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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-XX-XXXXXXX
                                                              06-JUN-2019
                                                              07:57 AM



           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---o0o---
________________________________________________________________

                          STATE OF HAWAIʻI,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                          WALTER GUITY,
                Petitioner/Defendant-Appellant.
________________________________________________________________

                            SCWC-XX-XXXXXXX

        CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
 (CAAP-XX-XXXXXXX; CR. NO. 11-1-0288 and FC-CR. NO. 10-1-0022)

                              June 6, 2019

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                 OPINION OF THE COURT BY WILSON, J.

          After having entered a plea agreement, but prior to

sentencing, Petitioner/Defendant-Appellant Walter Guity

(“Guity”), representing himself, orally moved in the Circuit

Court of the First Circuit (“circuit court”) to withdraw guilty

pleas in his global plea agreement to two criminal offenses—one

charged in the family district court (“family court case”) that
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was legally impossible for him to have committed under the law

in effect at the time of his plea.        The second offense was

charged in the circuit court (“circuit court case”).           At the

conclusion of the hearing, the circuit court denied Guity’s oral

motion to withdraw pleas in both cases and entered a sentence

pursuant to the plea agreement.

          Because both of Guity’s pleas were encompassed in a

global plea agreement, and the Intermediate Court of Appeals

(“ICA”) correctly concluded that Guity was entitled to withdraw

his plea in the family court case, the ICA should have also held

that Guity was permitted to withdraw his plea in the circuit

court case.   Accordingly, we vacate the ICA’s judgment on

appeal, the circuit court’s judgments, and the circuit court’s

order denying Guity’s motion to withdraw pleas and remand to the

circuit court with instructions to accept Guity’s withdrawal of

both pleas.

                              I. Background

          In May 2010, Guity was charged in the family court

with multiple counts relating to an incident with his wife,

including attempted first-degree sexual assault.           In March 2011,

while awaiting trial in the family court case, Guity was charged

in the circuit court with multiple counts of second-degree and

fourth-degree sexual assault in an incident involving another

woman.


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            In May 2011, Guity entered a plea agreement in the

circuit court encompassing both cases.          In that agreement, he

pleaded guilty to the reduced charge of third-degree sexual

assault in the family court case, and pleaded guilty to second-

degree sexual assault in the circuit court case.            In return, the

State agreed to dismiss the remaining counts in both cases.

            At the time of the plea agreement, it was legally

impossible for Guity to have committed the crime to which he had

pleaded guilty in the family court case relating to his wife.

Hawaiʻi Revised Statutes (“HRS”) § 707-732(1)(f) (2014) (defining

sexual assault in the third degree as “knowingly, by strong

compulsion,” having “sexual contact with another person”); HRS §

707-700 (2014) (defining “sexual contact” as “any touching,

other than acts of ‘sexual penetration’, of the sexual or other

intimate parts of a person not married to the actor” (emphasis

added)).1   As the transcript of the change of plea hearing makes

clear, the State, Guity, and the court accepting his plea were

all aware at the time of his plea that third-degree sexual

assault excluded an offense involving a spouse.2


     1
            The legislature replaced the phrase “of a person not married to
the actor” with “another” in the definition of “sexual contact” in 2016.
2016 Haw. Sess. Laws Act 231, § 32 at 753.
      2
            During the hearing, the court said, “sexual assault in the third
degree is actually defined by the Legislature to exclude sexual contact,
under this statute, with someone you’re married to. But in accordance with
the plea bargain you have agreed to plead to this offense. Is that -- you

                                                             (continued . . .)


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A.   Circuit Court Proceedings

            Guity was represented by private counsel during his

plea negotiations and at his change of plea hearing.             He

subsequently became dissatisfied with his attorney, who

withdrew.     Guity was appointed a deputy public defender; he,

too, subsequently withdrew from representing Guity.             On December

10, 2011, Guity notified the circuit court he wanted to

represent himself.

            On January 17, 2012, the circuit court held a hearing

in which it inquired into Guity’s desire to represent himself on

a motion to withdraw his guilty pleas.3          Guity’s explanation of

his motives and readiness to represent himself was ambiguous.

