                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                     Docket No. 39646-2012

STATE OF IDAHO,                                       )
                                                      )      Lewiston, April 2013 Term
       Plaintiff-Respondent,                          )
                                                      )      2013 Opinion No. 54
v.                                                    )
                                                      )      Filed: April 25, 2013
CHARLES EARL GUESS,                                   )
                                                      )      Stephen W. Kenyon, Clerk
       Defendant-Appellant.                           )
                                                      )

       Appeal from the District Court of the Second Judicial District of the State of
       Idaho, in and for Latah County. The Hon. John R. Stegner, District Judge.

       The order of the district court is affirmed.

       Roderick C. Bond, Bellevue, Washington, argued for appellant.

       Lori Anne Fleming, Deputy Attorney General, Boise, argued for respondent.



EISMANN, Justice.
       This is an appeal out of Latah County from an order denying the defendant’s motion to
set aside his guilty plea to aggravated assault and dismiss the charge after he had successfully
completed his five years of probation. He contends that the terms of his plea agreement entitled
him to the relief he requested and, if it does not, that the court abused its discretion in denying
the motion based upon the fear of the victim, his ex-wife. We affirm.


                                               I.
                                      Factual Background.

       On April 26, 2006, during the pendency of divorce proceedings, Charles Earl Guess, his
wife, and their respective attorneys agreed that Ms. Guess and her attorney would meet Mr.
Guess at the parties’ residence so that they could walk through the house and look in the vault
with Mr. Guess present. When Ms. Guess and her attorney arrived at the house located near
Moscow, they walked with Mr. Guess into the basement where the vault was located. Mr. Guess
allowed his wife and her attorney to walk into the vault first, and then he pulled out a
semiautomatic pistol, pointed it at them, and stated that he was going to kill them. While holding
the pistol in his right hand, he struck Ms. Guess twice in the face with his left fist. She and her
attorney were ultimately able to talk Mr. Guess into putting the gun down. After Ms. Guess and
her attorney were able to leave the house, they drove to Moscow to seek medical care for her and
to contact the police.
       The State charged Mr. Guess with two counts of aggravated assault, both felonies, and
one count of battery, a misdemeanor. Ultimately, he and the State entered into a written plea
agreement. The State agreed to file an amended information charging him with one count of
aggravated assault alleged to have been committed against both victims, to which he would plead
guilty. The State would recommend that he be sentenced to a withheld judgment and be placed
on probation for no more than five years, and he could withdraw his guilty plea if the district
court was unwilling to impose a sentence consistent with that recommendation. Mr. Guess pled
guilty to the charge, and on August 31, 2006, the court imposed a sentence consistent with the
written plea agreement, with the period of probation being five years.
       On March 24, 2009, Mr. Guess filed a motion asking to be released from probation, to be
permitted to withdraw his guilty plea, and to have the charge dismissed. In opposition to the
motion, the State filed a letter from Ms. Guess in which she described the crime, stated that he
had never apologized, and described the physical pain, flashbacks, and fear that she was still
experiencing from the crime. After hearing arguments on the motion and reviewing the court
file, the district court denied the motion without prejudice. On September 28, 2009, Mr. Guess
filed a motion to be transferred to unsupervised probation, which the court granted on January
27, 2011.
       On September 7, 2011, Mr. Guess filed another motion pursuant to Idaho Code section
19-2604(1) asking to withdraw his guilty plea and to have the charge dismissed. He supported
the motion with his affidavit and fourteen letters of support. The motion was argued to the court,
and Ms. Guess made a brief statement in which she said she was still in fear of Mr. Guess. The
court again denied the motion without prejudice. It stated that while Mr. Guess had performed as
well on probation as any defendant the court could remember, he had committed an abominable
crime and Ms. Guess was still in fear.




                                                2
           On January 19, 2012, Mr. Guess filed a motion to enforce the plea agreement, contending
that the agreement provided that he could withdraw his guilty plea and have the charge dismissed
if he successfully completed his probation. In the alternative, he again asked for relief pursuant
to Idaho Code section 19-2604(1). After hearing arguments of the parties, the district court
denied the motion. Mr. Guess then timely appealed.


