               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 40082

STATE OF IDAHO,                                  )     2015 Unpublished Opinion No. 352
                                                 )
       Plaintiff-Respondent,                     )     Filed: February 13, 2015
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
MELISA RENEE BATES,                              )     THIS IS AN UNPUBLISHED
                                                 )     OPINION AND SHALL NOT
       Defendant-Appellant.                      )     BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Benewah County. Hon. Fred M. Gibler, District Judge.

       Order denying motion to withdraw guilty plea, affirmed; order denying I.C.R. 35
       motion, affirmed; judgment of conviction and sentence of life with thirty years
       determinate for second degree murder, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Melisa Renee Bates pled guilty to second degree murder, Idaho Code §§ 18-4001 and 18-
4003(g). After she was sentenced, she filed a motion to withdraw her guilty plea and an Idaho
Criminal Rule 35 motion, seeking leniency regarding her sentence. Her motions were denied
and Bates appealed. She argues that the district court erred by denying her motion to withdraw
her guilty plea and failed to inquire about her request for substitute counsel which was contained
within her motion. She also argues that the district court abused its discretion by imposing an
excessive sentence and denying her motion for leniency.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Police responded to a call reporting a missing person, Robert Marek. When they arrived
at Marek’s home in Saint Maries, they noticed a fire in a fire pit in the backyard and what


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appeared to be human body parts located in and around the fire. An autopsy later confirmed that
there were human remains around the fire, which were those of Marek. Upon being interrogated
by the police, Bates, Marek’s niece who had recently been staying at his home, admitted that she
had killed Marek. Bates was charged with first degree murder.
       The district court ordered mediation, which resulted in a plea agreement whereby Bates
pled guilty to second degree murder by way of an Alford 1 plea. Thereafter, the district judge
imposed a unified life sentence with thirty years determinate. Bates timely appealed from the
judgment of conviction and sentence, arguing that her sentence was excessive.            The State
Appellate Public Defender (SAPD) was appointed to represent Bates on appeal, but her
previously-appointed trial counsel continued to represent Bates in the district court.
       Bates filed an I.C.R. 35 motion requesting leniency, which was denied by the district
court. While her appeal was pending, Bates sent the district court a handwritten document
entitled “Motion to withdraw guilty plea pursuant to idaho criminal rule 33c.” Within the
document, contained in a section labeled “Affidavit” but unsworn, Bates wrote “Motion of new
counsel.” Approximately six months later, Bates’ trial counsel filed a motion to withdraw the
guilty plea, which was denied by the district court after a hearing.
       Bates contends that the court erred by denying her motion to withdraw her guilty plea.
Bates further argues that the statement “Motion of new counsel” within her handwritten
document to the court was a request for substitute counsel and that the district court erred when it
failed to inquire into this request. Bates also argues that the district court erred by denying her
Rule 35 motion for leniency.
                                                 II.
                                           ANALYSIS
A.     Motion to Withdraw Guilty Plea
       Bates argues that the district court abused its discretion when it denied her motion to
withdraw her guilty plea. Idaho Criminal Rule 33(c) states: “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



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



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and permit the defendant to withdraw defendant’s plea.” The rule distinguishes between pleas
made prior to and after sentencing, exacting a less rigorous measure of proof for presentence
motions. State v. Dopp, 124 Idaho 481, 485, 861 P.2d 51, 55 (1993). To withdraw a guilty plea
prior to sentencing, the defendant must show a just reason for withdrawing the plea. Id. If he
does so, then the State may avoid the granting of the motion by showing that prejudice would
result if the plea were withdrawn. Id. A motion to withdraw a guilty plea brought after
sentencing will be granted only to correct manifest injustice. State v. Flowers, 150 Idaho 568,
571, 249 P.3d 367, 370 (2011); State v. Heredia, 144 Idaho 95, 97, 156 P.3d 1193, 1195 (2007).
The stricter standard after sentencing is justified to ensure that the accused is not encouraged to
plead guilty to test the weight of potential punishment and withdraw the plea if the sentence were
unexpectedly severe. State v. Freeman, 110 Idaho 117, 121, 714 P.2d 86, 90 (Ct. App. 1986).
Accordingly, in cases involving a motion to withdraw a plea after sentencing, appellate review is
limited to reviewing the record and determining whether the trial court abused its sound
discretion in determining that no manifest injustice would occur if the defendant was prohibited
from withdrawing his or her plea. State v. Lavy, 121 Idaho 842, 844, 828 P.2d 871, 873 (1992).
       If a plea was not taken in compliance with constitutional due process standards, which
requires that a guilty plea be made voluntarily, knowingly, and intelligently, then “manifest
injustice” or the lower standard of “just reason” will be established as a matter of law. Heredia,
144 Idaho at 97, 156 P.3d at 1195; State v. Stone, 147 Idaho 330, 333, 208 P.3d 734, 737 (Ct.
App. 2009); State v. Shook, 144 Idaho 858, 859, 172 P.3d 1133, 1334 (Ct. App. 2007); State v.
Huffman, 137 Idaho 886, 887, 55 P.3d 879, 880 (Ct. App. 2002). A prima facie showing of
compliance with due process requirements is made when the minimum requirements of Idaho
Criminal Rule 11 have been met. 2 Ray v. State, 133 Idaho 96, 99, 982 P.2d 931, 934 (1999);
Shook, 144 Idaho at 859, 172 P.3d at 1134. That rule provides that when the trial court accepts a
guilty plea, “the record of the entire proceedings, including reasonable inferences drawn
therefrom, must show: . . . The defendant was informed of the consequences of the plea,



