Getting out of a plea deal the (not so) easy way?

 State v. Walter (HSC June 5, 2025). Weiser Walter was indicted for attempted murder in the first degree, murder in the second degree, and attempted 2d degree murder after he was arrested for stabbing his adoptive sister and four-year-old nephew, who later died of his injuries. He was represented by deputy public defender, Crystal Glendon. He claimed that he had been guided by demons or God and wanted to asserted the insanity defense in HRS Chapter 704. The circuit court granted a motion to have three evaluators determine his mental state at the time of the offense. Two out of the three concluded that Walter lacked penal responsibility. The third’s opinion was non-conclusive.

 

The prosecution moved to bring in two additional experts to assess Walter’s penal responsibility. His attorney simply made a “record objection”—an objection with no legal basis or argument. The motion was granted. These additional experts concluded that Walter was penally responsible.

 

After several continuances and despite multiple efforts to get a sixth examiner, the case was reassigned within the Office of the Public Defender because Glendon left the office. Walter’s new trial counsel was deputy public defender, Earl Edward Aquino. Walter asked the public defender’s office to withdraw. At the hearing, a substitute deputy public defender, Doris Lum, stood in for Aquino. The circuit court—with the Honorable Judge Catherine Remigio presiding—asked Lum if there was anything to add to the motion. Lum said that she spoke to Walter and said that Aquino took over from Glendon and Walter “cannot work with Mr. Aquino. He wants to have another attorney appointed to him. So we would leave it at that.” The circuit court denied the motion without posing questions to Walter or counsel. The circuit court simply stated that Walter “does not have a right to an attorney he likes.”

 

That same day, the prosecution offered Walter a plea deal: plead guilty to murder in the second degree and attempted murder in the second degree and the prosecution would drop the attempted first degree murder charge. The sentence would be life imprisonment with the possibility of parole. And the offer also required Walter to join the prosecution in recommending to the parole board a 35-year minimum term. Walter took the deal and changed his plea.

 

At the change-of-plea hearing, the circuit court questioned Walter about his competency and his English language comprehension. The circuit court asked Walter why he believed he was guilty. “Because I know that I did it,” he said. He acknowledged that he discussed his options with Aquino and was satisfied with the help given to him. The circuit court found that his decision to change his plea was voluntarily and intelligently made, and set a sentencing hearing.

 

Three days after the change-of-plea hearing, Walter retained new counsel. This was during the COVID-19 pandemic. Walter’s new counsel indicated that he planned on filing a motion to withdraw his plea and get a medical examiner to assess if Walter knowingly entered his plea. The motion was filed and for the next six months, the circuit court reviewed memoranda from the parties and held several evidentiary hearings where Glendon, Aquino, and an expert on criminal defense testified. The circuit court denied the motion.

 

During one of the hearings on the motion to withdraw the plea, while Glendon was testifying for the prosecution, Judge Remigio disclosed that six years before the hearing, she asked Glendon to organize a baby shower for a mutual friend. Event planning was a hobby for Glendon at the time and Remigio gave her $100 to cover the costs. They also attended two birthday parties in 2012 and 2017.

 

Walter moved to disqualify Judge Remigio based on her prior relationship with Glendon. The motion was denied.

 

The circuit court sentenced Walter to life imprisonment with a mandatory minimum of 15 years. Then the parties recommended a 35-year minimum term. Walter appealed and the ICA affirmed.

 

How to get out of a plea deal before sentencing. HRPP Rule 32(d) allows defendants to withdraw their guilty or no-contest pleas. And while it is not an absolute right, “a more liberal approach is taken” to their motions to withdraw when they are made before sentencing. State v. Jim, 58 Haw. 574, 575-76, 574 P.2d 521, 522-23 (1978).

 

A motion to withdraw the plea requires the court to examine the totality of the circumstances “to determine whether there was any fair and just reason justifying [the defendant’s] plea withdrawal.” State v. Pedro, 149 Hawaii 256, 274, 488 P.3d 1235, 1253 (2021). In determining a “fair and just reason,” the court looks to five factors:

 

Courts evaluating an HRPP Rule 32(d) motion to withdraw a knowing and voluntary plea before sentencing should consider: (1) whether the defendant has asserted and maintained innocence; (2) the timing of the request for the plea withdrawal and the reasons for any delay; (3) the circumstances underlying the plea; (4) the defendant’s nature and background; and (5) the potential prejudice to the prosecution caused by reliance on the plea.

 

Id. at 275, 488 P.3d at 1254.

