State v. Jim, 5900

• Decision Date: 03 February 1978
• Docket Number: No. 5900,5900
• Citation: 574 P.2d 521,58 Haw. 574
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. James Clifton JIM, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 521

574 P.2d 521

58 Haw. 574

STATE of Hawaii, Plaintiff-Appellee, v. James Clifton JIM, Defendant-Appellant.

No. 5900.

Supreme Court of Hawai'i.

Feb. 3, 1978.

Syllabus by the Court

1. A defendant does not have an absolute right to withdraw his guilty plea.

2. Where the request for withdrawal of a guilty plea is made after sentence has been imposed, the "manifest injustice" standard is to be applied; however, where the motion is presented to the trial court before the imposition of sentence, a more liberal approach is to be taken, and the motion should be granted if the defendant has presented a "fair and just reason" for his request and the State has not relied upon the guilty plea to its substantial prejudice.

3. The trial court may hold an evidentiary hearing to enable it to weigh and to determine the plausibility and legitimacy of defendant's reasons for withdrawal of his plea.

4. Where, in the sound exercise of its discretion, the trial court determines that no plausible and legitimate reason exists for allowing the motion, its determination will be sustained unless it is clearly shown that the trial court has abused its discretion.

Myles T. Yamamoto, Deputy Public Defender, Honolulu (Marie N. Milks, Honolulu, with him on the brief), for defendant-appellant.

Allan S. Chock, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

MENOR, Justice.

Upon his plea of guilty, the defendant was in due course sentenced for the offense first degree theft. Prior to sentence being imposed, however, he had moved for withdrawal of his guilty plea. His motion was denied, and this denial constitutes the basis for the defendant's appeal from the judgment and sentence of the trial court.

H.R.Cr.P. Rule 32(d) under which the motion for withdrawal of guilty plea was made provided as follows:

Withdrawal of Plea of Guilty. A motion to withdraw a plea of guilty or of 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 may set aside the judgment of conviction and permit the defendant to withdraw his plea. ¹

A defendant does not have an absolute right to withdraw his guilty plea, and a motion for withdrawal of a guilty plea under the foregoing rule must therefore be determined under either of two established principles. ² Where the request is made after sentence has been imposed, the "manifest injustice" standard is to be applied. H.R.Cr.P. Rule 32(d) (now H.R.P.P. Rule 32(d)); United States v. Youpee, 419 F.2d 1340 (9th Cir. 1969); Sherman v. United States, 383 F.2d 837 (9th Cir. 1967); Paradiso v. United States, 482 F.2d 409 (3rd Cir. 1973). But where the motion is presented to the trial court before the imposition of sentence, a more liberal approach is to be taken, and the motion should be granted if the defendant has presented a fair and just reason for his request and the State has not relied upon the guilty plea to its substantial prejudice. United States v. Webster, 468 F.2d 769 (9th Cir. 1972); Paradiso v. United States, supra. See also State v. Dicks, supra. "What the manifest injustice rule seeks to avoid is an opportunity for the defendant to test the severity of sentence before finally committing himself to a guilty plea." Sherman v. United States, supra, at 840. But the risk of prejudice to the State and to the efficient administration of criminal justice is much less apparent where the withdrawal is requested before final judicial action is taken on the defendant's plea.

The defendant in this case correctly points out that his guilt or innocence is not the issue on a motion to withdraw a guilty plea. Gearhart v. United States, 106 U.S.App.D.C. 270, 272 F.2d 499 (1959); United States v. Young, 424 F.2d 1276 (3d Cir. 1970). The court nevertheless may hold an evidentiary hearing to enable it to weigh and to determine the plausibility and legitimacy of the defendant's reasons for the requested withdrawal. State v. Dicks, supra; United States v. Webster, supra; United States v. Barker, 168 U.S.App.D.C. 312, 514 F.2d 208 (1975), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682. And where, in the sound exercise of its discretion, the trial court has determined that no plausible and legitimate reason exists for allowing the motion, its determination will be sustained unless it is clearly shown that the trial court has abused its discretion. Id; United States v. Youpee, supra; Sherman v. United States, supra; Everett v. United States, 119 U.S.App.D.C. 60, 336 F.2d 979 (1964); High v. United States, supra.

The trial court in this case might have granted the defendant's motion to withdraw his guilty plea but it did not, and we are not prepared to find that the denial constituted a clear abuse of the court's discretion. The defendant in this case had the burden of establishing plausible and legitimate grounds for withdrawal. United States v. Webster, supra; Everett v. United States, supra; High v. United States, supra.

Two reasons were advanced by the defendant in support of his motion. The first was that he was not aware that theft in the first degree was a felony and not a misdemeanor. We find this reason to be without merit, as obviously did the trial court. The defendant was originally indicted for the offense of robbery in the first degree, which carries a maximum penalty of twenty years imprisonment and a $10,000.00 fine. As a result of plea bargaining, he was allowed to plead guilty to theft in the first degree, which carries a maximum penalty of five years imprisonment and a $5,000.00 fine. At arraignment and plea on the latter charge, he was fully and clearly advised by his attorney and by the court of the maximum penalties which may be imposed for the crime of theft in the first degree. He was not entitled to be informed by the court of all the possible collateral consequences of a guilty plea. Reponte v. State, 57 Haw. 354, 556 P.2d 577 (1976); Meaton v. United States, 328 F.2d 379 (5th Cir. 1964), cert. denied, 380 U.S. 916, 85 S.Ct. 902, 13 L.Ed.2d 801, reh. denied, 380 U.S. 959, 85 S.Ct. 1091, 13 L.Ed.2d 976. See also H.R.P.P. Rule 11 (effective January 1, 1977). The defendant was represented throughout by an attorney whose professional competency has not been placed in issue. He does not claim inadequate legal representation, and he concedes that the trial court did all that the law required of it to ensure that his guilty plea was voluntarily, knowingly, and intelligently made.

The second ground advanced by the defendant was that he had an eyewitness (one Clyde Wysocki) who was now willing to testify. This witness apparently was in the company of the defendant at the time of the transaction which provided the basis for the indictment against the defendant and was a possible accomplice in the commission of the alleged offense. In connection with this alleged new development, the defendant testified upon the hearing of his motion for withdrawal Q When you told Judge Heen that you had taken the money from the Marines and had kept the money to yourself, was that something that was suggested to you by anyone else or did you make that story up by yourself?

A Well, I just thought of it because I gave the money to the other person and the other person didn't come back to us so my witness would say that we did give the money to this other person, and this other person didn't come back, but since he wasn't willing to come to Court I just said that I kept the money.

Q Now, if you had known that Mr. Waisaki (Wysocki) was willing to testify for you in a Robbery First Degree trial, would you have pled guilty?

A No.

MRS. MILKS: I have no further questions, Your Honor.

THE COURT: You may step down.

Mrs. Milks, I suppose the only difference is that you have to believe your client. I don't. The Court is quite satisfied that at the time the defendant entered his plea of guilty he was aware of the consequences; he freely entered a...