2
       The procedures outlined in I.C.R. 11(c) are intended to protect the constitutional
requirement that guilty pleas be entered voluntarily, knowingly, and intelligently, but the
procedures of Rule 11(c) themselves are not constitutionally mandated. State v. Weber, 140
Idaho 89, 95, 90 P.3d 314, 320 (2004); accord McCarthy v. United States, 394 U.S. 459, 465
(1969). See also State v. Huffman, 137 Idaho 886, 887-88, 55 P.3d 879, 880-81 (Ct. App. 2002).

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including minimum and maximum punishments, and other direct consequences which may
apply.” I.C.R. 11(c)(2).
       However, not all Rule 11 violations invalidate a guilty plea. State v. Thomas, 154 Idaho
305, 308, 297 P.3d 268, 271 (Ct. App. 2013). The Idaho Criminal Rules provide, “Any error,
defect, irregularity or variance which does not affect substantial rights shall be disregarded.”
I.C.R. 52. In Thomas, we held that the court’s misstatement of the maximum sentence in a plea
colloquy was not manifest injustice where the court in fact imposed a sentence within the range
described during the colloquy. Thomas, 154 Idaho at 308, 297 P.3d at 271. Such an error is
harmless “unless the defendant can demonstrate, for example, that the misinformation at the
Rule 11 hearing led the defendant to expect a lesser penalty than he actually received.” Id.
Thomas did not allege that he would not have pled guilty had he been correctly informed about
the maximum sentence he faced, nor did he present any evidence or argument as to how he was
prejudiced when he received no greater sentence than that of which he was forewarned. Id.
Therefore, the error was harmless. Id.
       Here, Bates was informed that she faced a maximum penalty of life in prison but she was
not informed on the record of the mandatory minimum sentence of ten years. However, Bates
has failed to show how this omission resulted in manifest injustice. Similar to Thomas, Bates has
not demonstrated, or even claimed, that she would not have pled guilty had she been informed of
the mandatory minimum that she faced, nor has she presented any argument as to how she was
prejudiced when she has received a sentence consistent with that of which she was forewarned.
Because Bates has failed to demonstrate how the Rule 11 violation led her to expect a lesser
penalty than she actually received, the error is harmless.
       On appeal, Bates also asserts that her guilty plea was the product of coercion and fraud
and that the State withheld exculpatory evidence. In a handwritten document, which Bates
incorrectly classifies as an affidavit, attached to her motion to withdraw her guilty plea, she
wrote the following:
       I was pursistantly [sic] forced in to [sic] signing I was tricked by only reading last
       page last signing after just haven [sic] read a continue 2 second x second day of
       meeting, for a more time to come up with money for trial




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       Not properly investigated knowledge with held [sic] knowledge of others
       confession and explanasion [sic] the cover up

       Motion of new counsel
Bates’ handwritten document was not a proper affidavit brought before the district court, and
trial counsel offered no evidence or argument as to what Bates meant by her assertions. She
acknowledges that the statements are “somewhat unclear.” There is no indication in the record
as to who “tricked” her or failed to “properly investigate.” To the extent that her assertions relate
to the plea agreement, her present attempt to characterize them to mean that her plea was the
product of coercion and fraud is unavailing.
       The record amply demonstrates that Bates was aware of the contents of the plea
agreement. Prior to entry of her plea, and with the aid of a local judge, Bates and her attorney
engaged in mediation with the prosecution, which ultimately resulted in the plea agreement.
Further, before accepting Bates’ plea, the district court recited the contents of the plea agreement
to Bates and ensured that Bates was aware of the consequences of her plea. Bates has failed to
demonstrate any manifest injustice. The district court did not abuse its discretion in denying
Bates’ motion to withdraw her guilty plea.
B.     Motion for New Counsel
       Bates contends that she requested appointment of substitute counsel as a subcomponent
of her motion to withdraw her guilty plea and that the district court erred when it failed to afford
her the opportunity to explain the reasons for her request. The parties preliminarily dispute the
nature of Bates’ right to the effective assistance of counsel. We have already addressed this
argument in our recent case, State v. Bias, __ Idaho __, __ P.3d __ (Ct. App. 2014), where we
held that a person raising post-judgment claims is entitled to the assistance of counsel.
Therefore, Bates was statutorily entitled to counsel pursuant to I.C. § 19-852 unless her motions
were frivolous. 3 Bias, ___ Idaho at ___, ___ P.3d at ___.



