               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 45269

STATE OF IDAHO,                                )
                                               ) Filed: September 18, 2019
       Plaintiff-Respondent,                   )
                                               ) Karel A. Lehrman, Clerk
v.                                             )
                                               )
CARLOS ENRIQUE PAGAN-LOPEZ,                    )
                                               )
       Defendant-Appellant.                    )
                                               )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Lynn G. Norton, District Judge.

       Judgment of conviction for possession of a controlled substance and introduction
       of major contraband into a correctional facility, vacated; judgment for
       restitution, vacated and case remanded.

       Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford,
       Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

LORELLO, Judge
       Carlos Enrique Pagan-Lopez appeals from his judgment of conviction for possession of a
controlled substance and introducing major contraband into a correctional facility. Pagan-Lopez
also appeals from the district court’s judgment for restitution. For the reasons set forth below,
we vacate the judgment of conviction, vacate the judgment for restitution, and remand for further
proceedings.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Officers were dispatched to a silent residential alarm at approximately 5 a.m. As part of
their investigation, the officers stopped a vehicle to investigate whether “it was potentially


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involved in the burglary alarm.” Pagan-Lopez was a passenger in that vehicle. During the
course of the stop, the officers discovered that Pagan-Lopez had an outstanding arrest warrant.
He was arrested on the warrant and transported to jail.            During a search at the jail,
methamphetamine was discovered in his sock. The State charged Pagan-Lopez with possession
of a controlled substance, I.C. § 37-2732(c), and introduction of major contraband into a
correctional facility, I.C. §§ 18-2510(3) and 19-2520F.
       Pagan-Lopez filed a motion to suppress the evidence discovered as a result of the search,
arguing that the officers lacked reasonable suspicion to stop the vehicle and that the search at the
jail was the fruit of the unlawful seizure. The district court denied Pagan-Lopez’s motion,
finding that there was reasonable suspicion to conduct the stop and, therefore, the evidence
discovered as a result of that stop was admissible.
       Prior to trial, Pagan-Lopez and the State reached an agreement in which Pagan-Lopez
agreed to plead guilty to possession of a controlled substance and, in return, the State would
dismiss the introduction of major contraband into a correctional facility charge. The State also
agreed to certain sentencing recommendations. However, after questioning Pagan-Lopez, the
district court refused to accept Pagan-Lopez’s guilty plea, unless it was entered as an Alford 1
plea, finding that he had a potential defense based on his representation that he possessed the
methamphetamine with the intent to keep it away from children and dispose of it at some point.
The case, therefore, proceeded to trial and a jury found Pagan-Lopez guilty of both charges. The
district court subsequently entered a judgment of conviction and an order for restitution and
judgment for prosecution costs. Pagan-Lopez appeals.
                                                II.
                                   STANDARD OF REVIEW
       Whether to accept a defendant’s guilty plea is reviewed for an abuse of discretion. State
v. Jones, 129 Idaho 471, 474, 926 P.2d 1318, 1321 (Ct. App. 1996). When a trial court’s
discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry
to determine whether the lower court: (1) correctly perceived the issue as one of discretion;
(2) acted within the boundaries of such discretion; (3) acted consistently with any legal standards


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


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applicable to the specific choices before it; and (4) reached its decision by an exercise of reason.
State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018).
                                                 III.
                                            ANALYSIS
       Pagan-Lopez raises five claims of error on appeal: (1) the district court erred in denying
his motion to suppress; (2) the district abused its discretion by refusing to accept his guilty plea;
(3) the district court abused its discretion when it excluded certain testimony at trial; (4) a double
jeopardy violation; and (5) the district court abused its discretion by ordering restitution for the
costs of prosecution.     We hold that the district court erred in rejecting Pagan-Lopez’s
unconditional guilty plea to possession of a controlled substance on the basis that he had a
potential defense even though he indicated his desire to waive that defense. Consequently, we
decline to address Pagan-Lopez’s remaining claims with the exception of his restitution claim.
As to Pagan-Lopez’s restitution claim, we vacate the judgment for restitution.
A.     Guilty Plea
       Pagan-Lopez asserts that the district court abused its discretion by rejecting his guilty
plea because the proffered guilty plea satisfied all of the criteria necessary for its acceptance and
Pagan-Lopez should not have been required to pursue a defense he wanted to waive. The State
responds that it was within the district court’s discretion to conclude that there was an inadequate
factual basis for Pagan-Lopez’s guilty plea and, as such, the district court could reject it. We
hold that Pagan-Lopez’s guilty plea should not have been rejected on the basis that he had a
potential defense because he was entitled to waive that defense and plead guilty.
       The pretrial plea agreement contemplated that Pagan-Lopez would enter an
unconditional 2 guilty plea to possession of a controlled substance and the State would dismiss
the charge for introducing major contraband into a correctional facility. The agreement also
required the State to be bound by certain sentencing recommendations and contemplated that
Pagan-Lopez would pay restitution.

