               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 46183

STATE OF IDAHO,                                )
                                               )    Filed: September 25, 2019
       Plaintiff-Respondent,                   )
                                               )    Karel A. Lehrman, Clerk
v.                                             )
                                               )    THIS IS AN UNPUBLISHED
JESSE TREVINO SALINAS,                         )    OPINION AND SHALL NOT
                                               )    BE CITED AS AUTHORITY
       Defendant-Appellant.                    )
                                               )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho,
       Minidoka County. Hon. Jonathan Brody, District Judge.

       Order denying motion to withdraw guilty plea, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Sally J. Cooley, Deputy
       Appellate Public Defender, Boise, for appellant. Sally J. Cooley argued.

       Hon. Lawrence G. Wasden, Attorney General; Andrew V. Wake, Deputy
       Attorney General, Boise, for respondent. Andrew V. Wake argued.
                 ________________________________________________

BRAILSFORD, Judge
       Jesse Trevino Salinas appeals from the district court’s order denying his motion to
withdraw his guilty plea. We affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       After observing Salinas make two turns without using his turn signal, drive over the solid
white line on the right-hand side of the road (commonly known as the fog line) with both
passenger side tires for approximately one hundred feet and then twice more cross over the fog
line, Detective Murphy pulled Salinas’ car over. Detective Murphy asked Salinas for his license,
registration, and proof of insurance.     After Salinas failed to produce proof of insurance,
Detective Murphy returned to his patrol vehicle to write Salinas a citation. During this time,
another officer deployed a drug dog around Salinas’ car.

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       The dog alerted, and a search of Salinas’ car yielded a syringe with residue. Salinas
denied the syringe was his, although he admitted using methamphetamine earlier that day.
Detective Murphy advised Salinas that if the syringe tested positive for drugs, he could be
charged.   Detective Murphy then released Salinas with a citation for failing to maintain
insurance. Subsequently, the syringe tested positive for methamphetamine.
       Several weeks after receiving the positive test results, Detective Murphy saw Salinas on
the street. When Salinas got into a vehicle driven by another individual, Detective Murphy
pulled the vehicle over to arrest Salinas based on the test results from the syringe seized during
the initial traffic stop. During the arrest, Detective Murphy discovered a digital scale in Salinas’
pocket, and Salinas indicated there were drugs in the vehicle stating, “everything in the car is
mine.” Through the passenger door, Detective Murphy observed several baggies, which were
later determined to contain approximately 16 grams of methamphetamine.
       Based on this evidence and the evidence discovered during the initial traffic stop, Salinas
was charged with possession of a controlled substance with the intent to deliver, Idaho
Code § 37-2732(a)(1)(A); possession of drug paraphernalia, I.C. § 37-2734A; two counts of
possession of a controlled substance, I.C. § 37-2732(c)(1); and an enhancement for a prior drug
conviction. Salinas pled guilty to possession with intent to deliver in exchange for the State
agreeing to drop the other charges. The plea agreement provided the State would recommend a
sentence of not more than three years determinate and five years indeterminate. The agreement,
however, was contingent on Salinas appearing at court hearings and refraining from further
criminal conduct. Specifically, the agreement provided that “the Defendant understands that the
State is released from this agreement if [he] commits any new and additional criminal acts prior
to sentencing, or if [he] fails to attend all scheduled court hearings without just cause.” Salinas
also completed and signed a guilty plea advisory form acknowledging he understood the rights
he was waiving.      The district court accepted the plea agreement, ordered a presentence
investigation report (PSI), and scheduled a sentencing hearing.
       Thereafter, Salinas failed a drug test performed as a condition of his release, failed to
appear for an interview for purposes of his PSI, and failed to appear for his sentencing hearing in
violation of his plea agreement. As a result, the district court issued an arrest warrant for Salinas.
When Detective Murphy attempted to arrest Salinas pursuant to this warrant, Salinas fled on foot



