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                                                  Electronically Filed
                                                  Intermediate Court of Appeals
                                                  CAAP-XX-XXXXXXX
                                                  24-AUG-2020
                                                  08:08 AM



                           NO. CAAP-XX-XXXXXXX

                 IN THE INTERMEDIATE COURT OF APPEALS

                         OF THE STATE OF HAWAI#I


               STATE OF HAWAI#I, Plaintiff-Appellee, v.
                   THEO PEDRO, Defendant-Appellant

          APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
                     (CASE NO. 2FFC-XX-XXXXXXX(4))


                       SUMMARY DISPOSITION ORDER
          (By: Ginoza, C.J., and Leonard and Wadsworth, JJ.)

            Defendant-Appellant Theo Pedro (Pedro) appeals from the
Judgment; Conviction and Sentence; Notice of Entry (Judgment),
entered on May 15, 2019, in the Family Court of the Second
Circuit (Family Court).1/ After pleading no contest, Pedro was
convicted of four counts of Sexual Assault in the Second Degree,
in violation of Hawaii Revised Statutes (HRS) § 707-730(1)(a)
(2014),2/ and sentenced to ten years of imprisonment on each
count, to be served concurrently, with credit for time served.
           Prior to sentencing, Pedro filed a motion to withdraw
his no contest plea. The Circuit Court heard the motion and
orally denied it on May 10, 2019. The Circuit Court entered its



     1/
            The Honorable Richard T. Bissen, Jr. presided.
     2/
            HRS § 707-730(1)(a) provides:

            (1) A person commits the offense of sexual assault in the second
            degree if:

                  (a)   The person knowingly subjects another person to
                        an act of sexual penetration by strong
                        compulsion[.]
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written "Findings of Fact, Conclusions of Law, and Order Denying
Defendant's Motion to Withdraw No Contest Plea" on June 18, 2019.
          On appeal, Pedro contends that the Circuit Court abused
its discretion in: (1) denying Pedro's motion to withdraw his no
contest plea prior to sentencing; and (2) sentencing Pedro to the
"open" ten-year term of imprisonment. In connection with his
first point of error, Pedro challenges the Circuit Court's
Findings of Fact (FOF) Nos. 2, 4, 5, and 6, and Conclusions of
Law (COL) Nos. 12 and 13.
          Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, as
well as the relevant statutory and case law, we resolve Pedro's
contentions as follows.
           (1) "Hawai#i law regarding plea withdrawals is governed
by [Hawai#i Rules of Penal Procedure (HRPP)] Rule 32(d) (2012)
and case law construing the rule." State v. Sanney, 141 Hawai#i
14, 24, 404 P.3d 280, 290 (2017). HRPP Rule 32(d) provides, in
relevant part:
                (d) Withdrawal of Plea. A motion to withdraw a plea
          of guilty or of nolo contendere may be made before sentence
          is imposed or imposition of sentence is suspended; provided
          that, to correct manifest injustice the court, upon a
          party's motion submitted no later than ten (10) days after
          imposition of sentence, shall set aside the judgment of
          conviction and permit the defendant to withdraw the plea.

          Under Rule 32(d), a defendant does not have an absolute
right to withdraw his plea of guilty or no contest. See State v.
Krstoth, 138 Hawai#i 268, 274, 378 P.3d 984, 990 (2016); State v.
Smith, 61 Haw. 522, 523, 606 P.2d 86, 88 (1980). However, "a
liberal approach is to be taken when a motion to withdraw a plea
is made under [Rule] 32(d) before sentence is imposed." State v.
Nguyen, 81 Hawai#i 279, 286, 916 P.2d 689, 696 (1996) (quoting
State v. Adams, 76 Hawai#i 408, 411, 879 P.2d 513, 516 (1994)).
          The court should grant such a motion before sentencing
"if the defendant has presented a fair and just reason for his
[or her] request and the State has not relied upon the plea to
its substantial prejudice[.]" State v. Gomes, 79 Hawai#i 32, 36,
897 P.2d 959, 963 (1995) (quoting Adams, 76 Hawai#i at 411, 879
P.2d at 516); see also State v. Guity, 144 Hawai#i 557, 561, 445