                                                  II.
                    Did the District Court Err in Holding that the Plea Agreement
                           Did Not Require that Mr. Guess Was Entitled to
                     Withdraw His Guilty Plea and Have the Charge Dismissed?

           Mr. Guess contends that the terms of the plea agreement entitled him to withdraw his
guilty plea and to have the charge dismissed if he successfully completed his period of probation.
Neither the prosecutor nor the district court could agree to such a plea agreement, and neither of
them did.
           a. A plea agreement cannot include a provision that the defendant is entitled to
withdraw his or her plea of guilty and have the charge dismissed upon successful
completion of probation. A court does not have the inherent power to permit a defendant to
withdraw his or her guilty plea and have the charge dismissed upon successful completion of
probation. State v. Funk, 123 Idaho 967, 969, 855 P.2d 52, 54 (1993). The power of a court to
permit a defendant to withdraw his or her guilty plea and have the charge dismissed is controlled
by Idaho Code section 19-2604(1). When Mr. Guess and the prosecutor entered into the written
plea agreement on June 16, 2006, the relevant portion of that statute provided:
                   If sentence has been imposed but suspended, or if sentence has been
           withheld, upon application of the defendant and upon satisfactory showing that
           the defendant has at all times complied with the terms and conditions upon which
           he was placed on probation, the court may, if convinced by the showing made that
           there is no longer cause for continuing the period of probation, and if it be
           compatible with the public interest, terminate the sentence or set aside the plea of
           guilty or conviction of the defendant, and finally dismiss the case and discharge
           the defendant . . . .

Ch. 305, § 1, 1989 Idaho Sess. Laws 759, 759. 1



1
    The statute has since been amended, but none of the amendments altered the provisions applicable in this case.



                                                           3
         In order for a defendant to be permitted to withdraw his or her guilty plea: (a) the
defendant must have at all times complied with the terms and conditions of probation; (b) the
court must be convinced, by the showing made, that there is no longer cause for continuing the
period of probation; (c) the court must find that such relief is compatible with the public interest;
and (d) the court, in its discretion, must decide to grant such relief. 2 Complying with the terms
and conditions of probation is only one of the four requirements for obtaining relief under the
statute. The prosecutor did not have the authority to enter into a plea agreement that would
eliminate two of the three required findings that the district court must make when presented
with a motion pursuant to section 19-2604 and that would eliminate the court’s right to exercise
its discretion in ruling on that motion. Likewise, the district court would not have had the
authority to agree in advance that Mr. Guess could withdraw his guilty plea and have the charge
dismissed if he complied with the terms and conditions of probation because the other required
findings could only be made at the time the court was presented with the motion. Any such
agreement would have been void. Funk, 123 Idaho at 969, 855 P.2d at 54 (when placing a
defendant on probation, the sentencing court did not have the authority to promise that the
defendant could withdraw his guilty plea upon successful completion of probation where such
promise did not comply with section 19-2604(2), and such promise was unenforceable); State v.
Branson, 128 Idaho 790, 793, 919 P.2d 319, 322 (1996) (granting a withheld judgment in
violation of a statutory prohibition is an illegal sentence).
         b. Neither the prosecutor nor the district court agreed that Mr. Guess would be
permitted to withdraw his guilty plea and have the charge dismissed if he complied with all
of the terms and conditions of his probation. The prosecutor and Mr. Guess entered into a
written plea agreement.           Plea agreements are essentially bilateral contracts between the
prosecutor and the defendant. State v. Gomez, 153 Idaho 253, ___, 281 P.3d 90, 93 (2012). “If


2
  The statute stated that “the court may” grant the relief if the other specified conditions are met. “This Court has
interpreted the meaning of the word ‘may’ appearing in legislation, as having the meaning or expressing the right to
exercise discretion.” Rife v. Long, 127 Idaho 841, 848, 908 P.2d 143, 150 (1995). Thus, in State v. Hardwick, 150
Idaho 580, 249 P.3d 379 (2011), this Court stated:

        The trial court had the discretion to [allow the defendant to withdraw his or her guilty plea and
        have the case dismissed] if Defendant had “at all times complied with the terms and conditions
        upon which he was placed on probation” and the trial court found that “there was no longer cause
        for continuing the period of probation” and doing so was “compatible with the public interest.”