 

The HSC here disagreed with the circuit court’s application of the Pedro factors and held that Walter presented “fair and just reasons” to withdraw the plea.

 

First, he asserted and maintained innocence. True, he acknowledged that he “did it” at the change-of-plea hearing, but he maintained that he was not penally responsible—a defense to the charges. He consistently maintained that he had been guided by demons trying to save the world. Under the Hawaii Constitution, defendants have a right to assert the insanity defense and before abandoning that defense, trial courts are obligated to conduct an on-the-record colloquy to ensure that waiving the defense was done intelligently, voluntarily, and knowingly. State v. Glenn, 148 Hawaii 112, 129, 468 P.3d 126, 143 (2020). That did not happen at Walter’s change-of-plea colloquy.

 

The second factor also weighed toward withdrawal. When there is no undue delay and the defendant has a “swift change of heart” in withdrawing the plea, it is considered “a strong indication that the plea was entered in haste[.]” State v. Pedro, 149 Hawaii at 276, 488 P.3d at 1255. The HSC rejected the prosecution’s claim that the months of delay weighed against Walter. He had to contend with the COVID-19 pandemic slowing things down. Walter changed his plea on February 3, 2020. Then he got new counsel three days later. On new counsel’s advice, he refused to participate in the presentence investigation. That combined with the pandemic tipped the second factor to Walter.

 

For the third factor—the circumstances underlying the plea—the HSC focused on Aquino’s motion to withdraw as counsel. When an indigent defendant wants another appointed counsel, the court is supposed to conduct a “penetrating and comprehensive examination” that “might ease the defendant’s dissatisfaction, distrust, or concern” and determine if there really is good cause to warrant substitution of counsel. State v. Harter, 134 Hawaii 308, 323, 340 P.3d 440, 455 (2014). Good causes tend to be “a conflict of interest on the part of the defense counsel, a complete breakdown in communication between the attorney and client, or an irreconcilable difference between the attorney and client.” Id. at 323-34, 340 P.3d at 455-56.

 

Aquino’s motion stated that Walter wanted a new attorney and asked for the motion to be filed. Then a substitute deputy public defender went to the hearing and the circuit court did not question Walter about how he felt. There was no “penetrating and comprehensive examination” required by Harter. This left Walter—as he later testified in support of his motion to withdraw the plea—feeling like his only options were to go to trial and lose or take a deal for 35 years. This third factor weighs in Walter’s favor.

 

The fourth factor—Walter’s background—was the only one weighing against plea withdrawal. The record showed Walter’s proficiency in English and his composure at the change-of-plea hearing.

 

The prejudice factor went to Walter. In assessing this factor, the trial court should “weigh any prejudice to the prosecution caused by reliance on the defendant’s plea.” State v. Sanney, 141 Hawaii 14, 22, 404 P.3d 280, 288 (2017). Even when the prosecution is substantially prejudiced, other factors can outweigh the prejudice. Pedro, 149 Hawaii at 281, 488 P.3d at 1260. The HSC rejected the prosecution’s contention that since the change-of-plea, eight officers that investigated the case have retired and a medical examiner has moved away. The argument, according to the HSC, was unavailing because it was speculative. It noted that the “mere fact that the passage of time might make it even more difficult for the prosecution to locate a witness does not mean a plea withdrawal would substantially prejudice the State.”

 

The HSC focused on the time between the guilty plea and the filing of the motion to withdraw that plea—not the incident and the plea withdrawal. In the refocused time period, the prosecution did not show any prejudice. Based on this analysis, the HSC vacated the judgment and remanded the case.

 

No errors in refusing to disqualify Judge Remigio. A judge is disqualified when there is a “personal bias or prejudice either against the party or in favor of any opposite party to the suit[.]” HRS § 601-7(b). Judges may also be disqualified when the circumstances reveal “an appearance of impropriety and . . . reasonably cast suspicion on [the judge’s ] impartiality.” State v. Brown, 70 Haw. 459, 467 n. 3, 776 P.2d 1182, 1188 n. 3 (1989). The test for disqualification due to the appearance of impropriety is objective “based not on the beliefs of the petitioner or the judge, but on the assessment of a reasonable impartial onlooker apprised of all the facts.” State v. Ross, 89 Hawaii 371, 380, 974 P.2d 11, 20 (1998).

 

The HSC, without much explanation, disagreed with Walter’s claim that planning a baby shower for a mutual friend six years before the proceedings and the relationship between Glendon and Judge Remigio gave rise to the appearance of impropriety. According to the HSC, the ICA did not err in upholding that part of the ruling below.