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P.3d 138, 142 (2019) ("After entry of a plea of guilty or [no
contest] and before sentence, the court should allow the
defendant to withdraw the plea for any fair and just reason."
(quoting Sanney, 141 Hawai#i at 22, 404 P.3d at 288)). There
are, in turn, "two fundamental bases of demonstrating 'fair and
just reasons' for granting withdrawal of a plea: (1) the
defendant did not knowingly, intelligently or voluntarily waive
his or her rights; or (2) changed circumstances or new
information justify withdrawal of the plea."3/ Gomes, 79 Hawai#i
at 37, 897 P.2d at 964 (citing State v. Jim, 58 Haw. 574, 574
P.2d 521 (1978)). Under either of the Gomes bases, "[t]he
defendant has the burden of establishing plausible and legitimate
grounds for the withdrawal." Id. at 36, 897 P.2d at 963 (quoting
State v. Costa, 64 Haw. 564, 565, 644 P.2d 1329, 1331 (1982)).
          When a trial court denies a motion to withdraw a plea,
"the trial court's determination will not be disturbed on appeal
unless abuse of discretion is clearly shown." Nguyen, 81 Hawai#i
at 286, 916 P.2d at 696 (citing Smith, 61 Haw. at 523, 606 P.2d
at 88). "The burden of establishing abuse of discretion is on
appellant and a strong showing is required to establish it." Id.
at 286, 916 P.2d at 696 (quoting State v. Faulkner, 1 Haw. App.
651, 654, 624 P.2d 940, 943 (1981)). An abuse of discretion
occurs "only if the trial court has clearly exceeded the bounds
of reason or disregarded rules or principles of law or practice
to the substantial detriment of a party litigant." Id. at 286-
87, 916 P.2d at 696-97 (citing State v. Merino, 81 Hawai#i 198,
211, 915 P.2d 672, 685 (1996)).
          Pedro contends that he met his burden to withdraw his
no contest plea because "the record supports [his] version of
events," which is that "he did not understand his charges, he did
not receive his copy of the discovery until post change of plea
and there was an alleged complaining witness recantation that was
not investigated."
          Pedro's assertion that he did not understand the
charges against him appears to raise a claim under the first
Gomes basis — that he did not knowingly, intelligently or

     3/
          We refer to these two bases as the "Gomes bases."

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voluntarily waive his rights. In this regard, Pedro challenges
FOF Nos. 2 and 4, which state:
                2. There has been no evidence presented to challenge
          that the no contest plea was not knowingly, intelligently,
          and voluntarily given.
               . . . .

                4. There has been no evidence presented to show that
          [Pedro] did not understand all the proceedings, to include
          the change of plea proceeding, in this case.

          The record supports these findings, and we are not left
with a definite and firm conviction that a mistake has been made.
At a hearing on January 7, 2019, Pedro's then-counsel informed
the Circuit Court that Pedro and the State had reached a plea
agreement, under which Pedro agreed, among other things, to enter
a no contest plea to four counts of sexual assault in the second
degree. At that time, pursuant to HRPP Rule 11(c), the Circuit
Court carefully reviewed the entire change-of-plea form with
Pedro. At the outset, the Circuit Court noted the presence of
the interpreter to assist Pedro. Pedro acknowledged that he had
the assistance of the interpreter, as well as his attorney, in
reviewing the change of plea form. The Circuit Court then
established Pedro's age, level of education, and language
competency, and confirmed that at the time of the hearing, Pedro
had a clear mind.
          During the colloquy with the Circuit Court, Pedro
confirmed he understood the original charges against him, as well
as the reduced charges of sexual assault in the second degree.
The following exchange occurred:
                THE COURT: . . . Two says, I have received a written
          copy of the original charges in this case. The charges have
          been explained to me. I understand the original charges
          against me.
               Is that true?

