               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41796

STATE OF IDAHO,                                  )     2015 Unpublished Opinion No. 484
                                                 )
       Plaintiff-Respondent,                     )     Filed: May 11, 2015
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
JULIAN MARTIN VALENCIA,                          )     THIS IS AN UNPUBLISHED
                                                 )     OPINION AND SHALL NOT
       Defendant-Appellant.                      )     BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. George A. Southworth, District Judge.

       Order denying motion to withdraw guilty plea, vacated and case remanded.

       Sara B. Thomas, State Appellate Public Defender; Reed P. Anderson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Julian Martin Valencia appeals from the district court’s denial of his motion to withdraw
his guilty plea. We vacate the order and remand for further proceedings.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       The State charged Valencia with battery with intent to commit a serious felony, Idaho
Code § 18-911. In a separate case, Valencia was charged with three counts of felony no-contact
order (NCO) violations, I.C. § 18-920(3). Pursuant to a plea agreement, Valencia entered an
Alford 1 plea to the battery charge and in exchange, the State dismissed the remaining charges and
agreed to recommend a sentence of four years determinate with the indeterminate time to be left
open for argument.      The district court then ordered Valencia to undergo a presentence


1
       See North Carolina v. Alford, 400 U.S. 25 (1970).


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investigation (PSI) and a psychosexual evaluation (PSE), which were prepared and filed on
September 10, 2013, and September 27, 2013, respectively.
       On September 25, 2013, Valencia’s trial counsel filed a motion for leave to withdraw as
counsel of record, stating that “[Valencia] has requested counsel to file a motion to withdraw his
guilty plea on the premise of ineffective assistance of counsel. [Valencia] claims that counsel
has failed to properly advise him of potential consequences thus rendering his plea involuntary
and unknowing.” Prior to the hearing on the motion, Valencia sent an ex parte letter to the court
requesting a change of plea. In the letter, Valencia stated “I did speak with my attorney on
September 16th, 2013 to discuss all matters” and requested a change of plea on the basis of
“Inadequate Counsel.” Following a hearing, the district court granted counsel’s motion to
withdraw and appointed the public defender’s office to represent Valencia.
       Before his sentencing hearing, Valencia, through appointed counsel, filed a motion to
withdraw his guilty plea. In his motion, he asserted that he felt “his prior counsel misled him
which led him to enter a guilty plea” and he did not feel that he “committed the crime as
alleged.” He also argued that the State would not be prejudiced by the withdrawal of his plea as
the case could be reset for trial. At the hearing on the motion to withdraw his plea, Valencia’s
appointed counsel argued that Valencia’s former counsel made erroneous representations to him
regarding Idaho’s persistent violator statute. Specifically, he argued that Valencia’s former
counsel caused him to erroneously believe he could be subject to the persistent violator
enhancement if he did not accept the offered plea agreement. The district court denied the
motion. The district court imposed a unified ten-year sentence, with four years determinate.
Valencia timely appeals.
                                               II.
                                          ANALYSIS
       Whether to grant a motion to withdraw a guilty plea lies in the discretion of the district
court and such discretion should be liberally applied. State v. Freeman, 110 Idaho 117, 121, 714
P.2d 86, 90 (Ct. App. 1986). Appellate review of the denial of a motion to withdraw a plea is
limited to determining whether the district court exercised sound judicial discretion as
distinguished from arbitrary action. Id. Also of importance is whether the motion to withdraw a
plea is made before or after sentence is imposed. When moving for a withdrawal of guilty plea
prior to sentencing, the defendant bears the burden of proving a just reason for withdrawing the


