               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 37748

CAMERON D. WATTS,                                )      2011 Unpublished Opinion No. 723
                                                 )
       Petitioner-Appellant,                     )      Filed: November 22, 2011
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
STATE OF IDAHO,                                  )      THIS IS AN UNPUBLISHED
                                                 )      OPINION AND SHALL NOT
       Respondent.                               )      BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. Randy J. Stoker, District Judge.

       Order denying application for post-conviction relief, affirmed.

       Stephen D. Thompson, Ketchum, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Elizabeth A. Koeckeritz, Deputy
       Attorney General, Boise, for respondent. Elizabeth A. Koeckeritz argued.
                 ________________________________________________
GRATTON, Chief Judge
       Cameron D. Watts appeals the district court’s denial of his application for post-
conviction relief. For the reasons set forth below, we affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Watts was charged by indictment with felony murder in Twin Falls County. Watts was
accused of participating with John McElhiney in the kidnapping of Dale Miller. The State
alleged that Miller died in the course of that kidnapping. Watts pled not guilty to the charge.
       Trial was set to begin in October 2008. Plea negotiations were initially unsuccessful.
However, before the case went to trial, Watts’ counsel was advised that the State contemplated
filing other charges against Watts involving allegations of lewd and lascivious conduct in
multiple counties. Counsel met with Watts at the Twin Falls County Jail on October 4, 2008, to
discuss this development. Over the course of the following week, the parties reached a plea
agreement which was reduced to writing. This written agreement was comprised of two parts:


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(1) a one-page plea agreement to be filed in the criminal case; and (2) a two-page agreement.
Both agreements provided that Watts would enter a guilty plea to first degree felony murder and
that the parties would stipulate to a unified term of life, with twenty years determinate. Watts
waived his right to appeal unless the sentencing court exceeded the stipulated sentence. By the
terms of the two-page agreement, the State agreed not to prosecute the lewd and lascivious
conduct allegations. The parties further agreed that the two-page agreement would be filed
under seal.
          Watts and his counsel signed both agreements on October 7, 2008. Prior to signing those
documents, Watts was provided police reports on the lewd and lascivious conduct allegations.
Watts told his counsel that he would plead guilty to the felony murder charge based upon the
stipulated sentence agreement and the State’s agreement not to pursue the lewd and lascivious
conduct allegations. Watts completed a guilty plea advisory form on October 7, 2008, with the
assistance of counsel. A change of plea hearing was conducted on the same day and Watts pled
guilty to felony murder. Watts was sentenced, consistent with the plea agreement, to a unified
term of life with twenty years determinate.           Watts appealed the conviction and sentence;
however, the Idaho Supreme Court dismissed the appeal because he had waived his right to
appeal.
          Watts filed an application for post-conviction relief raising numerous issues.
Subsequently, Watts’ counsel filed a motion to withdraw all but two related issues regarding
entry of his plea. The motion was granted. An evidentiary hearing was conducted on the
remaining claims that Watts was coerced into entering his guilty plea, and that his trial counsel
provided ineffective assistance of counsel by failing to move to withdraw his guilty plea prior to
sentencing.      The district court denied the application, holding that the record directly
contradicted Watts’ coercion claim and that his counsel’s conduct was objectively reasonable.
Watts timely appealed.
                                                 II.
                                           DISCUSSION
          Watts claims that the district court erred in denying his application for post-conviction
relief, arguing that he was coerced into pleading guilty to the murder charges and that counsel
provided ineffective assistance by failing to move to withdraw his guilty plea prior to sentencing.