               [PEDRO]:   Yes, sir.
                THE COURT: I told my lawyer all of the facts I know
          about the case. My lawyer explained the government's
          evidence against me, my possible defenses, and the facts
          which the government must prove in order to convict me.
               Is that all true?

               [PEDRO]:   Yes, your Honor.



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                THE COURT: Item three reads, I understand the reduced
          charges of sexual assault in the second degree in counts one
          through four with which the government has agreed to charge
          me, instead of the original charges of sexual assault in the
          first degree.

                Is that true?

                [PEDRO]:   Right, your Honor.

The Circuit Court also confirmed that Pedro understood the
penalties, including the maximum term of imprisonment, that could
be imposed for the offenses to which Pedro was pleading.
          Regarding Pedro's jury trial waiver, the following
exchange took place:
                THE COURT: . . . Please pay special attention to
          paragraph five. These are your constitutional rights, and
          they are guaranteed to you.
                 Starts with, I know I have the right to plead not
          guilty and have a speedy and public trial by jury or by the
          Court.

                Do you understand you have that right?

                [PEDRO]:   Yes, your Honor.
                THE COURT: Do you understand that by entering your
          plea today you are giving up that right and there will be no
          trial of any kind?

                [PEDRO]:   Yes, your Honor.
                THE COURT: Next says, I know in a trial the
          government is required to prove my guilt beyond a reasonable
          doubt. I know I can see, hear and question witnesses who
          testify against me, and I may call my own witnesses to
          testify for me at trial.
                Do you understand you have those rights?

                [PEDRO]:   Yes, your Honor.
                THE COURT: Do you understand that by entering your
          plea today you are giving up those rights?
                [PEDRO]:   Yes, your Honor.
                THE COURT: Next says, I understand I have the right
          to take the stand to testify. And I have the right not to
          testify at trial.
                Do you understand you have those rights?
                [PEDRO]:   Yes, your Honor.

                THE COURT: Do you understand that by entering your
          plea today you are giving up those rights? There will be no
          trial. Again, there will be no trial.

                [PEDRO]:   Yes, your Honor.



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                THE COURT: It's not on the form, but I want you to
          know that a jury is made up of 12 members of our community.
          You may participate in the selection of that jury through
          your attorney. The jury's verdict must be unanimous, which
          means they must all agree.

                If you waive your right to a jury trial, then a judge
          and a judge alone will determine your guilt or innocence.
                   Do you have any questions about that?

                   [PEDRO]:   No, your Honor.
                THE COURT: The last line in item five reads, I know
          by pleading, I give up the right to file any pretrial
          motions, and I give up the right to a trial and may be found
          guilty and sentenced without a trial of any kind. I also
          give up the right to appeal anything that has happened in
          this case to me.

                Do you have any questions about what I've just
          explained to you?
                   [PEDRO]:   No, your Honor.

          The Circuit Court informed Pedro that "if [he] sign[ed]
this [change-of-plea] form a second time in open court [he would]
be acknowledging that the Court has personally questioned [him]
and that [he] understood this form before signing it a second
time." The court also told Pedro that "if [he did] not
understand the form, or if [he did] not agree with it, then do
not sign it." Pedro then signed the form, and the court found
him guilty of the four charges of sexual assault in the second
degree.
          In the face of this record, Pedro argues that his
"unrebutted testimony" during the subsequent May 14, 2019
sentencing hearing showed that he did not understand the charges
against him. However, Pedro did not testify at the sentencing
hearing. His only statement during the hearing was his unsworn
allocution immediately prior to the Circuit Court imposing
sentence. At that time, the following exchange occurred
regarding the charges:
                   THE COURT: I read your letters [to the court], Mr.
          Pedro.     Is there anything else you wish to add?
                   [PEDRO]:   Um --
                   THE COURT:   You wrote those letters?