3
       The relevant portions of Idaho Code § 19-852 state:

       (1) An indigent person who is . . . being detained under a conviction of, a serious
       crime, is entitled:
               (a) To be represented by an attorney to the same extent as a person having
               his own counsel is so entitled; and
               ....

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       However, the right to court-appointed counsel does not necessarily include the right to an
attorney of one’s choice. State v. Clayton, 100 Idaho 896, 897, 606 P.2d 1000, 1001 (1980).
Nonetheless, where the defendant requests substitute counsel and “after having been made aware
by the court of the problems involved,” the trial court has an obligation “to afford [the] defendant
a full and fair opportunity to present the facts and reasons in support of his motion . . . .” Id. at
898, 606 P.2d at 1002. While the duty to inquire is not a high burden, as we noted in Bias, its
exact scope is fact-dependent. Bias, __ Idaho at __, __ P.3d at __.
       In a motion for substitute counsel, a defendant’s general averments as to a conflict with
his counsel warrant further investigation by the court to develop a factual basis to adjudicate the
motion. State v. Lippert, 145 Idaho 586, 594, 181 P.3d 512, 522 (Ct. App. 2007) (the defendant
asserted that counsel failed to adequately consult with him); Bias, __ Idaho at __, __ P.3d __ (the
defendant asserted that poor advice by his attorney caused the attorney/client relationship to
break down). But, the duty to inquire “is not to be confused with when the trial court is aware of
a vague, unspecified possibility of a conflict.” Hall v. State, 155 Idaho 610, 619, 315 P.3d 798,
807 (2013). In Hall, the SAPD sent an ex parte notice to the district court of a “possible conflict
of interest regarding the SAPD representing Hall in his post-conviction proceedings.” The Idaho
Supreme Court found that the ex parte notice “only raised a ‘vague, unspecified possibility of
conflict,’” which was insufficient to trigger the district court’s duty to inquire. Id.
       Here, Bates has made no averments that a problem existed between her and her trial
counsel. Bates attempted to file a pro se motion to withdraw her guilty plea in the handwritten
letter detailed above. 4 At the bottom of her letter, Bates wrote “Motion of new counsel.” The




       (2) An indigent person who is entitled to be represented by an attorney under
       subsection (1) of this section is entitled:
              ....
              (c) To be represented in any other post-conviction or post-commitment
              proceeding that the attorney or the indigent person considers appropriate,
              unless the court in which the proceeding is brought determines that it is
              not a proceeding that a reasonable person with adequate means would be
              willing to bring at his own expense and is therefore a frivolous
              proceeding.
4
       Because Bates was represented by counsel at the time, her pro se “motion” was
inappropriate. As such, the record reflects that the district court did not act on her motion until a

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parties agree that the factual statements within her letter are, at best, somewhat unclear. Yet,
Bates now argues that when the phrase “Motion of new counsel” is read in conjunction with the
preceding paragraphs of her motion to withdraw her guilty plea, it indicates that she wanted a
substitution of trial counsel because she was tricked into agreeing to plead guilty and that there
was a cover up of another person who confessed to the killing. However, Bates’ statements at
the plea colloquy belie her argument that her trial counsel forced or tricked her into signing any
document relevant to her guilty plea or that she was blaming her counsel, as opposed to the State,
for not conducting an adequate investigation.
        During the plea colloquy, Bates told the district court that she received no promises for
her plea except for those stated in the plea agreement and that she understood the agreement.
She asserted that she believed the State’s investigation of the crime had been inadequate, but that
she wished to enter the guilty plea nonetheless. Furthermore, she expressly stated that she was
satisfied by her counsel’s performance in the case when asked by the district court.
        While a general averment of dissatisfaction with counsel warrants further inquiry, an
unspecified indication that someone may want substitute counsel does not trigger the court’s
duty to inquire. Unlike the general averments of a conflict in Lippert and Bias, Bates’ statement
in her ex parte letter is more akin to the vague statement in Hall, providing little to no
information addressing a potential problem with trial counsel. Bates’ buried statement, “Motion
of new counsel,” within her otherwise disjointed letter characterized as a motion to withdraw her
guilty plea cannot be read as a general averment of a problem with counsel. As such, it did not
trigger the district court’s duty to inquire.
C.      Bates’ Sentence
        An appellate review of a sentence is based on an abuse of discretion standard. State v.
Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal,
the appellant has the burden to show that it is unreasonable, and thus a clear abuse of discretion.
State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such
an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice,
103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it




proper motion to withdraw her guilty plea was brought through her trial counsel approximately
six months later.