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       In order to prevail in a post-conviction proceeding, the applicant must prove the
allegations by a preponderance of the evidence. I.C. § 19-4907; Stuart v. State, 118 Idaho 865,
801 P.2d 1216 (1990). When reviewing a decision denying post-conviction relief after an
evidentiary hearing, an appellate court will not disturb the lower court’s factual findings unless
they are clearly erroneous. I.R.C.P. 52(a); Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656
(Ct. App. 1990). The credibility of the witnesses, the weight to be given to their testimony, and
the inferences to be drawn from the evidence are all matters solely within the province of the
district court. Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We
exercise free review of the district court’s application of the relevant law to the facts. Nellsch v.
State, 122 Idaho 426, 434, 835 P.2d 661, 669 (Ct. App. 1992).
       A claim of ineffective assistance of counsel may properly be brought under the Uniform
Post-Conviction Procedure Act. Murray v. State, 121 Idaho 918, 924-25, 828 P.2d 1323, 1329-
30 (Ct. App. 1992). To prevail on an ineffective assistance of counsel claim, the defendant must
show that the attorney’s performance was deficient and that the defendant was prejudiced by the
deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hassett v. State, 127 Idaho
313, 316, 900 P.2d 221, 224 (Ct. App. 1995). To establish a deficiency, the applicant has the
burden of showing that the attorney’s representation fell below an objective standard of
reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). Where, as
here, the defendant was convicted upon a guilty plea, to satisfy the prejudice element, the
claimant must show that there is a reasonable probability that, but for counsel’s errors, he or she
would not have pled guilty and would have insisted on going to trial. Plant v. State, 143 Idaho
758, 762, 152 P.3d 629, 633 (Ct. App. 2006). This Court has long adhered to the proposition
that tactical or strategic decisions of trial counsel will not be second-guessed on appeal unless
those decisions are based on inadequate preparation, ignorance of relevant law or other
shortcomings capable of objective evaluation. Howard v. State, 126 Idaho 231, 233, 880 P.2d
261, 263 (Ct. App. 1994).
A.     Coercion
       Watts claims that he was coerced into pleading guilty when his counsel only gave him a
few hours to decide whether to accept the State’s plea offer and told him that he could not talk to
anyone to discuss the plea agreement. When a guilty plea is entered upon the advice of counsel,
the voluntariness of the plea depends on whether counsel’s advice was within the range of


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competence demanded of attorneys in criminal cases. Hill v. Lockhart, 474 U.S. 52, 56 (1985);
Gilpin-Grubb v. State, 138 Idaho 76, 82, 57 P.3d 787, 793 (2002). Actual prejudice, as required
by Strickland’s second prong, is demonstrated by a showing of a reasonable probability that, but
for counsel’s errors, the defendant would not have pled guilty. Id.
       Watts testified that he was pressured into pleading guilty by the actions of his attorney
and staff. The district court found Watts’ assertions were in direct conflict with the record. In
the guilty plea advisory form, Watts indicated “yes” when asked “Have you had sufficient time
to discuss your case with your attorney?” and indicated “no” when asked “Do you need any
additional time before you enter your guilty plea(s)?” During the change of plea hearing, the
district court asked Watts, “Have you had enough time to discuss this matter with your lawyers?”
and once again Watts replied “yes.” During the change of plea hearing, the following exchange
took place between the court and Watts:
       THE COURT: Is there any other source, whether from attorney’s pressure,
       family pressure or otherwise, that you feel is making this a coercive event today?

       THE DEFENDANT: No

       THE COURT: This is entirely a voluntary choice by you, Mr. Watts?

       THE DEFENDANT: Yes.

       THE COURT: And you feel that you’ve had enough time, as you’ve told me, to
       talk to your lawyers about this decision; is that right?

       THE DEFENDANT: Yes.

       THE COURT: Have you also had time to talk to family or friends that you know
       and trust in making this kind of choice?

       THE DEFENDANT: Yes.

       THE COURT: And is there anyone in that vein that you’d like to talk to further
       before proceeding on with this decision today?

       THE DEFENDANT: No.

