State v. Kincaid, 031419 IDCCR, 45489

Docket Nº:45489
Opinion Judge:HUSKEY, Judge
Party Name:STATE OF IDAHO, Plaintiff-Respondent, v. RONNIE GENE KINCAID, JR., Defendant-Appellant.
Attorney:Eric D. Fredericksen, State Appellate Public Defender; Reed P. Anderson, Deputy Appellate Public Defender, Boise, for appellant. Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.
Judge Panel:Chief Judge GRATTON and Judge LORELLO CONCUR.
Case Date:March 14, 2019
Court:Court of Appeals of Idaho
 
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STATE OF IDAHO, Plaintiff-Respondent,

v.

RONNIE GENE KINCAID, JR., Defendant-Appellant.

No. 45489

Court of Appeals of Idaho

March 14, 2019

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Cassia County. Hon. John K. Butler, District Judge.

Order denying motion to withdraw guilty plea, affirmed; judgment of conviction, affirmed in part,

vacated in part, and case remanded.

Eric D. Fredericksen, State Appellate Public Defender; Reed P. Anderson, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

HUSKEY, Judge

Ronnie Gene Kincaid, Jr. appeals from the judgment of conviction entered upon his guilty plea to second degree murder. Kincaid argues the district court erred when it denied Kincaid's motion to withdraw his guilty plea and when it ordered Kincaid to pay two separate fines of $5, 000. The district court did not err in denying Kincaid's motion to withdraw his guilty plea. However, because Kincaid was convicted of only one offense, the district court erred when it imposed two separate $5, 000 fines. For the reasons set forth below, the judgment of conviction is affirmed in part, vacated in part, and the case is remanded to the district court for entry of an amended judgment of conviction consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Kincaid was charged by information with multiple felonies, which included Count I: murder in the first degree, Idaho Code §§ 18-4001, 18-4002, and 18-4003(a), (d); Count II: mayhem, I.C. § 18-5001; Counts III and IV: penetration by a foreign object, I.C. § 18-6608(1)(a); and Count V: concealment or destruction of evidence, I.C. § 18-2603. The State later amended the information to add a persistent violator sentencing enhancement, I.C. § 19-2514. Kincaid entered a not guilty plea, and the case was set for jury trial. Kincaid waived his right to a speedy trial, and the parties settled on a trial date.

At the first pretrial conference, the district court was informed of on-going settlement negotiations. At the second pretrial conference, the parties presented an Idaho Criminal Rule 11(f)(1)(A) and (C) plea agreement, 1 wherein the State agreed to amend the information to one count of murder in the second degree and dismiss the sentencing enhancement and the four remaining charges. The plea agreement explained: "The Defendant shall not file a motion to withdraw any guilty plea entered as part of this plea agreement." Additionally, the plea agreement stated: The Defendant waives his right to appeal for any issue or basis, including but not limited to, appealing the judgment of conviction and/or the sentence pronounced by the Court and/or the denial of any motion to suppress, motion to withdraw guilty plea, or Idaho Criminal Rule 35 motion.

In exchange for Kincaid's guilty plea, the State agreed to recommend a unified life sentence, with fifteen to twenty years determinate. Pursuant to the agreement, Kincaid entered an Alford2 plea to one count of murder in the second degree, I.C. §§ 18-4001, 18-4002, and 18-4003(g).

Two days before the scheduled sentencing hearing, Kincaid's attorney filed a motion to withdraw as the attorney of record. At the time originally set for sentencing, the court addressed the attorney's motion to withdraw, noting that although the court was prepared to accept Kincaid's Rule 11 plea agreement, the court had recently been informed by counsel of Kincaid's desire to withdraw his guilty plea. After hearing argument on the motion for appointed counsel to withdraw, the district court denied the motion and offered the following explanation: In view of Mr. Kincaid's desire that a motion be filed to withdraw his plea of guilty--and I will hear further argument, if counsel wish to do so, but my concerns are that if I grant, [defense counsel], your motion to withdraw at this time that whoever is ultimately retained or appointed would not have the familiarity with the case to necessarily effectively assist Mr. Kincaid in the filing of his motion to withdraw his plea, and certainly that does raise some concerns for me in terms of post-conviction relief.

Thereafter, Kincaid filed a motion to withdraw his guilty plea. At the hearing on Kincaid's motion, the following exchange occurred between Kincaid and defense counsel: Counsel: Were you concerned that I, as your counsel, would no longer represent you if you didn't follow through with the plea agreement that was reached?

Kincaid: Yes. Counsel: And why was that?

Kincaid: Because I didn't want to plead to anything I didn't do.

Counsel: But why were you concerned that I would no longer represent you?

Kincaid: Because you told me that if I took this to trial, you would quit.

Counsel: And--well, not if you took it to trial, but if you didn't follow through with the plea agreement; right?

Kincaid: Yes.

Counsel: And, in fact, after you indicated to the Court that you didn't want to continue with your plea and withdraw your plea, I filed a motion to withdraw as your counsel; right?

Kincaid: Yes.

The district court sought clarification on Kincaid's statements, and asked: Court: The inquiry that I have and I was confused by the questioning before we get to cross, Mr. Kincaid, did you testify that [defense counsel] told you that he would withdraw if you did not accept this plea before you entered the plea?

Kincaid: Yes.

Court: That's what he told you?

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