HSC Expands “Fair and Just Reasons” to Withdraw a Perfectly Valid No-Contest Plea

 State v. Pedro (HSC June 4, 2021)

Background. Theo Pedro was charged with four counts of sexual assault in the first degree, attempted sexual assault in in the first degree, sexual assault in the third degree, and kidnapping. Pedro pleaded not guilty and the Family Court of the 2d Circuit, with the Hon. Judge Richard T. Bissen, Jr. presiding, set trial. At a hearing on the defense’s motion to compel discovery, counsel announced that the parties reached a plea agreement. Pedro would plead no contest to four amended counts of sexual assault in the second degree and the other counts would be dismissed. The prosecution could seek concurrent terms of imprisonment capped at ten years. Pedro could was free to argue for probation.

 

Pedro’s decision to agree to the plea offer was unexpected and came as a surprise to defense counsel, the prosecutor, and the court. Using the standard change of plea form and with the assistance of a Marshallese interpreter, defense counsel represented that he had gone over the form with Pedro. The family court questioned Pedro about the plea deal and his understanding of the waiver of his right to go to trial. Pedro addressed the Court in both English and Marshallese. Before asking Pedro about his new plea, the family court summarized paragraph 11 of the form:

 

I’m signing this no contest plea form after I have gone over all of it with my lawyer, and while I will not be permitted to withdraw my plea, I am signing this form in the presence of my lawyer. I have no complaints about my lawyer. I am satisfied with what he has done for me.

 

Pedro answered in the affirmative and pleaded no contest. The family court found that Pedro knowingly, voluntarily, and intelligently waived his rights to trial and accepted the no-contest plea. The family court found him guilty of the four amended counts and set a sentencing hearing.

 

After the hearing, but before sentencing, counsel filed a notice to disclose discovery materials pursuant to HRPP Rule 16. The parties stipulated to allow disclosure with sensitive personal information redacted. The family court approved of the stipulation. Eleven days after the notice was filed, counsel moved to withdraw and seek substitute counsel.

 

In the motion, counsel stated that Pedro “does not wish to have the Office of the Public Defender represent him in this case and wishes to have a new attorney represent him.” Counsel cited Hawai'i Rules of Professional Conduct (HRPC) Rule 1.16(a)(3). A week after the motion was filed, the presentence report was filed under seal.

 

At the hearing on the motion, counsel stated that Pedro wanted to withdraw his no-contest plea and given what was discussed, counsel asked to withdraw and have new counsel appointed. Pedro said that he wanted to start all over again with a new lawyer to explain everything to him and help him. He said he did not understand. The motion was granted.

 

Pedro, now with new counsel, moved to withdraw the no-contest plea. Counsel declared that Pedro had maintained his innocence and wanted trial. He said he did not fully understand his options at trial and that prior counsel “did not fully explain his options in regard to a trial” and pressured him into changing his plea. The family court denied the motion.

 

At the sentencing hearing, counsel alerted the court about possibly exculpatory evidence received yesterday that the complainant might have recanted. Pedro called his mother Joanne to testify. His mother testified that her cousin told her that she heard secondhand, that the complainant said that Pedro “didn’t have anything to do with it, with the accusation—allegation” and that she made up the story. Pedro moved to continue the hearing. The family court denied the motion and commented that if the testimony was presented at the hearing on the motion to withdraw the no-contest plea, it “would not have made any difference.” Pedro maintained his innocence at sentencing and blamed his first lawyer more. The family court sentenced him to ten years imprisonment. Pedro appealed. The ICA affirmed.

 

How to Withdraw the Plea . . . Defendants may withdraw the plea within ten days after sentencing in order to “correct manifest injustice.” Hawai'i Rules of Penal Procedure (HRPP) Rule 32(d). After ten days, the defendant must petition pursuant to HRPP Rule 40. Before sentencing, however, courts take a “liberal approach” and allow a plea withdrawal “if the defendant has presented a fair and just reason for [the] request and the State has not relied upon the guilty plea to its substantial prejudice.” State v. Jim, 58 Haw. 574, 576, 574 P.2d 521, 522-523 (1978). The defendant bears the burden of “establishing plausible and legitimate grounds[.]” State v. Costa, 64 Haw. 564, 656, 644 P.2d 1329, 1331 (1982).

 

Two kinds of “Fair and Just Reasons” . . . The HSC noted that there were two fundamental “fair and just reasons” to permit the defendant to withdraw the plea: the defendant did not knowingly, intelligently or voluntarily waived his or her rights; or “changed circumstances or new information justify withdrawal of the plea.” State v. Gomes, 79 Hawai'i 32, 37, 897 P.2d 959, 964 (1995). A presentence request for a plea withdrawal based on new information or evidence is based on four factors: (1) the defendant has never expressly admitted guilt; (2) there is new information or changed circumstances that “if believed by a reasonable juror, would exculpate the defendant;” (3) there has been no undue delay in moving to withdraw the plea; and (4) the prosecution has not shown it relied on the plea to its substantial prejudice. Id. at 39, 897 P.2d at 966.