For example, at the very end of the hearing, the circuit court

asked, “I take it that you’re making a voluntary, knowing, and

intelligent decision that you do not want [court-appointed

counsel] to actually handle this, or you do not want to exercise

your right to a lawyer and you want do it yourself.”             In

response to that question, Guity stated, “I need a lawyer, your

Honor.”    The circuit court responded, “[l]ook, I’m not going to

(. . . continued)

understand all of that?” Guity responded, “[y]es, Your Honor.” The court
then asked, “[a]re you giving up your right to be excluded from that statute
by legislative language?” Guity responded, “[y]es, Your Honor.” The court
then asked, “[d]o you have any questions about that?” Guity responded,
“[n]o, Your Honor.”
      3
            The Honorable Karen S.S. Ahn presided.




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play games, Mr. Guity.”      Nonetheless, the court agreed to allow

him to represent himself with the assistance of stand-by

appointed counsel.     Yet the court’s permission for Guity to

represent himself was itself ambiguous, since the court closed

the hearing by saying, “[i]f time is your problem, I’m denying

your motion.    Let’s proceed.”4

           Three days later, on January 20, 2012, the circuit

court heard Guity’s oral motion to withdraw his guilty pleas.

He argued the motion pro se, with court-appointed counsel

operating as stand-by counsel.        Guity argued, inter alia, that

during the plea negotiations (and at the change of plea hearing)

his private attorney had failed to explain to him the nature of

the law, including the fact that he was pleading guilty to a

crime he could not legally commit in the family court case.              The

circuit court denied Guity’s motion to withdraw his guilty

pleas.   The court later sentenced him to a one-year term of

imprisonment for the family court case, an eighteen-month term

of imprisonment for the circuit court case, and concurrent five-

year terms of probation for each count pursuant to the plea

agreement.

     4
            Although the court said at the end of the hearing, “I’m denying
your motion[,]” the court probably meant that it was granting Guity’s motion
to proceed pro se in his oral motion to withdraw pleas, but denying Guity’s
appointed counsel’s motion to withdraw from representing Guity. That left
Guity’s appointed counsel in the position of “stand-by counsel” for purposes
of Guity’s motion to withdraw pleas.




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B. The ICA’s Memorandum Opinion

             The ICA’s opinion first discussed Guity’s challenge to

the factual basis of the pleas to the charge in the family court

case.     The ICA held that the circuit court had “clearly violated

[Hawaiʻi Rules of Penal Procedure (“HRPP”)] Rule 11(g)” because

it knew “there was no factual basis” for that plea, and it

“affirmatively knew that it was legally impossible for Guity to

have committed this offense.”          State v. Guity, No. CAAP-12-

0000287, 2016 WL 6427681, at *7 (App. Oct. 31, 2016) (mem.).

Given that the plea in the family court case violated HRPP Rule

11(g), the ICA concluded that the circuit court “should not have

accepted his guilty plea to this offense.”            Id.   The ICA next

addressed the State’s argument that Guity had waived the defect

in his guilty plea in the family court case.             The ICA observed

that allowing a defendant to plead guilty to a crime he could

not legally commit “implicates the integrity of the judicial

system.”     Id. at *8.     The court concluded that allowing such a

plea “would be contrary to the truth-seeking function of the

criminal justice system and would serve to undermine the

integrity of the system and public confidence in the system.”

Id.    For that reason, “Guity’s challenge to his guilty plea

could not be barred by waiver.”             Id.




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           The ICA also concluded that the circuit court erred in

allowing Guity to represent himself at the motion to withdraw

his guilty pleas because the circuit court had failed to first

obtain a valid waiver of his right to counsel.          Id.   “Because

Guity did not validly waive his right to counsel prior to the

hearing, the results of the hearing were tainted and the Circuit

Court’s rulings cannot stand.”       Id. at *10.

           The ICA vacated the judgment in the circuit court case

and vacated, as well, the judgment in the case involving Guity’s

plea in the family court case.       Id. at *10.     The ICA found that

Guity’s plea in the latter, to a crime he could not legally have

committed, could never form part of a valid plea agreement.              Id.

at *8.   Accordingly, the ICA remanded to the circuit court with

instructions to permit Guity to withdraw that plea.           Id. at *10.

In contrast, the ICA found that Guity’s plea in the circuit

court case was an otherwise valid plea tainted only by the fact

that the record did “not reflect a valid waiver of counsel” at

the time he appeared pro se to argue his motion to withdraw

guilty pleas.   Id. at *8.

           Thus, with respect to Guity’s plea to a legally

impossible crime, the ICA remanded to the circuit court with

instructions to permit Guity to withdraw that plea.           Id. at *10.

But with respect to Guity’s plea in the circuit court case, the




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ICA remanded to the circuit court with instructions to allow the

State to exercise one of two options.           Id.