2
        Had Pagan-Lopez’s plea agreement reserved the right to pursue the suppression issue, the
Court would address the issue on appeal. See I.C.R. 11(a)(2); State v. Manzanares, 152 Idaho
410, 420, 272 P.3d 382, 392 (2012). However, because Pagan-Lopez’s proffered guilty plea
expressly waived this issue, and because we hold that the guilty plea should not have been
rejected, the suppression issue need not be considered.

                                                  3
       During the plea colloquy, Pagan-Lopez responded to a series of questions from the
district court regarding the validity of his plea. Pagan-Lopez’s responses to those questions
included that he read and understood the guilty plea advisory form; he did not require further
explanation of the contents of the advisory form; he personally signed and initialed the advisory
form; he understood the proceedings and was not impaired by any conditions or medications; he
was mentally and physically fit to proceed; he was not coerced into entering a guilty plea; he
understood he was not required to enter a guilty plea; and he was waiving his right to appeal
certain issues by pleading guilty. The district court then engaged in the following colloquy with
Pagan-Lopez:
       Q.      Do you want to enter into this plea agreement?
       A.      Yes; I do.
       Q.      And do you want to enter a guilty plea today?
       A.      Yes.
       Q.      If that’s the case, do you have a copy of the information in front of you?
       A.      Yes, Your Honor.
       Q.      Count 1 alleges that on or about December 2 of 2016, that you were in
       Ada County, Idaho, and that you unlawfully possessed a controlled substance that
       the state alleges was methamphetamine, a Schedule II, controlled substance?
               How do you think you committed this crime?
       A.      I pick it up on the street and put it on my socks and forget about it. I got
       arrested, and I end up over there with the substance.
       Q.      Okay, so whenever you say, “I pick it up,” do you mean
       methamphetamine?
       A.      Yeah.
       Q.      Did you know it was methamphetamine?
       A.      Actually, I knew it was some kind of controlled substance, but I didn’t
       know exactly what it was.
       Q.      But you knew it was a controlled substance?
       A.      Yes.
       Q.      And was it your intention to possess that, to keep it?
       A.      My intention was to throw it away, but I didn’t find the right place to
       throw it away.
       Q.      So do you think that--how long did you possess it?
       A.      Your Honor, I put it on my socks, and I forgot about it. I don’t remember
       how long--several hours.
       Q.      Do you believe you had any lawful reason to have it?
       A.      I did no time, no reason to have it, other than I found it, and there was a lot
       of kids around the area that I found it, and I just grab it to throw it away later in
       the right place, and I forgot about that.