Id. at 581, 249 P.3d at 380 (emphasis added).

                                                         4
the language of the document is unambiguous, given its ordinary and well-understood meaning,
we will not look beyond the four corners of the agreement to determine the intent of the parties.”
Id. at ___, 281 P.3d at 94. The written plea agreement is unambiguous. It does not contain any
provision purporting to provide that Mr. Guess was entitled to the relief he requested if he
successfully completed his probation. The material provisions of the plea agreement are as
follows:
               2. That the State and the Defendant agree that the appropriate disposition
       of this matter is as follows:
                       That the Defendant shall receive a Withheld Judgment and shall be
               placed on probation to the Idaho State Department of Corrections for a
               period of no more than five (5) years. Terms of the Defendant’s probation
               shall include:
                       A. That the Defendant shall pay a fine in the amount of $1,000.00;
                       B. That the Defendant shall serve thirty (30) days local jail;

                3. That any other terms of sentencing and conditions of probation,
       including (but not limited to) the length of probation and the amount of
       restitution, are not the subject of this agreement, and both parties are free to make
       what recommendations they believe to be appropriate.
                ....
                6. This plea agreement is based upon the facts and circumstances as they
       exist at the date of the signing of this agreement. The defendant acknowledges,
       covenants and agrees that during the period of time between the date of this
       agreement and the date of sentencing, he will not violate any law nor fail to
       comply with any conditions of his release on bond or other conditions ordered by
       the Court, and shall cooperate fully with any presentence investigation ordered
       herein. Should the defendant in any way breach these agreements and covenants,
       the State is released from any obligations hereunder regarding an appropriate
       sentencing disposition, the Court may sentence the defendant up to the maximum
       authorized by law and the defendant shall not be afforded the opportunity to
       withdraw his plea of guilty. The defendant expressly agrees that the burden of
       proof for determining whether the defendant has breached any of said agreements
       or covenants shall be a preponderance of the evidence only.
                7. This is the entire agreement and understanding between the parties.

       There is nothing in the written plea agreement that addresses whether Mr. Guess would
be entitled to relief under Idaho Code section 19-2604(1). During oral argument, Mr. Guess
pointed to paragraph 6 of the agreement, but that says nothing about relief under section 19-
2604. Paragraph 6 only applies to his conduct “during the period of time between the date of this
agreement and the date of sentencing.” It provides that if, during that period, he violates any law
or fails to comply with the conditions of his release or other conditions ordered by the court, then

                                                 5
the district court could sentence him to the maximum permitted by law “and defendant shall not
be afforded the opportunity to withdraw his plea of guilty.” That obviously refers to an attempt
to withdraw his guilty plea before sentencing because he had violated the law or the applicable
conditions and the agreed-upon sentence was no longer applicable.
       Mr. Guess argues that during the colloquy between him and the district court before he
pled guilty, he expressed his belief that he would be entitled to have his guilty plea withdrawn if
he complied with the terms of his probation and the prosecutor did not disagree. He contends
that such silence resulted in a modification of the plea agreement.
       Prior to accepting Mr. Guess’s plea of guilty, the district court asked him questions to
determine whether he was knowingly, intelligently, and voluntarily pleading guilty. During that
dialogue, the court asked Mr. Guess whether he understood what a withheld judgment was. The
dialogue was as follows:
       The Court: Do you know what a “withheld judgment” means?
       Mr. Guess: Yes.
       The Court: Why don’t you explain to me what you’re understanding is.
       Mr. Guess: Well, I mean that—I guess, I’d explain that—my understanding of
       the entire agreement is that I—that I am pleading guilty to this charge and that I
       will spend—my punishment will include 30 days in incarceration in the Latah
       County jail. I will pay a $1,000 fine. And I’m pleading guilty to one of the—one
       of the felony charges. I’ll have a year period of probation, and if I fulfill the
       period of probation without any problems in that period of time, that the felony
       charges would—would be dropped.
       Mr. Guess’s Attorney: Judge, if I might?
       The Court: Yes
       Mr. Guess’s Attorney: I may have misunderstood my client. Or I thought—I
       understood him to say that he—he thought that he would have a year period of
       probation. And I—I now understand him to have said that he understands that he
       will have a period of probation and he knows that will be determined by the
       Court.
       Mr. Guess: Okay.
       The Court: Well, Mr. Guess, the—I think you understand what a withheld
       judgment means. It means that if you comply with your terms and conditions of
       probation that at the conclusion of the period of probation, which is for a period of
       no more than five years, according to the agreement, that you could come in and
       petition to have your guilty plea, which you tendered today, withdrawn and the
       charge against you dismissed. Do you understand that?
       Mr. Guess: I do, yes.

