               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 37866

STATE OF IDAHO,                                  )     2011 Unpublished Opinion No. 727
                                                 )
       Plaintiff-Respondent,                     )     Filed: December 1, 2011
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
STEVEN G. FAITH,                                 )     THIS IS AN UNPUBLISHED
                                                 )     OPINION AND SHALL NOT
       Defendant-Appellant.                      )     BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Shoshone County. Hon. Fred M. Gibler, District Judge.

       Judgment of conviction for possession of a controlled substance and being a
       persistent violator, affirmed.

       Molly J. Huskey, State Appellate Public Defender; Diane M. Walker, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Judge
       Steven G. Faith appeals from his judgment of conviction for possession of
methamphetamine and being a persistent violator, contending the district court erred in denying
his motion to withdraw his guilty plea to the charges. We affirm.
                                                I.
                                 FACTS AND PROCEDURE
       Stemming from an incident in December 2009, Faith was charged in Shoshone County
with possession of methamphetamine, destruction of evidence, misdemeanor resisting arrest,
driving without privileges, and being a persistent violator. In April 2010, Faith’s elderly mother
had a heart attack, and Faith motioned to be released because his mother was “dying.” At the
April 22 hearing on the motion, held in conjunction with the change of plea hearing, both Faith
and another witness testified as to Faith’s mother’s health problems and Faith discussed his
desire to be released and tend to his mother. Also discussed at the hearing was Faith’s extensive

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criminal record and an incident where he physically resisted law enforcement officers. Faith’s
probation officer testified the Department of Correction opposed releasing Faith due to its belief
that he was a “serious flight risk” and at high risk to reoffend.   Because a probation violation
was also pending against Faith in Kootenai County, a Kootenai County prosecutor was present at
the hearing and expressed his opposition to Faith being released due to Faith’s criminal history
and public safety concerns.
       The Shoshone County prosecutor and defense counsel indicated they contemplated a plea
agreement wherein Faith would plead guilty to the possession of methamphetamine charge, be
released on his own recognizance pending sentencing in order to care for his mother, and the
remaining charges would be dismissed at sentencing if he complied with the conditions of his
release. After the district court noted the conflict between the two counties, the following
exchange occurred:
       [The Court]:       One thing I was curious about was what the actual plea was
                          going to be. [Defense counsel] had made the statement that
                          he has the other charges hanging over his head if he violates
                          the terms of his release. Well, now, that’s really not correct
                          because there would be no plea to the other charges.
                                It seems to me that there is a basis for a release here,
                          but I would like to see it in such--in a case where he does
                          have more than just--
       [Defense counsel]: Judge, Mr. Faith is willing to plead to all the charges.
       [The Court]:       I wasn’t going to suggest that. I was just going to suggest to
                          Count I, Part 2, the habitual offender.
       [Defense counsel]: He is willing to do that--
       [The Court]:       All right.
       [Defense counsel:] --under the condition that it would be dismissed at
                          sentencing.
       [The Court]:       Dismissed if he complies with all conditions of release. All
                          right. In that event, then--
       [Defendant:]       So long as I do good when I come in and drop those off
                          there?
       [The Court]:       If you don’t violate the conditions of release.

There was then a break in the proceedings, after which the parties presented the court with a
written plea agreement, signed by Faith, wherein he agreed to plead guilty to the possession
charge and to being a persistent violator in exchange for (1) a certain sentencing
recommendation from the State, (2) release on his own recognizance prior to sentencing, and (3)
dismissal of the remaining counts and the persistent violator charge at sentencing if he fully

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complied with the conditions of his release. If there was a violation of the terms of the release,
the guilty plea as to both the possession charge and the persistent violator charge would remain
and he would be sentenced on those convictions.
        At this time, the court was informed that the probation office could not monitor Faith
with an electronic ankle bracelet, as previously stated, due to budget cuts. The court indicated
that while it wished it had the “additional safeguard” of a monitoring bracelet, it would still
release Faith because it was confident he would comply with the terms of his release given that
he was facing life imprisonment if he did not.       Faith confirmed his understanding of the
agreement as written, and the court again reiterated the consequences if Faith were to violate the
condition of his release pending sentencing:

