               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 47121

STATE OF IDAHO,                                )
                                               )    Filed: July 8, 2020
       Plaintiff-Respondent,                   )
                                               )    Melanie Gagnepain, Clerk
v.                                             )
                                               )    THIS IS AN UNPUBLISHED
ANTHONY JOSEPH ANAYA,                          )    OPINION AND SHALL NOT
                                               )    BE CITED AS AUTHORITY
       Defendant-Appellant.                    )
                                               )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. Roger B. Harris, District Judge.

       Judgment of conviction and aggregate sentence of twenty years, with a minimum
       period of confinement of ten years, for aggravated assault, enhanced for use of a
       deadly weapon; unlawful possession of a firearm; and criminal solicitation to
       commit a crime, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Ben P. McGreevy, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kacey L. Jones, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

LORELLO, Judge
       Anthony Joseph Anaya appeals from his judgment of conviction and aggregate sentence
of twenty years, with a minimum period of confinement of ten years, for aggravated assault,
enhanced for use of a deadly weapon; unlawful possession of a firearm; and criminal solicitation
to commit a crime. We affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       While armed with a handgun, Anaya, a convicted felon, drove to a residence looking for
an individual who allegedly owed Anaya money. The brother of the individual Anaya was



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looking for answered the door and told Anaya that the individual Anaya sought was not at the
residence. After refusing the brother’s command to leave, Anaya drew his handgun when the
brother reached for a cell phone. Anaya fled in his vehicle when he realized the brother had
called the police. Officers subsequently stopped Anaya and conducted a consent search of his
vehicle. A handgun was found under the vehicle’s hood and wrapped in a shirt.
       The State charged Anaya with unlawful possession of a firearm; two counts of
aggravated assault, each with a deadly weapon enhancement; and a persistent violator
enhancement. Pursuant to a plea agreement, Anaya pled guilty to aggravated assault, with a
deadly weapon enhancement (I.C. § 18-905); unlawful possession of a firearm (I.C. § 18-3316);
and solicitation to commit a crime (I.C. § 18-2001) for allegedly soliciting a friend to contact the
victims and deter them from testifying. Anaya also waived his appeal rights, including the right
to appeal matters involving his pleas or sentences. In exchange for Anaya’s guilty pleas, the
State agreed to recommend that any sentences imposed run concurrently. Prior to sentencing,
Anaya moved to withdraw his pleas, arguing that his pleas were coerced and that he was
unaware that he pled guilty to solicitation to commit a crime until after entry of his pleas. After a
hearing, the district court denied Anaya’s motion.
       Anaya was sentenced to a unified term of twenty years, with a minimum period of
confinement of ten years, for aggravated assault, enhanced for the use of a deadly weapon; a
determinate term of five years for unlawful possession of a firearm; and a determinate term of
five years for criminal solicitation to commit a crime. The district court ordered that Anaya’s
sentences be served concurrently. Anaya appeals.
                                                 II.
                                           ANALYSIS
       Anaya argues that the district court erred in denying his motion to withdraw his guilty
pleas and that his sentences are excessive. The State responds that Anaya waived the right to
appellate review of these issues as a term of his plea agreement and that his claims otherwise fail
on the merits. We hold that Anaya’s appeal waiver is enforceable, the district court did not err in
denying Anaya’s motion to withdraw his guilty pleas, and Anaya waived the right to appeal his
sentences.




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A.     Appeal Waiver
       Defendants may waive their right to appeal as a term of a plea agreement. State v.
Straub, 153 Idaho 882, 885, 292 P.3d 273, 276 (2012). A waiver of the right to appeal included
as a term of a plea agreement is enforceable if the record shows that it was voluntarily,
knowingly, and intelligently made. State v. Cope, 142 Idaho 492, 496, 129 P.3d 1241, 1245
(2006). Appellate courts employ the same analysis used to determine the validity of any guilty
plea when evaluating the enforceability of a waiver of the right to appeal provided as part of a
plea agreement. State v. Murphy, 125 Idaho 456, 457, 872 P.2d 719, 720 (1994). When the
validity of a guilty plea is challenged on appeal, we conduct an independent review of the record.
State v. Hawkins, 115 Idaho 719, 720, 769 P.2d 596, 597 (Ct. App. 1989). If the evidence is
conflicting as to the circumstances surrounding the plea, we will accept the trial court’s findings
of fact supported by substantial evidence. Id. at 720-21, 769 P.2d at 597-98. However, we will
freely review the trial court’s application of constitutional requirements to the facts found. Id. at
721, 769 P.2d at 598.
       Anaya’s written plea agreement contained the following term:
               By accepting this offer [Anaya] waives the right to . . . appeal any issues
       in this case, including all matters involving the plea or the sentence and any
       rulings made by the court, including all suppression issues.
Anaya does not argue that either issue he raises on appeal falls outside the scope of this waiver.
Rather, Anaya argues only that the waiver is invalid because his guilty pleas were not voluntary
and intelligent. Specifically, Anaya contends that he was pressured into pleading guilty by both
his counsel and the State and that he was unaware that he pled guilty to solicitation to commit a
crime until after the district court accepted his pleas.      Neither of Anaya’s arguments are
supported by the record.
       Prior to Anaya’s change of plea hearing, he completed a guilty plea advisory form.
Although Anaya initially answered “yes” to a question on that form asking whether his attorney
told him that he must accept the plea agreement, Anaya later changed his answer to “no.” Anaya
also marked “yes” to two questions asking whether anyone forced or coerced him in any way
into accepting the plea agreement and whether other promises had been made which influenced
his pleas. However, Anaya answered “yes” to a question asking whether he understood that no