       The court’s statement as to what a withheld judgment means was accurate. If Mr. Guess
complied with the terms and conditions of his probation, he could come in and petition to

                                                 6
withdraw his guilty plea and have the charge dismissed. Mr. Guess argues that after he stated
what he thought a withheld judgment was, the district court said, “I think you understand what a
withheld judgment means.” Mr. Guess contends that this shows that the court agreed with his
understanding. However, the court then correctly stated what a withheld judgment is and asked
Mr. Guess whether he understood that, to which he replied, “I do, yes.” In its statement, the
court stated that Mr. Guess could petition to have his guilty plea set aside, not that he would be
entitled to have it set aside. Because the court’s statement was accurate, there was nothing to
which the prosecutor should have objected. Therefore, the alleged failure to object cannot
constitute an agreement to amend the written plea agreement. The colloquy does not show either
an oral amendment of the written plea agreement or a promise by the district court to allow Mr.
Guess to withdraw his plea of guilty and have the charge dismissed if he complied with all terms
and conditions of his probation.

                                           III.
    Did The District Court’s Refusal to Permit Mr. Guess to Withdraw His Guilty Plea
          Indefinitely Extend His Period of Probation or Violate Due Process?

       The district court placed Mr. Guess on probation for a period of five years. He argues
that by refusing to permit him to withdraw his plea of guilty and have the charge dismissed, the
court has extended probation indefinitely beyond the maximum period set forth in the plea
agreement. That argument is simply incorrect. A sentencing court cannot indefinitely withhold
judgment in a criminal case. Ex parte Grove, 43 Idaho 775, 779, 254 P. 519, 520 (1927). Idaho
Code section 19-2601(3) (Supp. 2012) states that a sentencing court may “[w]ithhold judgment
on such terms and for such time as it may prescribe and may place the defendant on probation.”
(Emphasis added.) Here, the district court’s order stated that “it is ORDERED THAT THE
ENTRY OF JUDGMENT BE WITHHELD and that the defendant be placed on PROBATION to
the Idaho State Board of Correction FOR A PERIOD OF FIVE (5) YEARS COMMENCING
AUGUST 31, 2006.” Thus, judgment was withheld and Mr. Guess was on probation for five
years. His period of probation was not extended by the denial of his motion. Once Mr. Guess
completed the five years of probation, his probation terminated.
       Mr. Guess also argues that the failure to permit him to withdraw his plea of guilty and
have the charge dismissed violates his right to due process because he was induced to plead
guilty pursuant to the understanding that he would be permitted to withdraw his plea of guilty

                                                7
and have the charge dismissed if he complied with the terms and conditions of probation. In
support of his motion, he stated:
               Had I known before I executed the Rule 11 Plea Agreement that after I
        completed the terms and conditions required under the Rule 11 Plea Agreement
        and the Order Withholding Judgment that I would not have the right to set aside
        my guilty plea, have this action dismissed and have my civil rights restored, I
        would never had executed the Rule 11 Plea Agreement or pled guilty to any of the
        charges against me. I would have proceeded to trial.

        The issue on appeal is not whether Mr. Guess should have been permitted to withdraw his
plea of guilty on the ground that he did not knowingly or intelligently plead guilty. Likewise, it
is not whether his attorney was ineffective in failing to properly advise him that the relief he now
seeks could be denied even if he complied with all terms and conditions of his probation. The
issue is whether the dialogue when he pled guilty modified the terms of the written plea
agreement. It did not do so, nor could it have done so.