                   [PEDRO]:   Yes, sir.   I, yeah.




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                 THE COURT: Was there anything else you wanted to add
           in addition to that? You wanted me to read those letters;
           right --
                  [PEDRO]:   Yes, sir.

                  . . . .

                  [PEDRO]:   I didn't know what was my, um, charges.
                  THE COURT:   You didn't know your charges?
                  [PEDRO]:   Yeah.
                 THE COURT: Okay. Well, you seem to write about it in
           your letter though. Like you wrote about what you said you
           didn't do, based on what you must have known you were
           accused of doing.
                 You didn't write about a burglary. You didn't write
           about a shoplift. You didn't write about a stolen car.
                  You wrote about having consensual sex with a 17 year
           old.   So you knew what the case was about; right?

                 [PEDRO]:    Yeah, but I never really know what the
           whole --
                  THE COURT: Well, then why did you write the letter
           the way you wrote it? What did you think this case was
           about?
                 [PEDRO]: Because they told me when I went to -- um,
           when they took me to MPD they told me that I was charged
           with, um, sexual assault.

                 THE COURT: And when did they tell you that?      The
           night you got arrested?

                  [PEDRO]:   Yeah.
                 THE COURT:    Okay.   So you knew that before you even
           met your lawyer.

                  [PEDRO]:   Yes, sir.

           On this record, we conclude that Pedro did not meet his
burden of establishing a fair and just reason for withdrawal of
his no contest plea under the first Gomes basis. We thus
conclude that the Circuit Court did not abuse its discretion in
ruling that Pedro failed to establish that he did not waive his
rights knowingly, intelligently, or voluntarily when he entered
his plea.4/
     4/
            We also conclude that FOF No. 5 was not clearly erroneous. There,
the Circuit Court found "that although English is not [Pedro's] first
language, his authorship of three (3) handwritten letters to the Court, all
written in English, is indicative of his understanding of all of the
proceedings in this case. In addition a court appointed interpreter was also
provided for Defendant." In challenging this finding, Pedro asserts only that
"[t]here was no evidence in the record to suggest that [Pedro] authorized
                                                            continued . . .

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          Pedro also asserts that "he did not receive his copy of
the discovery until post change of plea and there was an alleged
complaining witness recantation that was not investigated."
These contentions appear to raise a claim under the second Gomes
basis – that there were changed circumstances or new information
that justified withdrawal of Pedro's plea. To withdraw a plea on
this basis, Pedro must, as an initial matter, "advance[] a claim
of new information or changed circumstances with factual support
that, if believed by a reasonable juror, would exculpate [him].
Gomes, 79 Hawai#i at 39, 897 P.2d at 966.
          Here, Pedro does not explain the nature of the
"discovery" he claims to have received after pleading no contest,
and the record does not reveal what it was. Indeed, this issue
was not raised in Pedro's motion to withdraw his no contest plea.
At the sentencing hearing, Pedro stated that after signing the
plea agreement, "a day -- couple of days or weeks after, I got my
discovery[,]" and "I found some false story on that." He did not
describe the "discovery." In response to questioning by the
Circuit Court, Pedro appeared to acknowledge that he had the
police reports for his case before pleading no contest, but he
had not read them because they were with his prisoner property at
the jail. Regardless, absent any indication in the record of the
nature of the later-acquired "discovery" or the "false story"
that it allegedly contained, Pedro did not advance a claim of new
information with factual support that, if believed by a
reasonable juror, would exculpate him.
          Pedro also claimed for the first time at the May 14,
2019 sentencing hearing that the complaining witness (CW) was
"recanting." At that time, the Circuit Court allowed Pedro's
mother (JP) to testify. Initially, JP stated: "[T]hey talk to
my cousin and tell her that they ask her. And she said he didn't
have anything to do with it, with the accusation[.]" In response
to questioning by the Circuit Court, JP clarified that her

   continued . . .
[sic] the letters solely by himself, and without any assistance." However,
the Circuit Court directly asked Pedro whether he wrote the letters, and he
responded, "Yes, sir. I, yeah." And Pedro points to nothing in the record
indicating that he wrote the letters with assistance.