       Watts testified that he did not remember filling out the guilty plea advisory form. The
district court found this testimony to not be credible because he also admitted on cross-
examination that he filled out the form in his own handwriting. Watts also argues that he only
had a few hours to decide whether to accept the plea offer. The court also found that the


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discussions between Watts and his counsel were not as limited as he testified. The court pointed
to meetings--between Watts and his counsel--on October 4 and 6 to discuss the lewd and
lascivious conduct allegations and the meetings over several months prior to the execution of the
plea agreement to demonstrate that Watts had sufficient time to consider his options. The district
court found Watts’ testimony to not be credible.
        Watts further testified at the evidentiary hearing that he lied to the court because counsel
said that if Watts “told the truth on questions like that, that it would blow up in [his] face.” Once
again, the district court did not find Watts to be credible. Watts’ testimony implied that counsel
deliberately instructed Watts to lie to the court.       Counsel adamantly denied making that
statement or instructing Watts to do anything other than to tell the truth. The district court found
counsel’s testimony to be more credible than Watts’ testimony and, therefore, found Watts’
assertion that he lied to the court not credible.
        Credibility is a matter left to the district court. Larkin, 115 Idaho at 73, 764 P.2d at 440.
The district court determined that Watts’ testimony regarding his coercion claim was not
credible. On the other hand, Watts’ trial counsel’s testimony was deemed credible. Allegations
for post-conviction relief are insufficient for the granting of relief when they are clearly
disproved by the record of the original proceedings. Workman v. State, 144 Idaho 518, 523, 164
P.3d 798, 803 (2007). Watts’ claim of coercion is directly contradicted by the record, namely the
guilty plea advisory form and the plea colloquy. Watts’ attempts to explain away his prior
statement were found to be not credible. Watts has failed to demonstrate that any factual
findings of the district court are clearly erroneous. The district court did not err in denying
Watts’ claim that he was coerced into pleading guilty.
B.      Withdrawal of Guilty Plea
        Watts claims his counsel provided ineffective assistance by failing to move to withdraw
his guilty plea before sentencing.        Watts’ assertions encompass two distinct arguments:
(1) Watts specifically directed his attorneys to file a motion to withdraw his plea and, in the
alternative; (2) counsel should have concluded from Watts’ statements to him that Watts wanted
to withdraw his plea and counsel should have acted on this suggestion.
        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


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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. Idaho Criminal Rule 33(c) provides that a plea
may be withdrawn after sentencing only to correct manifest injustice. 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.
Freeman, 110 Idaho at 121, 714 P.2d at 90. 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).
       1.      Watts’ claim that he specifically told his attorney to file a motion to
               withdraw his plea

       Watts claims that he specifically instructed his counsel to file a motion to withdraw his
guilty plea. In support of this contention, Watts offered the testimony of his girlfriend. She
testified that they talked numerous times between the entry of the plea and sentencing and that
Watts communicated his desire to her to withdraw his plea. However, the district court found
that there was no credible evidence in the record that Watts’ girlfriend ever communicated this
desire to Watts’ counsel or their staff. Watts also testified that he “wanted” to withdraw his
guilty plea. On the other hand, one of his attorneys testified that he met with Watts many times
between the plea and sentencing and not once did Watts voice a desire to change his plea.
Numerous recorded conversations between Watts and his counsel were admitted into evidence
and the district court found that in none of them did he specifically ask to have his plea
withdrawn. The district court also took note of a letter Watts wrote to the prosecutor and a
recorded conversation between Watts and his aunt, neither of which mentioned a desire to
withdraw his plea. Finally, another of Watts’ attorneys testified that Watts never directed him to
file a motion to withdraw his guilty plea and that he would not have disregarded such a request.
Watts testified that he told this attorney that he “wanted” to withdraw his plea, to which the
attorney responded that there was “no way you could do it.” The district court found that the
attorney’s statement was an expression of opinion that the motion would be unsuccessful and
that Watts would lose the benefit of the plea bargain. The district court concluded that Watts did