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one, including his attorney, could force him to plead guilty.           Additionally, Anaya gave
affirmative answers to questions asking whether he read his plea agreement; whether it was
acceptable to him; whether he understood he was waiving his right to appeal his judgment of
conviction and sentences unless the district court were to exceed the State’s recommended
sentence; and whether he read the charges against him. At the end of the form, Anaya signed the
following statement:
              I have answered the questions on pages 1-10 of this Guilty Plea Advisory
       form truthfully, understand all of the questions and answers herein, have
       discussed each question and answer with my attorney, and have completed this
       form freely and voluntarily WITH A COMPLETE UNDERSTANDING OF
       THE CHARGE(S) TO WHICH I AM PLEADING GUILTY AND WITH
       KNOWLEDGE OF THE POTENTIAL CONSEQUENCES OF THIS PLEA.
       Furthermore, no one has forced me or threatened me to plead guilty.
       During the change of plea hearing, the district court questioned Anaya under oath about
his decision to plead guilty. Anaya again affirmed that he read the plea agreement and the
amended information; that he received sufficient time to confer with his attorney; and that he
understood the decision to plead guilty was his alone. The district court then recited the terms of
the plea agreement--including that Anaya would plead guilty to aggravated assault with a deadly
weapon enhancement, unlawful possession of a firearm, and solicitation to commit a crime. The
district court also questioned Anaya about the guilty plea advisory form. Anaya affirmed that he
reviewed the form with his attorney, that he understood the questions on the form, and that he
answered the questions therein. Finally, Anaya also affirmed that no one had promised him
anything in exchange for his pleas other than what was in his plea agreement and that he was
voluntarily pleading guilty. Anaya then admitted to a factual basis for each of the three charges
contained in the amended information and pled guilty to each charge, and the district court
accepted his pleas.
       Anaya’s challenge to the voluntariness of his guilty pleas and appeal waiver arises from
“pressure” he allegedly felt in having to decide whether to plead guilty to eliminate the potential
of a persistent violator enhancement. During the hearing on Anaya’s motion to withdraw his
guilty pleas, Anaya testified that he felt pressure because, if he did not “say the right things,” he
would not get the deal the prosecution was offering and that he pled guilty to “get it over with.”
However, Anaya also conceded that, when he asserted that his counsel said Anaya must accept


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the plea agreement, he meant he was told he had to accept the plea agreement to avoid the
potential of a persistent violator enhancement.
         A plea of guilty is deemed coerced only where it is improperly induced by ignorance, fear
or fraud. State v. Hanslovan, 147 Idaho 530, 537, 211 P.3d 775, 782 (Ct. App. 2008). Fear and
anxiety arising from legitimate charges do not necessarily amount to unconstitutional coercion.
See State v. Storm, 123 Idaho 228, 231, 846 P.2d 230, 233 (Ct. App. 1993). Defendants with
competent counsel and protected by procedural safeguards are presumed capable of intelligent
choice despite such prosecutorial persuasion. Id. Anaya does not argue, nor has he shown, that
he lacked competent counsel or that procedural safeguards were violated.             Thus, Anaya’s
argument that his fear of a persistent violator enhancement rendered his guilty pleas involuntary
fails.
         Anaya’s argument that his appeal waiver was unintelligent because he was unaware that
he was pleading guilty to solicitation to commit a crime similarly fails. As outlined above, the
district court reviewed the charges against Anaya and the terms of his plea agreement during the
change of plea hearing. Anaya affirmed under oath that he was pleading guilty to aggravated
assault, with a deadly weapon enhancement; unlawful possession of a firearm; and solicitation to
commit a crime. Anaya then admitted to a factual basis for and pled guilty to each crime. At no
point during the change of plea hearing did Anaya express surprise at being questioned about the
solicitation charge. Consequently, the district court did not err in concluding that Anaya was
aware he was pleading guilty to the solicitation charge and that his guilty plea was intelligent.
         In sum, the record shows that Anaya voluntarily and intelligently pled guilty pursuant to
the terms of the plea agreement, which included that Anaya waived his right to “appeal any
issues in this case, including all matters involving the plea or the sentence.” Because Anaya does
not challenge the application of the appeal waiver on any other grounds, the waiver is
enforceable.
B.       Motion to Withdraw Guilty Pleas
         Although we hold that Anaya’s appeal waiver is enforceable, it is not clear that the
waiver bars his challenge to the denial of his motion to withdraw his guilty pleas. Some courts
hold that an appeal waiver can bar appeals from the denial of a motion to withdraw a guilty plea.
See United States v. McGuire, 796 F.3d 712, 715 (7th Cir. 2015); United States v. Salas-Garcia,