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cousin, Bonet, had talked to her; another family member, Marilyn,
had talked to Bonet; and the CW had talked to Marilyn. JP stated
that she had spoken to Bonet about the matter three days earlier,
on May 11, 2019. She did not know when Bonet spoke to Marilyn,
or when Marilyn spoke to the CW. JP further testified that, per
Bonet, the CW told Marilyn that "[i]t was not her doing[,]" and
"[i]t wasn't her . . . that made up the story." The Circuit
Court summarized JP's testimony, which she confirmed, as follows:
"Bonet told you that Marilyn told her that [the CW] said, it
wasn't her, and whoever made up a story."
          In FOF Nos. 20 and 21, the Circuit Court found as
follows:
                20. The Defendant's mother's testimony is
          contradicted by [Pedro's] very own handwritten letters to
          the Court admitting that the sexual encounters did occur
          between him and the [CW] but that it was consensual.

                21. The Court finds that [Pedro's] motion to withdraw
          his plea, based on his counsel's understanding that the [CW]
          had recanted her allegations, lacks credibility and
          believability.

          In COL Nos. 9-12, the Circuit Court concluded:
                9. The Court does not find the Defendant's mother
          credible, as to the information put forth by Defense Counsel
          that the [CW] recanted the allegations against [Pedro].
                10. A recantation would entail the [CW] stating that
          this was not a sexual assault but, a consensual sexual
          encounter. The information provided was that someone, other
          than the [CW], made the information about [Pedro] and the
          [CW] up. That is not a recantation by the [CW].

                11. Based on [Pedro's] own handwritten letters to the
          court the sexual encounter occurred between him and the
          [CW].
                12. There was no recantation, no change of
          circumstances, and nothing in the testimony of Defendant's
          mother that requires a delay in sentencing for further
          investigation by Defense Counsel.

          Of these FOFs and COLs, Pedro challenges only COL No.
12. FOF Nos. 20 and 21, and COL Nos. 9, 10, and 11, are
therefore binding on appeal and support COL No. 12. See State v.
Rapozo, 123 Hawai#i 329, 334 n.4, 235 P.3d 325, 330 n.4 (2010);
Amfac, Inc., v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 125,
839 P.2d 10, 31 (1992). Pedro does not contend, and we do not
find, that COL No. 12 reflects the application of an incorrect



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rule of law. Accordingly, on this record, we conclude that COL
No. 12 is not wrong.
          Furthermore, we find no abuse of discretion in the
Circuit Court's decision not to credit JP's testimony regarding
the CW's alleged recantation. See Jim, 58 Haw. at 578, 574 P.2d
at 524 ("The trial court did not believe the defendant and found
his reasons for withdrawal to be without sufficient merit. On
the record before us we find no abuse of judicial discretion.").
On this record, Pedro failed to present a plausible claim of new
information or changed circumstances under Gomes, and the Circuit
Court did not abuse its discretion in denying Pedro's motion to
withdraw his no contest plea on this basis.5/ See 79 Hawai#i at
36, 897 P.2d at 963.
          (2) Pedro contends that the Circuit Court abused its
discretion in sentencing him to an open ten-year term because he
"did not take the matter to trial[,] thereby saving the State the
time and expense . . . [and] thereby alleviating an already
burdened court calendar[.]" Pedro further contends that a
probation sentence would have been more appropriate because there
was no applicable mandatory minimum or extended term.
          Pedro has failed to show that the Circuit Court abused
its discretion or that it did not consider the factors in HRS
§ 706-606 (2014).6/ The Hawai#i Supreme Court has stated:
      5/
            Because Pedro failed to meet his initial burden, his alleged undue
delay in moving to withdraw, and the State's purported reliance upon the plea,
need not be addressed. We therefore do not decide whether FOF No. 6 was
clearly erroneous or COL No. 13 was wrong.
      6/
            HRS § 706-606 states, in relevant part:
            The court, in determining the particular sentence to be
            imposed, shall consider:

                  (1)   The nature and circumstances of the offense and
                        the history and characteristics of the
                        defendant;
                  (2)   The need for the sentence imposed:

                        (a)   To reflect the seriousness of the offense,
                              to promote respect for law, and to provide
                              just punishment for the offense;
                        (b)   To afford adequate deterrence to criminal
                              conduct;

                                                             continued . . .