                                               IV.
                 Did the District Court Abuse Its Discretion in Refusing to Grant
                                  Mr. Guess’s Requested Relief?

        As stated above, in order for a defendant to be permitted to withdraw his or her guilty
plea: (a) the defendant must have at all times complied with the terms and conditions of
probation; (b) the court must be convinced, by the showing made, that there is no longer cause
for continuing the period of probation; (c) the court must find that such relief is compatible with
the public interest; and (d) the court, in its discretion, must decide to grant such relief. In its
written decision denying Mr. Guess’s motion, the district court wrote that “the Court is
convinced that there is no longer cause for continuing probation” and “Guess has fully complied
with every court-imposed term and condition of his probation.” 3


3
  When Mr. Guess filed his motion on January 19, 2012, his five-year period of probation had already expired. The
requirement that the court must find that there is no longer good cause for continuing probation would indicate that
the motion must be made before the period of probation has expired. After Mr. Guess’s probation had expired, the
court lacked the power to continue his probation. The requirement that the court must find that there is no longer
good cause for continuing probation would be meaningless unless the court had the power to have it continue.
When construing a statute “[w]e must give effect to every word, clause and sentence of a statute, and the
construction of a statute should be adopted which does not deprive provisions of the statute of their meaning.”
Athay v. Stacey, 142 Idaho 360, 365, 128 P.3d 897, 902 (2005).
         In 1915, the Idaho legislature enacted a statute providing for a suspended sentence or a withheld judgment,
except for specified crimes, if the defendant was under twenty-five years of age, was previously of good character,

                                                         8
and had never before been convicted of a felony. Ch. 104, § 1, 1915 Idaho Sess. Laws 244, 244-45. That statute
included a provision stating:

                  At the end of the longest period for which the defendant might have been originally
         sentenced by the court, if the defendant has abided by the terms and conditions of his probation,
         and the judgment of the court has not been executed an order shall be entered for the defendant’s
         discharge.

Id. at 245. In 1918, the 1915 law was separated into seven separate statutes. Comp. Laws of Idaho §§ 7997 – 8003
(1918). The above-quoted provision of the 1915 law was codified as section 8002 and was entitled “Final discharge
of parole.” In 1919, section 8002 was amended, and it became the precursor of section 19-2604. The amendment
added, among others, the provision that the case could be dismissed if the defendant complied with the terms and
conditions of probation and there is no longer cause for continuing the period of probation. The statute as amended
provided:

                  After the expiration of a period of time equivalent to the minimum sentence imposed by
         the court, if sentence has been imposed but suspended, or equivalent to the minimum sentence
         prescribed by statute for the offense in qu[e]stion, if sentence has been withheld, upon application
         of the of the [sic] defendant and upon satisfactory showing that the defendant has at all times
         complied with the terms and conditions upon which he was placed upon probation, the court may,
         if convinced by the showing made that there is no longer cause for continuing the period of
         probation, finally dismiss the case and discharge the defendant; and this shall apply to the cases in
         which defendants have been convicted and paroled by the court before this law goes into effect, as
         well as to cases which arise thereafter. In any event at the end of the longest period for which the
         defendant might have been originally sentenced by the court, if the defendant has abided by the
         terms and conditions of his probation, and the judgment of the court has not been executed, an
         order shall be entered for the defendant’s discharge. The final dismissal of the case as herein
         provided shall have the effect of restoring the defendant to his civil rights.