               The first option allowed the State to enforce the

remainder of the plea agreement involving the circuit court

case.    Id.     If the State elected that first option, Guity would

be entitled to a new hearing on his motion to withdraw the

remaining guilty plea.          Id.   If his motion to withdraw plea in

the new hearing was granted, Guity would be able to withdraw the

plea.    If, however, his motion in the new hearing was denied,

Guity would be held to his plea in the circuit court case.             The

second option would allow the State to withdraw from the plea

agreement altogether and pursue all the original charges in both

cases.    Id.

               While it is not entirely clear, the ICA appeared to

base its articulation of those two options on remand concerning

the plea in the circuit court case upon the premise that “the

State did not breach the plea agreement” and therefore as the

non-breaching party it “retains” those two options.           Id.   The

ICA provided no explanation, and no citation to any legal

authority, justifying or explaining its adoption of those two

options.

                          II.    Standard of Review

               A trial court’s denial of a motion to withdraw a plea

made prior to sentencing is reviewed for abuse of discretion.


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State v. Garcia, 135 Hawaiʻi 361, 368, 351 P.3d 588, 595 (2015).

A court abuses its discretion when, among other things, it “has

disregarded rules or principles of law or practice to the

substantial detriment of a party litigant.”          Id. (quoting State

v. Merino, 81 Hawaiʻi 198, 211, 915 P.2d 672, 685 (1996)).

                            III.   Discussion

          The ICA vacated both convictions arising from Guity’s

guilty pleas.   First, the ICA vacated the judgment in the family

court case based on Guity’s plea to a crime he could not have

legally committed.    Guity, 2016 WL 6427681, at *10.         Second,

with respect to his plea in the circuit court case, the ICA

concluded that Guity had not adequately waived his right to

counsel before proceeding to argue unsuccessfully his pro se

motion to withdraw pleas.      Id. at *8-*10.

          Guity challenges the ICA’s failure to direct the

circuit court to grant his motion to withdraw his plea in the

circuit court case.     Instead, the ICA’s remand instructions

require the circuit court to rehear the motion to withdraw the

plea, leaving the possibility open that the circuit court could

deny Guity’s motion to withdraw the remaining plea.           Id. at *10.

In that event, the State would retain the option of holding him

to his plea on the remaining charge or withdrawing from the

agreement.




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          We conclude that the circuit court abused its

discretion in denying Guity’s motion to withdraw his plea in the

circuit court case.     When a motion to withdraw a plea is made

prior to sentencing, “a more liberal approach is to be taken,

and the motion should be granted if [1] the defendant has

presented a fair and just reason for his request and [2] the

State has not relied upon the guilty plea to its substantial

prejudice.”   Garcia, 135 Hawaiʻi at 368, 351 P.3d at 595

(emphasis added) (quoting State v. Jim, 58 Haw. 574, 576, 574

P.2d 521, 523 (1978)); see also State v. Sanney, 141 Hawaiʻi 14,

22, 404 P.3d 280, 288 (2017) (“After entry of a plea of guilty

or nolo contendere and before sentence, the court should allow

the defendant to withdraw the plea for any fair and just

reason.” (emphasis added) (quoting Standard 14-2.1. Plea

Withdrawal and Specific Performance, ABA Standards for Criminal

Justice (3d ed. 1999))).

          In its written “Order Denying Oral Motion to Withdraw

Guilty Plea,” the circuit court found no fair and just reason to

permit Guity to withdraw his pleas in both cases:

          Based upon the credible evidence, and all reasonable
          inferences to be drawn therefrom, the Court finds that no
          fair and just reason has been shown to permit Defendant to
          withdraw his guilty pleas in the two cases. The Court
          confirms that Defendant voluntarily, intelligently, and
          knowingly entered his pleas of guilty on May 18, 2011.

In response to Guity’s challenge to the circuit court’s finding,

the State conceded in its briefing before the ICA that, because


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it could not show substantial prejudice, the only remaining

question before the ICA was the “fair and just reason”

requirement, which the State characterized as the question

“whether the Defendant entered the plea knowingly,

intelligently, and voluntarily.”