        [The Court]:        You understand what I’m saying here about [the persistent
                            violator charge]. If you violate the terms of your release,
                            you’ll be back in here, and you can go to prison for life. Do
                            you understand that?
        [Defendant]:        Yes, sir.
        [The Court]:        And you also understand that, if you do violate those
                            conditions, I would not hesitate to do that.
        [Defendant]:        I would.

        Faith was released, but the very next day was placed back into custody for violating a
term of his release after he tested positive for methamphetamine. On June 3, a week prior to his
scheduled sentencing date, Faith filed a motion to withdraw his guilty plea to the persistent
violator charge. Following a hearing, the district court denied the motion and proceeded to
sentencing, imposing a unified sentence of fifteen years, with three years determinate. Faith
appeals.
                                               II.
                                          ANALYSIS
        Faith contends the district court abused its discretion in denying his pre-sentence motion
to withdraw his guilty plea.     Specifically, he asserts that he established a just reason for
withdrawal of the plea because he was “coerced” by the district court to plead guilty to being a
persistent violator.
        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


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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. When a trial court’s discretionary decision is reviewed
on appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower
court correctly perceived the issue as one of discretion; (2) whether the lower court acted within
the boundaries of such discretion and consistently with any legal standards applicable to the
specific choices before it; and (3) whether the lower court reached its decision by an exercise of
reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
       To withdraw a guilty plea prior to sentencing, the defendant must show a just reason for
withdrawing the plea. Idaho Criminal Rule 33(c); State v. Flowers, 150 Idaho 568, 571, 249
P.3d 367, 370 (2011). If he does so, the State may avoid the granting of the motion by showing
prejudice would result if the plea were withdrawn. Id. The defendant’s failure to present and
support a plausible reason will dictate against granting withdrawal, even absent prejudice to the
prosecution. State v. Dopp, 124 Idaho 481, 485, 861 P.2d 51, 55 (1993). Even when the motion
is presented before sentencing, if it occurs after the defendant has learned of the content of the
presentence investigation report or has received other information about the probable sentence,
the district court may temper its liberality by weighing the defendant’s apparent motive. State v.
Arthur, 145 Idaho 219, 222, 177 P.3d 966, 969 (2008); State v. Mayer, 139 Idaho 643, 647, 84
P.3d 579, 583 (Ct. App. 2004). The good faith, credibility, and weight of the defendant’s
assertions in support of his motion to withdraw his plea are matters for the trial court to decide.
State v. Hanslovan, 147 Idaho 530, 537, 211 P.3d 775, 782 (Ct. App. 2008).
       Faith contends the district court coerced him into pleading guilty to being a persistent
violator to secure release pending sentencing, making him feel “as if he had no other choice than
to accept the district court’s negotiated terms, even though, [sic] the State did not require the
additional plea from him.” 1 More specifically, he characterizes the district court’s role in the

1
        Typically, the first step in analyzing a motion to withdraw a guilty plea is to determine
whether the plea was knowingly, intelligently, and voluntarily made. State v. Hanslovan, 147
Idaho 530, 536, 211 P.3d 775, 781 (Ct. App. 2008). Only if the plea is constitutionally valid
must the court then determine whether there are any other just reasons for withdrawal of the plea.
Id. In this case, however, Faith does not contend the alleged “coercion” in this case rose to the
level of rendering his plea constitutionally infirm. Thus, we limit our analysis to whether it
constituted a “just reason” for withdrawal of the plea.