Ch. 134, § 2, 1919 Idaho Sess. Laws 428, 429. (Emphasis added). The statute did not require that the defendant
complete the term of probation in order to have the charge dismissed, unless the term of probation was shorter than
the minimum sentence prescribed by statute for the crime. In 1948, the statute was codified as Idaho Code section
19-2604. In 1951, it was amended to delete the time restrictions for seeking relief under it and to add the
requirement that relief be compatible with the public interest. The amendment also deleted the provision that the
defendant could obtain a “discharge” at the end of the longest period for which he or she might have been originally
sentenced by the court. As amended, section 19-2604 provided as follows:

                   If sentence has been imposed but suspended, or if sentence has been withheld, upon
         application of the defendant and upon satisfactory showing that the defendant has at all times
         complied with the terms and conditions upon which he was placed on probation, the court may, if
         convinced by the showing made that there is no longer cause for continuing the period of
         probation, and if it be compatible with the public interest, either upon motion of the prosecuting
         attorney or of its own motion, terminate the sentence or set aside the plea of guilty or conviction of
         the defendant, and finally dismiss the case and discharge the defendant; and this shall apply to the
         cases in which defendants have been convicted and paroled by the court before this law goes into
         effect, as well as to cases which arise thereafter. The final dismissal of the case as herein provided
         shall have the effect of restoring the defendant to his civil rights.

Ch. 99, § 1, 1951 Idaho Sess. Laws 224, 224. In 1970, the legislature removed the requirement that the motion for
relief under the statute had to be on motion of the prosecuting attorney or the court’s own motion. Ch. 143, § 4,
1970 Idaho Sess. Laws 425, 429-30.
         The issue of whether relief under the statute is available after the period of probation has expired has never
been raised to us, and therefore we have not addressed the issue. Neither party has raised it in this case, and so we
do not address it here. We note that this year the legislature amended section 19-2604 to expressly provide for relief

                                                           9
        The court then combined its discussion of whether the relief was compatible with the
public interest and whether the court would exercise its discretion to grant the relief. In the
section of its opinion addressing whether the requested relief would be incompatible with the
public interest, the court stated, “The statute therefore authorizes the court to grant relief where:
(1) the defendant had no adjudicated probation violation and (2) it is compatible with the public
interest. The decision of whether to grant relief pursuant to I.C. § 19-2604(1) is a matter within
the sound discretion of the district court.”
        The requested relief need not advance or promote the public interest in order for it to be
compatible with the public interest. It just cannot be contrary to or inconsistent with the public
interest. In addition, the focus must be on the public interest, not upon a private interest. State v.
Dieter, 153 Idaho 730, ___, 291 P.3d 413, 417-18 (2012).
        In addressing the issue of the public interest, the court noted that Ms. Guess still fears Mr.
Guess. The court then stated: “The determination that Guess should be granted relief under I.C.
§ 19-2604(1) is not entirely dependent on [Ms. Guess’s] acquiescence. . . . Nonetheless, this
Court is unwilling to disregard her fear of the Defendant and her objection to him being granted
relief pursuant to I.C. § 19-2604(1), at this time.” The court did not discuss a public interest.
However, its statement that it was unwilling to disregard Ms. Guess’s fear at this time indicates
that the court’s decision was ultimately based upon the exercise of its discretion.
        “A trial court does not abuse its discretion if it (1) recognizes the issue as one of
discretion, (2) acts within the boundaries of its discretion and applies the applicable legal
standards, and (3) reaches the decision through an exercise of reason.” Johannsen v. Utterbeck,
146 Idaho 423, 429, 196 P.3d 341, 347 (2008). In this case, the district court recognized that it
had discretion as to whether or not to grant Mr. Guess his requested relief. The court acted
within the boundaries of that discretion. Although there are applicable legal standards that must
be met before the relief could be granted, a defendant is not entitled to the relief even if those
standards are met. When those standards are met, the court still has the discretion to deny the
relief. In her earlier victim statement, Ms. Guess linked her fear, in part, to Mr. Guess regaining
the right to lawfully possess firearms. In taking into account the victim’s continued fear, the



after the period of probation has expired, although the relief granted is only the reduction of a felony to a
misdemeanor. Ch. 256, § 1, Senate Bill No. 1151 (effective July 1, 2013).



                                                     10
court reached its decision through an exercise of reason. Mr. Guess has failed to show that the
district court abused its discretion in denying the motion to permit him to withdraw his plea of
guilty and have the charge dismissed.


                                               V.
                                           Conclusion.

       We affirm the order of the district court.


       Chief Justice BURDICK, and Justices J. JONES, W. JONES and HORTON CONCUR.




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