          Both the circuit court in its order, and the State in

its briefing, appear to confuse a “fair and just reason” for

withdrawing a plea with whether a defendant attempting to

withdraw a plea validly waived or relinquished his or her

constitutional right to trial (or other right) when entering the

plea.   It is true that the failure of a defendant to enter a

guilty plea knowingly, intelligently, and voluntarily will

amount to a “fair and just reason” to withdraw the plea.            See

State v. Krstoth, 138 Hawaiʻi 268, 276, 378 P.3d 984, 992 (2016)

(“In this case, the record does not establish that Krstoth

knowingly, intelligently and voluntarily waived his rights by

changing his plea, as required by law.         Therefore, ‘fair and

just reasons’ existed for granting a withdrawal of his plea.”).

It does not follow, however, that the only permissible “fair and

just reason” to withdraw a plea is the defendant’s failure to

enter the plea knowingly, intelligently, and voluntarily.

          The State’s argument would convert the well-settled

“more liberal approach” applicable to motions to withdraw pleas

prior to sentencing into a more restrictive and demanding


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standard.   See Jim, 58 Haw. at 575-76, 574 P.2d at 522-23

(contrasting the “manifest injustice” standard for withdrawing a

plea subsequent to sentencing with “a more liberal approach” to

plea withdrawals prior to sentencing).         Under Jim, where the

State has not relied upon the guilty plea to its substantial

prejudice, “the motion should be granted if the defendant has

presented a fair and just reason for his request[.]”           Id. at

576, 574 P.2d at 523; see also State v. Costa, 64 Haw. 564, 565,

644 P.2d 1329, 1331 (1982) (noting that a defendant attempting

to withdraw a plea prior to sentencing “has the burden of

establishing plausible and legitimate grounds for the

withdrawal”); HRPP Rule 32(d) (providing that a motion to

withdraw a plea made within ten days of imposition of sentence

may be made “to correct manifest injustice”).

            This difference between the “fair and just” standard

(applied to a motion to withdraw a plea made before sentencing)

and the “manifest injustice” standard (applied when the motion

is made after sentencing) is based on sound policy.           When a

motion to withdraw a plea has been made prior to sentencing, as

opposed to after sentencing, there is no “opportunity for the

defendant to test the severity of sentence before finally

committing himself to a guilty plea.”        Jim, 58 Haw. at 576, 574

P.2d at 523 (quoting Sherman v. United States, 383 F.2d 837, 840

(9th Cir. 1967)).    In other words, in a motion to withdraw a


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plea made prior to sentencing, the defendant cannot obtain a

sentence and then move to withdraw the plea if he or she deems

that sentence too severe.      The effect of allowing a defendant to

withdraw his or her plea prior to sentencing for any fair and

just reason is to allow the defendant to pursue his or her

constitutional right to trial on the original charges.

           Here, Guity knew as he was entering his plea that he

was pleading to a crime it was impossible for him to have

committed.   Guity maintains that he was entitled to withdraw his

plea in the family court case because “it was legally impossible

for him to have committed third-degree sexual assault of his

wife[.]”   Hence, he asserts:

           [Because] the plea in the Family Court Case and the plea in
           the Circuit Court Case cannot be viewed separately or in
           isolation of one another as they were part of a global plea
           agreement . . . which was not divisible . . . his pleas
           should be withdrawn in both the Family Court Case and the
           Circuit Court Case.

           Guity aptly observes that this court has yet to

consider whether a defendant’s withdrawal of one plea entered

pursuant to a single plea agreement that encompasses multiple

charges and/or criminal matters necessarily permits him or her

to withdraw all of the other pleas that were part of the same

agreement.   As noted, in so doing we consider whether Guity has

established a fair and just reason for his request to withdraw

his plea in the circuit court case.        In Garcia, the failure of

the government to comply with the terms of a plea agreement was


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deemed a fair and just reason for the defendant to withdraw his

guilty plea prior to sentencing.          By analogy, in the instant

case, the plea agreement was legally unenforceable through no

fault of the defendant, thus demonstrating a fair and just

reason for the withdrawal.       The objective facts surrounding

Guity’s plea agreement adequately indicate that the agreement

was meant to be a single agreement.         In this case, the pleas in

the circuit court case and the family court case were negotiated

contemporaneously.      The final plea agreement, which contained

all of the terms and conditions relating to Guity’s guilty pleas

in both cases, was contained in one document.5           Guity entered,

and the circuit court accepted, both of his pleas at the same

change of plea hearing.       Further, at the change of plea hearing,

the circuit court conducted most of the colloquy required under

HRPP Rule 11 with respect to both of Guity’s guilty pleas at the

same time.    On this record, the plea agreement in this case was

clearly a global plea agreement.