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change of plea hearing as becoming “involved in the negotiations and [telling] Mr. Faith that it
might be willing to release him but wanted to see a different plea negotiation.” He bases this
argument on his assertion that, at the commencement of the change of plea hearing, the State was
apparently willing to accept only a guilty plea to the possession of methamphetamine charge, but
he was “forced” to also plead guilty to the persistent violator charge when the district court
suggested Faith also plead guilty to being a persistent violator in order to have that sentencing
enhancement “hanging over his head” were he to violate the terms of his release.
       In denying Faith’s motion to withdraw his guilty plea, the court stated:
       [T]he idea that he was coerced into the plea is so far afield from the facts that,
       again, it--I’m not blaming you [defense counsel]. I know that’s your client’s
       position. But given the discussion I had with him at the time as to what the
       consequences would be of violating the terms of his release, and then he went
       ahead and entered the plea--I don’t see how there could be any claim of coercion.
               The coercion, if there was any, would have come from Mr. Faith. I mean,
       he was the one in here asking me to release him. He said, “Please release me.”
       And I said, “Okay. Here are the conditions.” That was not coercion by me or by
       the State or by anyone else. That was a condition of his release.

The court continued:

               The fact here is that the motion . . . is a discretionary call with me. The
       motion is being made before sentencing. However, it is being made after Mr.
       Faith has received information about the probable sentence, to wit . . . he knows,
       based upon his violation of the terms of release, that he could be facing up to life
       in prison for this offense. Therefore, the motive, I think, is quite apparent in his
       request. And that is a motive to simply avoid the consequences of his plea.

       Faith’s contention that the district court somehow “coerced” him into pleading guilty to
being a persistent violator is not well taken. To the contrary, Faith, who had an extensive and
serious criminal history, had recently violated his probation in Kootenai County and was facing
several serious charges in this case. He was requesting leniency from the district court in
releasing him pending sentencing in order to care for his ill mother. Both the Department of
Correction and Kootenai County prosecutor vigorously opposed the release, listing concerns
about public safety, officer safety, and their perception that Faith was a high risk to abscond
given his previous history. In light of this opposition and Faith’s history, it is not unreasonable
that the district court expressed some trepidation about releasing Faith without more serious
consequences “hanging over his head” in the form of a guilty plea to the persistent violator

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charge. In addition, the record clearly indicates the district court was far from forceful during
this exchange; the court had barely begun discussing the possibility of a guilty plea to the
persistent violator charge as a requirement for release when defense counsel jumped in and
expressed Faith’s willingness to plead guilty to all of the pending charges in exchange for
presentence release, a requirement the court indicated was not necessary. 2
        In addition, the record is clear that the district court reiterated the consequences of
pleading guilty to being a persistent violator numerous times and Faith repeatedly indicated his
understanding of the terms. At no point did Faith express anything other than a complete
willingness to accept the plea agreement as written.
        Finally, as the district court pointed out, the circumstances surrounding Faith’s motion to
withdraw his plea make it quite apparent that Faith’s motivation was the fact that he was now
facing a possible life sentence after violating the conditions of his release only one day after
being released. Where Faith had clear information as to the sentence that could be imposed (as
the district court had repeatedly warned him that a life sentence was a possibility at the time he
entered his guilty plea), it was certainly appropriate for the district court to temper its liberality in
applying the just reason standard. Arthur, 145 Idaho at 222, 177 P.3d at 969. Based on the
record on appeal, we cannot say the district court abused its discretion in concluding there was
no just reason for withdrawal of his plea and in denying the motion. Faith’s judgment of
conviction for possession of a controlled substance and being a persistent violator is affirmed.
        Judge LANSING and Judge MELANSON CONCUR.




2
       To the extent Faith is arguing that he was coerced into entering a guilty plea because it
was the only way for him to be released in order to take care of his mother, a similar argument
was rejected in State v. Nath, 141 Idaho 584, 114 P.3d 142 (Ct. App. 2005). There, we held that
Nath’s argument that he was coerced into pleading guilty because it was the only way for him to
be released to care for his mother and wife did not render his plea involuntary, because the
pressure stemmed from family circumstances and not from State action. Id. at 586, 114 P.3d at
144.

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