 

The HSC noted that the family court correctly articulated the standard in Jim and correctly found that Pedro’s plea was knowing and voluntary. Nor did it err in finding that there was no “new evidence” justifying the withdrawal under the Gomes test. Nonetheless, the HSC held that the motion to withdraw the plea should have been granted.

 

The HSC explained that relinquishing the right to trial is significant:

 

A criminal trial fully activates a defendant’s rights to confront accusers, testify, or not testify, present a complete defense, and have the prosecution prove each element of the charge or included offenses beyond a reasonable doubt. With serious crimes, the right to a jury trial and unanimity attach. By pleading guilty or no contest, defendants renounce these core constitutional rights, forgo a public trial, and subject themselves to the government’s punitive power. Given the significance of the constitutional rights waived by a guilty or no contest plea, the flexible and comparatively liberal approach we adopted in Jim favors allowing pre-sentence defendants to reclaim their constitutional rights and go to trial.

 

A New Test for Presentence Plea Withdrawals that are not based on a Defective Waiver of Rights or New Evidence. The HSC clarified the standard in Gomes and adopted a five-part test to determine when “changed circumstances” arise to a “fair and just” reason to withdraw the plea:

 

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.

 

The HSC applied the five-factor test to Pedro’s case because the record was fully developed and did not need to remand to the family court.

 

Pedro’s Case met all five factors. The HSC first noted that Pedro asserted and maintained his innocence. He pleaded no contest and did not confess to the offenses in the record. This weights toward plea withdrawal. Second, the HSC examined the timing of the request to withdraw the plea. The HSC noted that the request came before the filing of the presentence investigation report. The first defense counsel withdrew prior to the PSI report and at the hearing on the motion to withdraw, noted that Pedro wanted to withdraw his plea. According to the HSC, this meant there was no undue delay.

 

As for the third factor—the circumstances underlying the plea—the HSC identified four “features” weighing toward withdrawal. First, the no contest plea was unexpected and according to the HSC “spur of the moment.” No one anticipated that he would change his plea. The HSC noted Justice Bert Kobayashi’s observation that a “swift change of heart is itself a strong indication that the plea was entered in haste and confusion” and “rarely prejudice[s] the Government’s legitimate interests.” State v. Dicks, 57 Haw. 46, 59, 549 P.2d 727, 736 (1976) (Kobayashi, J., dissenting). Second, the pleas were entered well ahead of trial and “the judicial resources consumed by allowing Pedro to withdraw his pleas, reclaim his constitutional rights, and go to trial were near nil.” Third, Pedro did not have his discovery at the time he changed his plea. Fourth, by withdrawing his plea, Pedro would be facing an even harsher sentence if he lost at trial. According to the  HSC, “the fact that Pedro sought to unravel his plea agreement notwithstanding the severe potential consequences of doing so lends plausibility and legitimacy to his request for plea withdrawal and supports allowing it.”

 

Under the fourth factor, the HSC noted that Pedro had a limited education and English was not his first language. Given his background, this factor pointed toward withdrawal. Finally, the HSC held that the withdrawal of the plea would only cause a minor degree of prejudice to the prosecution. The HSC rejected the prosecution’s assertion that it would have a hard time finding its witnesses and that the witnesses might be uncooperative. That, according to the HSC, was an unexceptional feature of a criminal trial. And so the HSC held that the family court abused its discretion in denying the motion to withdraw the plea.

 

Justice Wilson’s Concurrence. Justice Wilson joined the majority, but wrote separately to note that the family court erred in denying the request to continue sentencing to investigate the possible new evidence that arose from the recanting complainant.

 

Chief Justice Recktenwald’s Dissent. The CJ agreed that the Gomes test needed to be clarified and agreed with the new five-factor analysis. The disagreement arose in its application. The CJ believed that it is not “unexceptional” in criminal cases for prosecution witnesses to become uncooperative. According to the CJ, when witnesses become reluctant or uncooperative after the changed plea, that is a prejudice toward the prosecution that weighs against the withdrawal of the plea. Griffin v. Commonwealth, 780 S.E.2d 909 (Va. Ct. App. 2016); Commonwealth v. Carr, 543 A.2d 1232 (Pa. Super. Ct. 1988). The CJ would have vacated the lower court’s denial of the motion on the grounds that it did not formulate the law correctly. But that was it. It would have left it for the trial court to determine if the five factors were met. Justice Nakayama joined.