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       Based on the foregoing exchange, the district court concluded Pagan-Lopez’s guilty plea
was not “provident” because he asserted “a defense that he had a lawful reason to possess [the
methamphetamine], to dispose of it.”        The district court also stated that Pagan-Lopez’s
explanation for possessing the methamphetamine meant that he had not “admitted to every
element of the offense.” The prosecutor argued that holding on to the methamphetamine until it
could be thrown away was not a lawful reason to possess it. After reviewing the standard jury
instruction defining possession, 3 the district court agreed that Pagan-Lopez admitted that he
possessed a controlled substance, but expressed concern that Pagan-Lopez’s statements
implicated a potential necessity defense under ICJI 1512. The district court thereafter asked
Pagan-Lopez about certain aspects of a potential necessity defense:
       Q.      Mr. Pagan-Lopez, I know that you said that you did this to protect small
       children and you plan to dispose of it. You made contact, or contact was made
       with law enforcement with you, at that first contact with police.
               Did you give them the methamphetamine so that they could dispose of it?
       A.      No, no. I got nervous because they just arrest me, and I forgot about it. I
       forgot before that I had it. At the moment the cops intervene with me, I just
       completely forgot anything else.
       Q.      So you didn’t mention to the cops that there’s methamphetamine in your
       sock?
       A.      I did not at all. I even got surprised because when they found it, is when I
       actually remembered it. I just had that.
       The district court then gave defense counsel an opportunity to comment.             Defense
counsel argued:
               Your Honor, I would just say that I have discussed with my client this
       issue in that his potential defense of necessity and whether he would like to go
       trial with a necessity with possibly posing the necessity defense, or take a plea
       deal in this case, he has indicated to me that he would like to take the plea deal if
       the court is willing to accept it and then forego trial. That’s my understanding of
       my client’s wishes at this point in time.
               I understand the court’s ruling, and I think there was actually a case out of
       Elmore County recently on post-conviction where an individual actually walked
       up to a law enforcement officer’s house and handed them the methamphetamine,
       and it’s going back on remand--or has been put back for trial with the necessity
       defense being proffered. I think my facts are a lot harder to get to, given the time

3
       A person has possession of something if the person knows of its presence and has
physical control of it, or has the power and intention to control it. ICJI 421.



                                                5
           of the morning, my client’s just now statement under oath that proving that there
           were children present, essentially, and in the middle of the night, would be a very
           hard burden, and my client would like to preserve the plea offer in this case.
The district court inquired of Pagan-Lopez again:
                  Mr. Pagan-Lopez, look, I don’t want to twist your arm to enter a guilty
           plea. This case is set for trial. We will try the case. If you want to present the
           evidence that you’ve told me here today to a jury, they certainly have the ability
           to weigh and determine that, so I don’t want you to feel like you’re being
           pressured into entering a guilty plea.
                  Do you want to enter a guilty plea today?
Pagan-Lopez answered: “I do.” In light of Pagan-Lopez’s response, the district court stated it
would accept an Alford plea. However, the State refused to consent to such a plea. Accordingly,
the district court did not allow Pagan-Lopez to plead guilty and required him to proceed to trial,
stating:
           I don’t find his statements to be provident as it goes to a plea, that there is a
           defense that’s available. I recognize under North Carolina v. Alford, people may
           elect to take a plea rather than go to trial in evaluating potential outcomes, but,
           given the fact that he’s not willing to admit that it was not lawful possession, I am
           not willing to take a plea at this point. So that’s where we are. I will certainly
           include Instruction 1512, the necessity defense, in the instructions.
           The district court’s rejection of Pagan-Lopez’s guilty plea was inconsistent with the
applicable legal standards in two respects. First, Pagan-Lopez was not required to admit that his
possession of methamphetamine was not lawful because that is not an element of the offense. To
be guilty of possession of methamphetamine, the defendant must have possessed
methamphetamine knowing it was methamphetamine or believing it was a controlled substance.
ICJI 403. Pagan-Lopez admitted these elements as part of his guilty plea. 4 Because unlawful
possession is not an element of the crime, Pagan-Lopez’s guilty plea should not have been
rejected based on his failure to admit such. Cf. Sparrow v. State, 102 Idaho 60, 61, 625 P.2d


4
        Contrary to the State’s argument, Pagan-Lopez admitted he intended to possess the
methamphetamine.        That Pagan-Lopez claimed he only intended to possess the
methamphetamine until some future time when he had an opportunity to throw it away does not
equate to a lack of intent to possess it. Further, the State’s reliance on Schoger v. State, 148
Idaho 622, 226 P.3d 1269 (2010) is misplaced because, unlike in Schoger, Pagan-Lopez did not
deny any elements of the offense to which he was pleading guilty and there was a factual basis
for his guilty plea.