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not instruct counsel to file a motion to withdraw his plea and any interpretation of Watts’
testimony to the contrary was not credible.
       Again, this Court defers to the district court’s credibility determinations. In addition, the
reasonable inferences from and the weight to be given to the evidence is the sole province of the
trial court. Larkin, 115 Idaho at 73, 764 P.2d at 440. Watts has failed to demonstrate that the
district court’s factual findings are clearly erroneous. Watts did have discussions with his
counsel about withdrawing his plea, but nowhere does the record reflect that Watts actually told
his counsel to file such a motion. Watts challenges only the district court’s factual determination
and not the application of the law based thereon. Consequently, the district court did not err in
denying Watts’ claim that counsel provided ineffective assistance in failing to file a motion to
withdraw guilty plea after being requested to do so.
       2.      Watts’ claim that his attorney should have filed a motion to withdraw his
               plea

       Watts alternatively asserts that his conversations with his attorneys and their staff placed
them on notice of his desire to withdraw his plea and, therefore, they should have known to file a
motion prior to sentencing. Neither party cited any case law to the district court or this Court
which specifically addressed a claim of ineffective assistance of counsel by failing to file a
motion to withdraw a guilty plea when the record does not establish that the defendant requested
that counsel file the motion.     We seriously doubt whether counsel could be held to have
performed below an objective standard of reasonableness by failing to file a motion to withdraw
a guilty plea voluntarily entered into by a defendant. This aspect of Watts’ claim appears more
properly analyzed as a failure to properly advise. 1



1
         The district court analogized Watts’ argument to a claim of ineffective assistance of
counsel in failing to file an appeal. In that context, there can be ineffective assistance of counsel
when an attorney directly disregards a client’s instructions to file an appeal and, in certain
circumstances, even where a defendant has not specifically directed an attorney to file an appeal.
Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000); Pecone v. State, 135 Idaho 865, 868, 26 P.3d
48, 51 (Ct. App. 2001). However, while the obligation to properly consult and advise and the
question of resulting prejudice are common to the analysis in both contexts, we do not find it
necessary to analogize to the failure to file an appeal claim. In addition, the substantive and
procedural bases for determining ineffective assistance of counsel in failing to file an appeal
differ from a claim of ineffective assistance in failing to file a motion to withdraw a plea without
request from the defendant.

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       The record is undisputed that counsel consulted with Watts about withdrawing his plea.
Counsel discussed the plea in the weeks prior to sentencing as evidenced by the recorded jail
conversation. Even Watts acknowledges that he was consulted on this subject prior to his
sentencing.    The district court found that counsel consulted with Watts concerning the
advantages and disadvantages of filing a motion to withdraw his plea and that Watts did not
instruct counsel to withdraw his plea because he himself concluded that it was not in his best
interest to do so. The district court’s findings of fact are supported by the record and are not
clearly erroneous.
       An attorney cannot sua sponte determine to file a motion to withdraw a client’s guilty
plea. That decision must be made by the client. An attorney’s obligation in this regard is limited
to consulting with the client and giving him or her proper advice regarding the process. Watts
was advised that if he was successful in withdrawing his plea, the State would not be bound to its
sentencing recommendation or its commitment not to file the lewd conduct charges. The district
court noted from the evidence that Watts had a great fear of going to the penitentiary labeled as a
sex offender, which is why that portion of the plea agreement was sealed. Watts was consulted
about withdrawing his guilty plea and has not asserted that such advice was improper. The
district court held that counsel’s performance regarding this matter did not fall below an
objective standard of reasonableness and we agree.
                                               III.
                                        CONCLUSION
       Watts has failed to demonstrate that his counsel coerced him into agreeing to a guilty
plea. He has also failed to demonstrate that his counsel provided ineffective assistance in failing
to move to withdraw his guilty plea. The district court’s decision denying Watts’ application for
post-conviction relief is affirmed.
       Judge LANSING and Judge GUTIERREZ CONCUR.




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