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appears at the time of sentencing that confinement is necessary “to accomplish the primary
objective of protecting society and to achieve any or all of the related goals of deterrence,
rehabilitation or retribution applicable to a given case.” State v. Toohill, 103 Idaho 565, 568,
650 P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court
imposed an excessively harsh sentence, we conduct an independent review of the record, having
regard for the nature of the offense, the character of the offender, and the protection of the public
interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). When
reviewing the length of a sentence, we consider the defendant’s entire sentence. State v. Oliver,
144 Idaho 722, 726, 170 P.3d 387, 391 (2007).
       Bates argues the district court abused its discretion in sentencing her to life with thirty
years determinate because of her mental health issues. When imposing Bates’ sentence, the
district court specifically acknowledged the governing goals of sentencing: protection of society,
rehabilitation, deterrence, and punishment. The district court emphasized that “where we have a
homicide involved, protection of the public becomes by far the most important factor,” and that
“in this case rehabilitation is obviously a very important factor given the mental health issues.”
The court did not ignore Bates’ mental health issues in fashioning an appropriate sentence, but
went to great lengths to discuss the need for rehabilitation given her mental illness.
       In addition to considering Bates’ mental health issues, the court considered the
seriousness of the crime, which it characterized as “a particularly gruesome murder.” Bates pled
guilty to second degree murder of her uncle whom she was living with at the time. Bates
obtained a gun from beside the victim’s nightstand and shot him while he was outside, causing
him to fall to the ground where she then beat him with a metal rod. Bates then built a fire pit
around the victim’s body, placed several vehicle tires atop of his body, and lit them on fire,
leaving the victim to burn. After the fire burned down, she decapitated the victim with an axe.
She then threw the gun into the river, gathered her belongings, and fled to a nearby county where
she was apprehended by law enforcement while waiting to catch a ferry.
       The court found it particularly troubling that although Bates had received mental health
treatment in the past, “the professionals thought the treatment was successful. Yet after that
treatment, after her release, we have the horrible homicide that we’re sentencing her for here
today.” Accordingly, the court found that protection of the community required that Bates be in
a secure setting and that progress on her mental health issues, such that she would no longer


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represent a significant threat, would come only by prolonged and intense treatment, both of
which militated in favor of a longer sentence. The district court carefully reviewed the facts of
the case, considered the mitigating information presented by Bates, and concluded the sentence
was necessary to achieve the goals of sentencing. Having reviewed the record, this Court cannot
say the district court abused its discretion.
D.      Rule 35
        A motion for reduction of sentence under I.C.R. 35 is essentially a plea for leniency,
addressed to the sound discretion of the court. State v. Knighton, 143 Idaho 318, 319, 144 P.3d
23, 24 (2006); State v. Gill, 150 Idaho 183, 186, 244 P.3d 1269, 1272 (Ct. App. 2010). In
presenting a Rule 35 motion, the defendant must show that the sentence is excessive in light of
new or additional information subsequently provided to the district court in support of the
motion. State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007). In conducting our
review of the grant or denial of a Rule 35 motion, we consider the entire record and apply the
same criteria used for determining the reasonableness of the original sentence. State v. Forde,
113 Idaho 21, 22, 740 P.2d 63, 64 (Ct. App. 1987); State v. Lopez, 106 Idaho 447, 449-51, 680
P.2d 869, 871-73 (Ct. App. 1984).
        Bates asserts she provided new information to the court which demonstrated that she was
making rehabilitative progress. 5 Assuming the information constituted new evidence, having
reviewed the record, we cannot say that the district court abused its discretion in denying Bates’
motion for leniency.
                                                III.
                                           CONCLUSION
        The district court did not abuse its discretion in denying Bates’ motion to withdraw her
guilty plea. Additionally, Bates made no averment that there was a problem with her trial
counsel and as such, it did not trigger the district court’s duty to inquire relative to appointing
substitute counsel. Finally, the court did not abuse its discretion in sentencing Bates or in
denying her motion for leniency. Accordingly, the district court’s denial of Bates’ motion to




5
       Bates asserts that after she was sentenced, she completed the “Living with Mental Illness
Class” and now works as a janitor where she sweeps, mops, cleans rooms, and mows yards,
earning $0.30 per hour. She further contends that she has not been a problem in the facility.

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withdraw her guilty plea, denial of Bates’ Rule 35 motion, and Bates’ judgment of conviction
and sentence are affirmed.
       Chief Judge MELANSON and Judge GUTIERREZ CONCUR.




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