                                                    6
414, 415 (1981) (holding that denial of criminal intent does not affect the validity of a guilty
plea).
         Second, although a defendant does not have a constitutional or statutory right to plead
guilty, the right to present a defense is constitutionally based and personal to the defendant. See
Lynch v. Overholser, 369 U.S. 705, 719 (1962) (declining to hold that there is an absolute right
to have a guilty plea accepted); Schoger, 148 Idaho at 629, 226 P.3d at 1276 (holding there is no
constitutional or statutory right to plead guilty); State v. Meister, 148 Idaho 236, 239, 220 P.3d
1055, 1058 (2009) (stating that the right to present a defense is protected by the Sixth
Amendment to the United States Constitution). Just as it is the defendant’s right to pursue the
defense, it is likewise the defendant’s right to waive the defense. See Godinez v. Moran, 509
U.S. 389, 398 (1993) (noting that a criminal defendant, in consultation with counsel, may be
called upon to decide whether and how to present a defense and whether to raise one or more
affirmative defenses); Town of Newton v. Rumery, 480 U.S. 386, 393 (1987) (noting that the
criminal process is replete with situations requiring the making of difficult judgments as to which
course to follow); see also North Carolina v. Alford, 400 U.S. 25, 31 (1970) (reiterating that a
guilty plea is valid if it “represents a voluntary and intelligent choice among the alternative
courses of action open to the defendant”). As such, a trial court should not force a defendant to
pursue a defense he or she wishes to waive. To do so effectively substitutes the trial court’s
evaluation of the defense over the defendant’s own assessment of the defense. See State v. Whitt,
378 S.E.2d 102, 104 (W. Va. 1989) (holding that trial court should not have rejected a proffered
guilty plea due to a possible entrapment defense because, in doing so, the court substituted its
weighing of the alternatives for the defendant’s properly counseled weighing of the same
alternatives); see also Tremblay v. Overholser, 199 F. Supp. 569, 570 (D.D.C. 1961) (holding
that “it is a deprivation of a constitutional right to force any defense on a defendant in a criminal
case or to compel any defendant in a criminal case to present a particular defense which he does
not desire to advance”); State v. Low, 192 P.3d 867, 877 (Utah 2008) (stating general rule that a
defendant cannot be forced to assert an affirmative defense); State v. Jones, 664 P.2d 1216, 1219
(Wash. 1983) (concluding that a criminal defendant has a constitutional right to at least broadly
control his own defense). Indeed, there are important reasons why a defendant may choose to
waive a potential defense. For example, the defense may be limited by the rules of evidence.


                                                 7
See United States v. Scheffer, 523 U.S. 303, 308 (1998) (holding that accused’s right to present a
defense is not abridged by rules of evidence so long as rules are not arbitrary or disproportionate
to the purposes they are designed to serve); State v. Jones, 160 Idaho 449, 452, 375 P.3d 279,
282 (2016) (recognizing a criminal defendant’s Sixth Amendment right to present a defense is
not unlimited and is subject to relevancy requirements and, even if relevant, evidence may be
excluded in certain circumstances).     Also, certain defenses may not be viable absent the
defendant’s testimony, but the defendant may not wish to waive his or her Fifth Amendment
right in order to advance the defense due to the risks associated with such a waiver. See Florida
v. Nixon, 543 U.S. 175, 187 (2004) (noting that the decision whether to testify belongs to the
defendant). 5
       In this case, the district court rejected Pagan-Lopez’s guilty plea, in part, because the
district court found that Pagan-Lopez may have a “necessity defense” that the jury could
consider. However, in consultation with counsel, Pagan-Lopez expressly indicated a desire to
waive that defense and take advantage of the State’s plea offer because of the factual difficulties
associated with pursuing the defense. This was Pagan-Lopez’s decision to make. While the
district court could inquire into whether Pagan-Lopez knowingly, voluntarily and intelligently
waived any potential defenses, Pagan-Lopez’s guilty plea should not have been rejected based on
the district court’s own assessment of a possible necessity defense. Nor should the acceptance of
Pagan-Lopez’s guilty plea have been predicated on the State’s willingness to consent to an
Alford plea. Even assuming the State’s consent to an Alford plea was necessary pursuant to the
terms of the plea agreement, Pagan-Lopez’s guilty plea was valid regardless of whether it was
taken pursuant to Alford. 6 As explained in Alford, “a judgment of conviction resting on a plea of