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698 F.3d 1242, 1255 (10th Cir. 2012). This Court, however, has previously held that an appeal
waiver does not bar an appeal that, if decided in the appellant’s favor, would render the waiver
unenforceable. See State v. Allen, 143 Idaho 267, 270, 141 P.3d 1136, 1139 (Ct. App. 2006).
Anaya moved to withdraw his guilty pleas based upon the argument that the pleas were
constitutionally invalid. Anaya raises the same argument to challenge the denial of his motion to
withdraw. This challenge, if successful, would invalidate his guilty pleas as well as Anaya’s
appeal waiver as a component of those pleas. See United States v. Ramos-Mejia, 721 F.3d 12, 14
(1st Cir. 2013) (reviewing claim under plain error standard that guilty plea was not knowing,
intelligent, or voluntary because a waiver of appeal provision evaporates where the plea is
invalid); cf. Allen, 143 Idaho at 270, 141 P.3d at 1139 (observing that a breach of a plea
agreement by the State would render an appeal waiver given as part of a plea agreement
unenforceable). Assuming without deciding that Anaya’s appeal waiver does not bar an appeal
from the denial of his motion to withdraw his guilty pleas, we hold that the district court did not
err in denying the motion.
       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
limited to determining whether the district court exercised sound judicial discretion as
distinguished from arbitrary action. Id. The denial of a motion to withdraw a guilty plea after
the plea is accepted but before sentencing is not an abuse of discretion when the defendant fails
to show just reason to permit the withdrawal. See State v. Sunseri, 165 Idaho 9, 13, 437 P.3d 9,
13 (2018). A defendant who establishes that his or her plea was not knowing, voluntary, and
intelligent also establishes just reason for withdrawal of that plea as a matter of law. State v.
Stone, 147 Idaho 330, 333, 208 P.3d 734, 737 (Ct. App. 2009).
       The district court denied Anaya’s motion to withdraw his guilty pleas, concluding that
Anaya failed to establish a just reason to permit withdrawal. Anaya argues that this was error for
the same reasons that he argues his appellate waiver is unenforceable--specifically, that his pleas
were coerced by pressure from his counsel and the State and that Anaya was unaware he pled
guilty to solicitation to commit a crime until after entry of his pleas. These arguments fail as to
Anaya’s challenge to the denial of his motion to withdraw guilty pleas for the same reasons they


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fail as to his challenge to the enforceability of his appeal waiver. Consequently, Anaya has
failed to show that the district court erred in denying his motion to withdraw his guilty pleas.
C.     Sentence Reviews
       Anaya argues that the district court imposed excessive sentences by failing to properly
consider certain mitigating factors. Anaya’s challenge to the reasonableness of his sentences
falls within the scope of his appeal waiver, which precludes appeals of all matters involving his
sentences. As set forth above, Anaya’s appeal waiver is valid and enforceable. Consequently,
we hold that Anaya’s challenge to his sentences has been waived by his plea agreement. See
I.C.R. 11(f)(1); State v. Rodriguez, 142 Idaho 786, 787, 133 P.3d 1251, 1252 (Ct. App. 2006).
Accordingly, we will not address the merits of Anaya’s sentencing claim.
                                                III.
                                         CONCLUSION
       The record reflects that Anaya’s appeal waiver was a component of the voluntary and
intelligent guilty pleas he entered pursuant to a plea agreement.          Consequently, Anaya’s
challenge to the enforceability of the waiver fails. Even if Anaya’s appeal waiver does not bar
his challenge to the denial of his motion to withdraw his guilty pleas, the record shows that
Anaya entered voluntary and intelligent guilty pleas and, therefore, his challenge to the denial of
his motion to withdraw his guilty pleas fails.          Additionally, Anaya’s challenge to the
reasonableness of his sentences is barred by his appeal waiver. Accordingly, Anaya’s judgment
of conviction and aggregate sentence of twenty years, with a minimum period of confinement of
ten years, for aggravated assault, enhanced for use of a deadly weapon; unlawful possession of a
firearm; and criminal solicitation to commit a crime are affirmed.
       Chief Judge HUSKEY and Judge BRAILSFORD, CONCUR.




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