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and, while fleeing, he discarded several baggies of methamphetamine before being apprehended.
Based on this conduct, the State charged him with additional crimes.
          After the State charged Salinas with these new crimes, and about a month after he had
pled guilty to the prior charges, he moved to withdraw his guilty plea. In support, Salinas
asserted he had become aware of grounds for a motion to suppress the evidence Detective
Murphy discovered during the initial traffic stop. These grounds included (1) an alleged delay in
conducting the traffic stop for purposes of the drug dog; and (2) the Idaho Supreme Court’s
decision in State v. Fuller, 163 Idaho 585, 416 P.3d 957 (2018). 1 The Fuller decision was issued
three days after Salinas failed to appear at his sentencing hearing and ruled that crossing the fog
line alone is inadequate to establish reasonable suspicion for a traffic stop. Id. at 590, 416 P.3d
at 962.
          After a hearing, the district court concluded that Salinas’ plea was entered knowingly,
intelligently, and voluntarily; he was improperly motivated to withdraw his plea to avoid a
probable increased sentence after violating his plea agreement; and he had no just reason to
withdraw his plea. For these reasons, the district court denied Salinas’ motion to withdraw his
plea, and Salinas appeals this denial.
                                                II.
                                      STANDARD OF REVIEW
          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. State v. Freeman, 110 Idaho 117, 121, 714 P.2d 86, 90 (Ct. App. 1986).
                                                III.
                                           ANALYSIS
          Under Idaho Criminal Rule 33(c), the timing of a motion to withdraw a plea dictates the
legal standard to be applied. After sentencing, a defendant must show “manifest injustice” to
withdraw a guilty plea. I.C.R. 33(c). Before sentencing, however, a defendant need only show a
“just reason” for withdrawing a plea. State v. Hanslovan, 147 Idaho 530, 536, 211 P.3d 775, 781
(Ct. App. 2008). This case addresses a motion to withdraw a plea before sentencing, and thus
the “just reason” standard applies.

1
       Although Salinas asserted additional grounds below to support his claim of a viable
motion to suppress, he does not raise those additional grounds on appeal.
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       “The threshold ‘just reason’ requirement is ‘not an onerous burden.’” State v. Baxter,
163 Idaho 231, 234, 409 P.3d 811, 814 (2018). Rather, “[i]t is a reasonable requirement, to be
administered liberally and with due recognition of the serious consequences attending a guilty
plea.” Id. Whether a defendant has shown a just reason for withdrawing his guilty plea is a
factual decision within the district court’s discretion. State v. Sunseri, 165 Idaho 9, 14, 437 P.3d
9, 14 (2018). “The trial court is encouraged to liberally exercise its discretion in granting a
motion to withdraw a guilty plea.” Id. The district court may temper its liberal discretion,
however, if the defendant has learned about a probable sentence recommendation before moving
to withdraw his plea. State v. Hartsock, 160 Idaho 639, 641, 377 P.3d 1102, 1104 (Ct. App.
2016). For example, if a defendant reviews his PSI or other information and learns of an
increased sentence recommendation, the district court may temper its liberal discretion to allow a
defendant to withdraw his plea. Id. The district court may also temper its liberal discretion if the
defendant has breached his plea agreement before seeking to withdraw his guilty plea. Baxter,
163 Idaho at 235-36, 409 P.3d at 815-16.          In other words, “the [district] court has broad
discretion to take into account the defendant’s apparent motive” in seeking to withdraw his plea.
State v. Akin, 139 Idaho 160, 162, 75 P.3d 214, 216 (Ct. App. 2003).
       The first step in analyzing whether a guilty plea may be withdrawn is to determine
whether the plea was knowing, intelligent, and voluntary. Sunseri, 165 Idaho at 14, 437 P.3d at
14. If the district court concludes it was, then the defendant has the burden of showing a just
reason exists to withdraw his plea. Hanslovan, 147 Idaho at 535-36, 211 P.3d at 780-81.
Although a defendant does not need to show a constitutional defect in his plea to establish a just
reason, the withdrawal of a plea before sentencing is not an automatic right. Id.
       In determining what constitutes a just reason, the Idaho Supreme Court in Sunseri has
identified certain, nonexclusive factors the district court should consider:
       Among other factors, the trial court should consider: (1) whether the defendant
       has credibly asserted his legal innocence; (2) the length of delay between the
       entry of the guilty plea and the filing of the motion; (3) whether the defendant had
       the assistance of competent counsel at the time of the guilty plea; and (4) whether
       withdrawal of the plea will inconvenience the court and waste judicial resources.
Sunseri, 165 Idaho at 14, 437 P.3d at 14.             Additionally, the defendant’s good faith, his
credibility, and the weight of his assertions in support of his motion bear on whether a defendant
has a just reason to withdraw his plea and are matters for the district court to decide. Id.


