hereby withdrawn.

PER CURIAM.

Robert Detweiler appeals from the district court's appellate decision affirming an order denying Detweiler's I.C.R. 33(c) motion to withdraw his guilty plea and affirming a judgment of conviction, including the sentence imposed, for driving under the influence. The issues are whether the magistrate abused his discretion in denying the Rule 33(c) motion and whether the sentence imposed is excessive. We affirm in part and vacate in part. We remand the case for reconsideration of the sentence.

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[115 Idaho 445] While driving his automobile in Canyon County, Detweiler was involved in a collision with another vehicle. The collision resulted in the death of the other driver. Detweiler maintained that his car was struck from behind when he suddenly changed lanes to avoid a dog in the roadway. The police officer who investigated the collision arrested Detweiler for driving under the influence.

During his arraignment Detweiler sought a continuance so he could obtain counsel. At this stage of the proceedings Detweiler received, signed and acknowledged his understanding of a written form detailing his rights as a criminal defendant. The arraignment was continued. Detweiler sought the advice of counsel. Detweiler alleges that his counsel advised him to plead guilty because his test for blood alcohol concentration (BAC) showed .11 percent, an amount which the attorney allegedly described as "way over the limit." Just prior to entering his plea of guilty at the continued arraignment, Detweiler was told by his attorney to appear without counsel and to plead guilty in the hope that the court would be more lenient. Detweiler appeared before the magistrate, said he was appearing without counsel and entered a plea of guilty. The magistrate questioned Detweiler about his decision to plead guilty and accepted the plea as voluntary and knowing. The conviction was Detweiler's first for driving under the influence.

A week later Detweiler appeared, with his attorney, for sentencing. Because the collision had resulted in a fatality, the magistrate concluded there were aggravating circumstances requiring a strict sentence. There is no indication in the record that the magistrate determined whether Detweiler's actions were the actual cause of the fatality. Nevertheless, the magistrate imposed the maximum sentence of six months in the county jail and a fine of $1,000. The magistrate suspended ninety days of the jail sentence.

With the assistance of new counsel, who has also represented Detweiler in the appeals, Detweiler filed a Rule 33(c) motion to withdraw his plea. Following a hearing, the magistrate found Detweiler's plea was knowing and voluntary. The motion was denied.

Detweiler appealed to the district court, challenging the order denying his motion and the sentence imposed upon the judgment of conviction. The district court remanded the case to the magistrate for supplemental findings on whether the plea of guilty was voluntary and knowing. The magistrate made the supplemental findings. Based upon the record, including the supplemental findings, the district court affirmed the order denying Detweiler's Rule 33(c) motion and affirmed the judgment imposing the jail sentence. Detweiler then brought this appeal.

When a district court acts in its appellate capacity, we review the record independently of, but with due regard for, the decision of the district court. Accordingly, we will examine the magistrate's decision and findings and reach a determination of the issues based upon our independent review of the record. State v. Hayes, 108 Idaho 556, 700 P.2d 959 (Ct.App.1985).

I. MOTION TO WITHDRAW PLEA

Generally speaking, the decision whether to grant or deny a motion to withdraw a guilty plea lies in the discretion of the trial court. State v. Freeman, 110 Idaho 117, 714 P.2d 86 (Ct.App.1986). Appellate review of the denial of a motion to withdraw a plea is limited to whether the trial court exercised sound discretion as distinguished from arbitrary action. Id. Of course, if the plea is legally defective, relief must be granted. Conversely, if the plea has been made knowingly, intelligently and voluntarily, it usually cannot be withdrawn after sentencing. State v. Simons, 112 Idaho 254, 731 P.2d 797 (Ct.App.1987). This strict standard is justified to ensure that the accused is not encouraged to plead guilty to test the weight of potential punishment and then withdraw the plea if the sentence is unexpectedly severe. Id.; State v. Freeman, supra.

Accordingly, under Rule 33(c), I.C.R., a plea of guilty may be withdrawn after sentencing only to correct a manifest injustice.

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[115 Idaho 446] The defendant has the burden of demonstrating a manifest injustice. See State v. Henderson, 113 Idaho 411, 744 P.2d 795 (Ct.App.1987). An established abridgement of a constitutional right is deemed a manifest injustice as a matter of law. Id.; State v. Simons, supra. A

We first examine whether Detweiler's plea of guilty was voluntary and knowing. He contends his plea was involuntary because he was laboring under a misapprehension of the law. This position is based upon the alleged misinformation given him by former counsel that .11 percent BAC was "way over the limit." Detweiler later learned that in Idaho a .10 percent BAC...