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           A sentencing judge generally has broad discretion in
           imposing a sentence. The applicable standard of
           review for sentencing or resentencing matters is
           whether the court committed plain and manifest abuse
           of discretion in its decision. Factors which indicate
           a plain and manifest abuse of discretion are arbitrary
           or capricious action by the judge and a rigid refusal
           to consider the defendant's contentions. And,
           generally, to constitute an abuse it must appear that
           the court clearly exceeded the bounds of reason or
           disregarded rules or principles of law or practice to
           the substantial detriment of a party litigant.

State v. Kong, 131 Hawai#i 94, 101, 315 P.3d 720, 727 (2013)
(quoting State v. Rivera, 106 Hawai#i 146, 154–55, 102 P.3d 1044,
1052–53 (2004), overruled on other grounds by State v.
Maugaotega, 115 Hawai#i 432, 442–43, 168 P.3d 562, 572–73
(2007)). "The weight to be given the factors set forth in HRS
§ 706–606 in imposing sentence is a matter generally left to the
discretion of the sentencing court, taking into consideration the
circumstances of each case." Id. (quoting State v. Akana, 10
Haw. App. 381, 386, 876 P.2d 1331, 1334 (1994)). "[A]bsent clear
evidence to the contrary, it is presumed that a sentencing court
will have considered all the factors." State v. Hussein, 122
Hawai#i 495, 518, 229 P.3d 313, 336 (2010) (ellipses, emphasis,
and brackets omitted).
           Here, the record demonstrates that the Circuit Court
weighed many factors before determining Pedro's sentence. For
example, the court read the pre-sentence investigation report, as
well as the letters that Pedro had sent to the court, and allowed
Pedro to address the court before sentencing. The record also
shows that in weighing the sentencing factors, the Circuit Court

  continued . . .

                          (c)   To protect the public from further crimes
                                of the defendant; and

                          (d)   To provide the defendant with needed
                                educational or vocational training,
                                medical care, or other correctional
                                treatment in the most effective manner;
                    (3)   The kinds of sentences available; and
                    (4)   The need to avoid unwarranted sentence
                          disparities among defendants with similar
                          records who have been found guilty of similar
                          conduct.


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emphasized the nature and circumstances, as well as the
seriousness, of Pedro's offense — four counts of sexual assault
in the second degree against a 17-year-old girl. See State v.
Sacoco, 45 Haw. 288, 293-94, 367 P.2d 11, 14 (1961). In this
context, the Circuit Court specifically rejected probation as an
appropriate sentence; the court also declined to impose
consecutive sentences, which could have resulted in a 40-year
term of imprisonment. We conclude that on this record, the
Circuit Court did not abuse its discretion in sentencing Pedro to
ten years of imprisonment instead of probation.
          Therefore, the Judgment; Conviction and Sentence;
Notice of Entry, entered on May 15, 2019, in the Family Court of
the Second Circuit, is affirmed.

          DATED:   Honolulu, Hawai#i, August 24, 2020.



On the briefs:
                                      /s/ Lisa M. Ginoza
Shawn A. Luiz                         Chief Judge
for Defendant-Appellant.

Richard B. Rost,                      /s/ Katherine G. Leonard
Deputy Prosecuting Attorney,          Associate Judge
County of Maui,
for Plaintiff-Appellee.
                                      /s/ Clyde J. Wadsworth
                                      Associate Judge




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