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plea, whereas the district court may allow withdrawal of a guilty plea after sentencing only to
correct a manifest injustice. Idaho Criminal Rule 33(c); 2 State v. Mayer, 139 Idaho 643, 647, 84
P.3d 579, 583 (Ct. App. 2004). Even when the motion is presented before sentencing, if it
occurs after the defendant has learned the content of the PSI or has received other information
about the probable sentence, the district court may temper its liberality by weighing the
defendant’s apparent motive. Mayer, 139 Idaho at 647, 84 P.3d at 583. In order to be valid, a
guilty plea must be voluntary, and voluntariness requires that the defendant understand the nature
of the charges to which he or she is pleading guilty. Boykin v. Alabama, 395 U.S. 238, 242
(1969); Mayer, 139 Idaho at 647, 84 P.3d at 583.
       We note, first, that it is unclear what standard the district court applied to the motion to
withdraw. In its ruling, the district court identified the dates that the PSI and the PSE were filed
and stated that: “The motion to withdraw the guilty plea was only filed after a very negative
psychosexual evaluation was performed and a presentence investigation report that
recommended prison.” That statement clearly suggests that the court was implicitly tempering
its liberality by weighing Valencia’s apparent motive. Yet, as noted above, Valencia was raising
the desire to file a motion to withdraw at least before the PSE was filed. Valencia argues that,
because the PSE is to be attached to the PSI by virtue of Idaho Criminal Rule 32(b)(10), he could
not have seen the PSI prior to the first time the record indicates he expressed a wish to withdraw
his guilty plea. While we do not necessarily believe that conclusion follows from the facts of
this case, nonetheless, the district court did not make explicit findings in that regard or as to the
standard of liberality being applied.
       At the motion to withdraw hearing, Valencia claimed that he was misled regarding the
possibility of a sentencing enhancement being filed against him. He argued that part of the
reason he pled guilty was to avoid being subject to the persistent violator statute. In regard to the
question of whether a persistent violator issue was part of the plea agreement, the following
exchange occurred:



2
       Idaho Criminal Rule 33(c) states:
              Withdrawal of plea of guilty. A motion to withdraw a plea of guilty 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 defendant’s plea.

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       JUDGE:                  It appears, at least in looking at the minute entry, there was
                               never any threat by the State to file the persistent violator
                               because that was not part of the plea agreement.
       [PROSECUTOR]:           That’s correct. It was not part of the plea agreement.

However, it appears that the district court may have been operating under a mistake of fact in
ruling on the motion to withdraw. At the time of the plea, in his guilty plea advisory form, in
response to the question of whether any promises had been made to him which had influenced
his decision to plead guilty, Valencia wrote “plea agreement & no file persistent” and “dismiss
3 counts felony NCO.” Also, at Valencia’s change of plea hearing, when the district court asked
him if any other promises had been made to him in exchange for his plea, the following
interaction occurred:
       [VALENCIA]:             Just the fact that persistent violator won’t be filed.
       JUDGE:                  Okay. Is that part of the agreement?
       [PROSECUTOR]:           Yes, Judge.
       JUDGE:                  Okay. That’s on the record also.
We are unable to reconcile these apparently conflicting statements as to whether a persistent
violator issue was or was not part of the plea agreement. The circumstances presented by our
record are unclear. In its ruling on the motion, the district court did not address whether a
persistent violator waiver was part of the plea agreement 3 or whether counsel affirmatively
advised that Valencia could be subject to the enhancement. 4 Consequently, we are unable to




3
        On appeal, the parties debate whether Valencia could legally have been subject to a
persistent violator enhancement. As noted, this was not addressed by the district court and we
will not, in the first instance, address the issue in application of the particular facts of this case.
4
       The district court ruled as follows:
               The Court has considered this matter, does note that prior counsel
       withdrew on September 25th of this year. The presentence investigation report
       was filed with the Court on September 10, 2013. The psychosexual evaluation
       was filed September 30, 2013. Defendant’s motion to withdraw the guilty plea
       was not filed until after the public defender had the case again after that, but
       certainly the presentence investigation report and the psychosexual evaluation
       were available for review prior to those times. The motion to withdraw the guilty
       plea was only filed after a very negative psychosexual evaluation was performed
       and a presentence investigation report that recommended prison.
               At the time defendant entered his guilty plea, he was aware the State
       would be recommending four fixed followed by an undetermined amount of tail

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determine the import of the potential factual discrepancy, make no comment thereon, and
remand to the district court for further proceedings.
       Accordingly, we vacate the district court’s order denying Valencia’s motion to withdraw
his guilty plea and remand for further proceedings.
       Chief Judge MELANSON and Judge LANSING CONCUR.




       on that sentence. He reserved the right to argue for a lesser offense at the time he
       entered that plea.
               This Court does believe that there is prejudice to the State, specifically
       prejudice to the victim in this case thinking this matter had reached a resolution
       and the sentence was going forward.
               And if the Court were to allow withdrawal of the plea, given the length of
       time that this has been pending, the fact that the public defender previously
       represented the defendant with regard to these charges, the Court in its discretion
       is going to deny defendant’s motion to withdraw the guilty plea.

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