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       If the defendant meets its burden of showing a just reason to withdraw his guilty plea,
then the State may avoid the withdrawal of a plea by showing substantial prejudice. Id. at 14-15,
437 P.3d at 14-15. Substantial prejudice requires more than mere inconvenience and may
include, for example, the death of a principal witness; the unavailability of evidence; or the
passage of time affecting witnesses’ memories, especially witnesses with limited mental abilities.
Id. at 15, 437 P.3d at 15. Even absent substantial prejudice, however, the defendant’s failure to
present and support a just reason for withdrawal dictates against granting a withdrawal.
Harstock, 160 Idaho at 641, 377 P.3d at 1104.
       In this case, Salinas does not challenge the district court’s conclusion that his guilty plea
was knowing, intelligent and voluntary, 2 and the State does not attempt to show it would suffer
substantial prejudice if Salinas’ plea were withdrawn. Rather, the issue on appeal is whether the
district court erred by concluding Salinas failed to show a just reason to withdraw his guilty plea.
The district court did not have the benefit of the Idaho Supreme Court’s discussion in Sunseri of
the factors a court should consider when determining “just reason” for a plea withdrawal.
Sunseri was issued after the district court’s denial of Salinas’ motion. Regardless, we conclude
the district court’s analysis comports with the proper analysis, and the district court correctly
concluded Salinas failed to show a just reason to withdraw his plea.
       The district court essentially concluded Salinas did not have a credible claim of legal
innocence by rejecting his claim that he had a viable motion to suppress. See Sunseri, 165 Idaho
at 14, 437 P.3d at 14 (ruling whether defendant has credibly asserted legal innocence is a factor
for consideration). Salinas contends he has a viable suppression motion because Deputy Murphy
purportedly delayed the traffic stop unlawfully for the drug dog and because Deputy Murphy did
not have reasonable suspicion under Fuller to stop Salinas.
       In Fuller, an officer observed Fuller drive onto and temporarily cross over the fog line.
Id. at 587, 416 P.3d at 959.      Based only on this conduct, the officer pulled Fuller over,
discovered she did not have a valid driver’s license or proof of insurance, and arrested her for


2
        Salinas does argue that the district court “placed too onerous a burden” on him by
requiring him to show his plea was not knowing, intelligent, or voluntary. Had Salinas made
such a showing, however, that would have ended the analysis and been grounds for allowing him
to withdraw his plea. Because he made no argument that his plea was not knowing, intelligent or
voluntary, the district court properly proceeded to the next step in the analysis--whether a just
reason exists to allow Salinas to withdraw his plea.
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these violations.    Id.   An inventory search of Fuller’s vehicle revealed drugs and drug
paraphernalia, resulting in criminal charges. Fuller moved to suppress this evidence arguing the
officer lacked reasonable suspicion to stop Fuller, and the district court granted her motion. Id.
       Affirming this decision, the Idaho Supreme Court reiterated its prior ruling in State v.
Neal, 159 Idaho 439, 447, 362 P.3d 514, 522 (2015), that an isolated incident of touching a fog
line does not constitute a traffic violation. Fuller, 163 Idaho at 590, 416 P.3d at 962. Further,
the Court ruled “merely that a tire temporarily touches or crosses the fog line will not by itself
give rise to a reasonable, articulable suspicion” for a traffic stop. Id. Importantly, however, the
Court ruled that driving on or crossing the fog line may still factor into reasonable suspicion:
“To be sure, driving onto or across the fog line may be considered when evaluating whether an
overall pattern of erratic or unsafe driving gives rise to a reasonable, articulable suspicion that [a
traffic violation has occurred] under a totality of circumstances.” Id.
       In this case, the district court correctly distinguished the facts in Fuller from Deputy
Murphy’s traffic stop of Salinas on the basis that Deputy Murphy relied not only on the fact that
Salinas crossed over the fog line, but also on the fact that he failed to use his turn signals twice.
In other words, Deputy Murphy did not base his reasonable suspicion exclusively on Salinas’
crossing the fog line. Rather, in accord with Fuller, Deputy Murphy’s reasonable suspicion was
based on Salinas’ overall pattern of driving under the totality of the circumstances, which
included more than merely crossing the fog line. See id.
       Salinas contends the district court improperly speculated about the facts in this case to
distinguish it from Fuller. Specifically, Salinas challenges the district court’s reliance on Deputy
Murphy’s probable cause affidavit, arguing the district court was “merely speculating after
reading the probable cause affidavit as to what facts would be introduced at [a suppression]
hearing.” Salinas’ argument, however, misconstrues the burden: “The burden rests on the
defendant to demonstrate a justification for withdrawal of the guilty plea.” State v. Stone, 147
Idaho 330, 333, 208 P.3d 734, 737 (Ct. App. 2009).
       Whether meeting this burden requires the defendant to offer admissible evidence in
support of his motion to withdraw his plea turns on the nature of the defendant’s purported just
reason for withdrawing his plea. As this Court has previously ruled in Stone:
       Whether this showing [of a just reason] requires presentation of new evidence
       depends upon the basis for the motion--whether it turns upon matters that appear
       in the court’s record, or that occurred in open court, or alleged events that