           The ICA held correctly that Guity was entitled to

withdraw his guilty plea in the family court case because “the

Circuit Court definitively knew that it was legally impossible

for Guity to have committed third-degree sexual assault of his


      5
            Containment of the terms and conditions of both pleas in one
document is a factor but not a requirement for determination of a global plea
agreement.




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wife[.]”     Guity, 2016 WL 6427681 at *7.         As explained above, the

record in this case supports that Guity’s guilty plea in the

family court case was a component of a single agreement that

included his plea in the circuit court case.             Therefore, because

Guity was entitled to withdraw his plea in the family court

case, he was also entitled to withdraw his plea in the circuit

court case.

             As noted by Guity, the Supreme Court of Washington

applied a similar analysis to analogous circumstances in State

v. Turley, 69 P.3d 338 (Wash. 2003).           In Turley, the defendant

pleaded guilty to one count of escape in the first-degree

(“escape count”) and one count of conspiracy to manufacture

methamphetamine (“conspiracy count”) pursuant to a plea

agreement.      69 P.3d at 340.     At the plea hearing, the government

erroneously represented that mandatory community placement was

not required as part of the sentence on the conspiracy count.

Id.    The trial court accepted the defendant’s pleas, and

sentenced him to seventy-two months of imprisonment for the

escape count and twelve months of imprisonment for the

conspiracy count, which were to run concurrently with one

another.     Id.

             Nearly three years after the defendant entered his

plea, the government learned that the conspiracy count carried a

mandatory sentence of twelve months of community placement, and


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filed a motion to amend the judgment and sentence to include

this term.      Id.    Subsequently, the defendant moved to withdraw

both of his pleas.         Id.   The defendant argued that he was

entitled to withdraw his plea to the conspiracy count because he

was misinformed about the sentence he could receive on that

offense.     Id.      Accordingly, the defendant asserted that because

the plea agreement covered both the escape count and the

conspiracy count, he was also entitled to withdraw his plea with

respect to the escape count.          Id.    The trial court allowed the

defendant to withdraw his guilty plea as to the conspiracy

count, but not the escape count.            Id.   The Washington Court of

Appeals affirmed.         Id.

             The Supreme Court of Washington reversed the Court of

Appeals.     Id.      The Turley court highlighted that the defendant

negotiated and pleaded to the two charges contemporaneously,

that one document contained the plea to and conditions for both

charges, that the trial court accepted both pleas at one

hearing, and that at the hearing, the trial court advised the

defendant of the consequences of his plea, but did not separate

the consequences based upon the individual charges.              Id. at 341-

42.    Consequently, the Supreme Court of Washington concluded

that because the plea agreement was “one bargain, or . . . a

‘package deal[,]’” and the defendant was entitled to withdraw

his plea to the conspiracy count, the defendant should have also


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been allowed to withdraw his plea to the escape count.            Id.   The

Turley court thus remanded the case to the trial court with

instructions to allow the defendant to withdraw his pleas to

both counts.   Id.

          The Supreme Court of Washington’s analysis in Turley

is persuasive; we conclude that the plea agreement in this case

was a “package deal.”      Because the ICA correctly held that Guity

was entitled to withdraw his guilty plea in the family court

case, the ICA should have also concluded that Guity was entitled

to withdraw his guilty plea in the circuit court case.

          To conclude, on the facts in this case, the ICA erred

insofar as it held that Guity is not entitled to withdraw his

guilty plea in the circuit court case.         Rather, the circuit

court should have allowed Guity to withdraw both of his pleas.

                             IV. Conclusion

          For the reasons stated above, we hold the circuit

court abused its discretion in denying Guity’s motion to

withdraw both pleas.      We vacate the ICA’s November 21, 2016

judgment on appeal, the circuit court’s March 5, 2012 judgment

in the circuit court case, the circuit court’s March 8, 2012

amended judgment in the family court case, and the circuit

court’s January 20, 2012 order denying Guity’s motion to

withdraw pleas.      We remand to the circuit court with




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instructions to accept Guity’s withdrawal of both pleas and for

further proceedings consistent with this opinion.

Shawn A. Luiz                     /s/ Mark E. Recktenwald
(Brian A. Costa
on the briefs                     /s/ Paula A. Nakayama
and application)
for Petitioner                    /s/ Sabrina S. McKenna
Stephen K. Tsushima               /s/ Richard W. Pollack
for Respondent
                                  /s/ Michael D. Wilson




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