5
       We note that, with respect to the particular defense noted by the district court and
considered by Pagan-Lopez, this Court has held that a defense of innocent or temporary
possession of a controlled substance is not established under Idaho law. Payne v. State, 159
Idaho 879, 884, 367 P.3d 274, 279 (Ct. App. 2016). It appears that defense counsel may have
been referring to Payne in his argument regarding part of the difficulty of pursuing such a
“defense” at trial.
6
        We note that Pagan-Lopez’s guilty plea was not a traditional Alford plea in the sense that
Pagan-Lopez did not maintain his innocence or refuse to admit an element of the crime. See
State v. Dye, 124 Idaho 250, 255, 858 P.2d 789, 794 (Ct. App. 1993) (noting interpretation of

                                                8
guilty is justified by the defendant’s admission that he committed the crime charged against him
and his consent that judgment be entered without a trial of any kind.” Alford, 400 U.S. at 32.
Pagan-Lopez admitted he committed the crime, expressly stated that he wished to waive any
potential defense, and requested the entry of judgment without a trial.               Accordingly,
Pagan-Lopez’s proffered guilty plea should not have been rejected.
B.     Restitution
       Pagan-Lopez contends that the evidence in support of the judgment for restitution for the
costs of prosecution was insufficient because it was a statement of costs that did not comply with
the standards set forth in State v. Nelson, 161 Idaho 692, 390 P.3d 418 (2017) and State v.
Cunningham, 161 Idaho 698, 390 P.3d 424 (2017). 7 The State responds that, if this Court grants
relief on Pagan-Lopez’s claim that the district court abused its discretion by failing to accept his
guilty plea, the Court need not address the remaining issues on appeal. Alternatively, the State
argues that the statement of costs submitted in support of the restitution award was sufficient. In
response to the State’s contention that this Court need not address restitution if relief is granted
on his guilty plea claim, Pagan-Lopez asserts that the restitution issue must still be resolved
because the “State should not get a second bite at the apple.” We decline to address the
sufficiency of the evidence in support of the restitution award entered following trial in light of
our conclusion that Pagan-Lopez’s guilty plea should not have been rejected.
       At the hearing considering Pagan-Lopez’s guilty plea, the district court reviewed the
guilty plea advisory form and stated: “And he’s agreeing to pay restitution. Does that include
the dismissed charge?” The prosecutor answered: “It would. I don’t know of any related to that
charge that isn’t related to the laboratory analysis.” The court then inquired: “And is there any
other terms of the restitution agreement that’s part of the plea agreement?” The prosecutor




Alford plea as one where the defendant maintains innocence or refuses to admit certain elements
of the charged offense). To the contrary, as previously noted, Pagan-Lopez admitted he
possessed the methamphetamine believing it was a controlled substance.
7
       At Pagan-Lopez’s request, this appeal was suspended pending the outcome of the appeal
following remand in Cunningham. That decision was issued on February 21, 2019, State v.
Cunningham, 164 Idaho 759, 435 P.3d 539 (2019), after which this appeal was reinstated.

                                                 9
answered: “Typically, we agree to costs of restitution. That particular point is up in the air right
now. I anticipate that will be at least a substantive discussion, but I don’t believe he’s agreed to
it.”
       Although the guilty plea advisory form is not included in the record on appeal, it appears
from the record that restitution was at least contemplated as part of the plea agreement. The plea
agreement is what Pagan-Lopez contends he was denied the benefit of as a result of the district
court rejecting his guilty plea. If the plea agreement contemplated that Pagan-Lopez would pay
restitution, he cannot avoid that obligation when the benefit of the agreement is the very relief he
seeks in relation to the claim on which he has prevailed.         Thus, we reject Pagan-Lopez’s
invitation to vacate the restitution award on the theory that the State is not entitled to a “second
bite at the apple” and, instead, vacate the award and remand for determination of a proper award,
if any, based on the terms of the plea agreement.
                                                IV.
                                         CONCLUSION
       Pagan-Lopez proffered a factual basis for his guilty plea and indicated a desire to waive
any potential defense to the offense that was the subject of his guilty plea. Thus, Pagan-Lopez’s
guilty plea to possession of a controlled substance should not have been rejected on either basis.
We, therefore, vacate the judgment of conviction and the judgment for restitution and remand for
further proceedings consistent with this opinion and the terms of the plea agreement.
       Chief Judge GRATTON and Judge HUSKEY, CONCUR.




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