                                                  6
       occurred outside the judicial proceedings and that the State has not acknowledged
       or stipulated to.
Id. In this case, Salinas’ reliance on Fuller turns on matters outside the record--namely, it turns
on whether facts support Salinas’ assertion that Deputy Murphy improperly based his reasonable
suspicion exclusively on Salinas’ crossing the fog line. Because these purported facts were not
in the record, Salinas had the burden to offer them in support of his motion to withdraw his plea.
Salinas, however, failed to make any showing regarding the traffic stop.
       Salinas contends that because the “just reason” requirement is “not an onerous burden”
he was not required to present anything other than the mere assertion he had a viable motion to
suppress under Fuller. A mere assertion of a legal argument without more, however, does not
satisfy Salinas’ burden to demonstrate a justification for withdrawing a plea agreement. Absent
an actual showing based on admissible evidence that Salinas’ motion to suppress would be
viable, the only facts in the record were that a motion to suppress was not viable. As a result,
Salinas failed to meet his burden.
       This failure to make a showing with admissible evidence is also fatal to Salinas’ claim
that Deputy Murphy unlawfully delayed the initial traffic stop for the drug dog. Nothing in the
record supports Salinas’ assertion that Deputy Murphy improperly delayed the stop. Salinas
offers no factual support for his claim. Indeed, he does not even cite any supporting case law.
Although he is correct that the district court did not mention his drug-dog argument in denying
his motion to withdraw his plea, Salinas provided nothing for the district court to consider.
Therefore, any failure to mention the argument was not an abuse of discretion.
       In addition to rejecting Salinas’ claim of a viable legal defense, the district court also
ruled he was not motivated by a claim of innocence but, rather, by the fact he had twice violated
his plea agreement by failing to appear for his sentencing hearing and being charged with new
crimes. Because Salinas had violated the plea agreement, the State was no longer bound by its
recommended sentence. The district court concluded this circumstance was akin to Salinas being
improperly motivated to withdraw his plea after learning information about his probable sentence
in his PSI.
       Salinas accuses the district court of speculating about the facts to reach this conclusion,
including purportedly speculating the State would not be bound by the plea agreement and would
request an increased sentence. Although Salinas concedes the State would likely no longer be
bound by the plea agreement, he argues “none of these speculative facts had come to fruition at
                                                7
the time [he] moved to withdraw his plea.” Salinas, however, does not dispute he violated the
plea agreement twice before seeking to withdraw his plea. Indeed, he does not and cannot
dispute that he failed to appear at his sentencing hearing and was charged with additional crimes
based on conduct occurring after signing the agreement--both of which incidents violated the
plea agreement. As a result, the district court’s conclusion that Salinas likely sought to withdraw
his plea to avoid an increased sentencing recommendation was not speculative. Rather, Salinas’
good faith and credibility about his motivation for moving to withdraw his plea were matters for
the district court to decide. See Sunseri, 165 Idaho at 14, 437 P.3d at 14; see also State v. Litz,
122 Idaho 387, 389, 834 P.2d 904, 906 (Ct. App. 1992) (affirming denial of motion to withdraw
plea where defendant believed State would request harsher sentence after defendant violated plea
agreement). Having concluded Salinas was motivated by information that the State would likely
recommend an increased sentence, the district court correctly concluded it could temper its
liberal discretion in reviewing Salinas’ motion to withdraw his plea. See Baxter, 163 Idaho at
235-36, 409 P.3d at 815-16 (concluding district court may temper liberal discretion after
defendant breaches plea agreement); see also Hartsock, 160 Idaho at 641, 377 P.3d at 1104
(concluding district court may temper liberal discretion if defendant has reviewed his PSI or
received other information about sentencing).
       Finally, Salinas criticizes the State for not addressing the district court’s ruling in the
context of Sunseri. Regardless, the district court’s analysis both comports with the analysis
outlined in Sunseri and relies on case law Sunseri cites with approval, including Hanslovan and
Harstock. Although the district court did not address all the factors identified in Sunseri, none of
the remaining factors support Salinas’ position that just reason exists to allow him to withdraw
his plea. Nothing in the record indicates Salinas’ counsel was incompetent at the guilty plea
stage. A total absence of any admissible evidence to support Salinas’ proposed suppression
motion suggests addressing such a motion would have been a waste of judicial resources.
Although there was not a lengthy delay between Salinas’ plea and his motion to withdraw that
plea, the events that occurred during that interim were significant. During the interim, Salinas
violated his plea agreement twice, which weighs in favor of not allowing him to withdraw his
plea. For these reasons, the district court did not abuse its discretion by ruling Salinas failed to
show a just reason to withdraw his plea.



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                                                IV.
                                         CONCLUSION
       Because Salinas has failed to show there is just reason to allow him to withdraw his
guilty plea, we affirm the district court’s order denying his motion.
       Chief Judge GRATTON and Judge HUSKEY CONCUR.




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