               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 36649

STATE OF IDAHO,                                  )     2010 Unpublished Opinion No. 544
                                                 )
       Plaintiff-Respondent,                     )     Filed: July 7, 2010
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
HENRY ARTHUR PETERS,                             )     THIS IS AN UNPUBLISHED
                                                 )     OPINION AND SHALL NOT
       Defendant-Appellant.                      )     BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Michael E. Wetherell, District Judge.

       Judgment of conviction and unified sentence of twelve years, with a minimum
       period of confinement of two years, for trafficking in marijuana, affirmed; order
       denying I.C.R. 35 motion for reduction of sentence, affirmed; and order denying
       motion to withdraw guilty plea, affirmed.

       Molly J. Huskey, State Appellate Public Defender; Mark J. Ackley, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                  ______________________________________________
MELANSON, Judge
       Henry Arthur Peters appeals from his judgment of conviction and sentence for trafficking
in marijuana. Peters also appeals from the district court’s order denying his I.C.R. 35 motion for
reduction of sentence and order denying his motion to withdraw his guilty plea. For the reasons
set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       A confidential informant (CI) working with police identified Peters as a drug dealer.
During an investigation, police questioned Peters, who confessed to selling marijuana for two
years. Peters consented to a search of his property, which resulted in the discovery of over four
pounds of marijuana. Initially, Peters agreed to cooperate with police, but later failed to do so,



                                                1
and was arrested for trafficking in marijuana. Pursuant to a plea agreement, Peters pled guilty to
trafficking in marijuana. I.C. § 37-2732B(a)(1)(A). In exchange for Peters’s guilty plea, the
state agreed not to pursue any additional charges and to recommend a sentence less than the
maximum penalty.
         During the presentence investigation (PSI) and at the sentencing hearing, Peters recanted
portions of his confession to police. Peters claimed that he sold marijuana to the CI but that the
marijuana belonged to his roommate. Peters also denied having sold drugs for two years and
explained that he confessed only because he was trying to protect his friend. The district court
sentenced Peters to a unified term of twelve years, with a minimum period of confinement of two
years.
         Peters filed an I.C.R. 35 motion for reduction of sentence, which the district court denied
without a hearing. Peters then filed a motion to withdraw his guilty plea. The district court also
denied the motion without a hearing. Peters appeals.
                                                 II.
                                            ANALYSIS
A.       Sentence Review
         Peters argues that the sentence imposed was unreasonable. An appellate review of a
sentence is based on an abuse of discretion standard. State v. Burdett, 134 Idaho 271, 276, 1
P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal, the appellant has the burden to
show that it is unreasonable, and thus a clear abuse of discretion. State v. Brown, 121 Idaho 385,
393, 825 P.2d 482, 490 (1992). A sentence may represent such an abuse of discretion if it is
shown to be unreasonable upon the facts of the case. State v. Nice, 103 Idaho 89, 90, 645 P.2d
323, 324 (1982). A sentence of confinement is reasonable if it appears at the time of sentencing
that confinement is necessary “to accomplish the primary objective of protecting society and to
achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a
given case.” State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). Where an
appellant contends that the sentencing court imposed an excessively harsh sentence, we conduct
an independent review of the record, having regard for the nature of the offense, the character of
the offender, and the protection of the public interest. State v. Reinke, 103 Idaho 771, 772, 653
P.2d 1183, 1184 (Ct. App. 1982). When reviewing the length of a sentence, we consider the




                                                  2
defendant’s entire sentence. State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007).
Upon review of the record in this case, we cannot say that the district court abused its discretion.
B.        Rule 35
          Peters also contends that the district court erred by denying Peters’s Rule 35 motion for
reduction of sentence. A motion for reduction of sentence under Rule 35 is essentially a plea for
leniency, addressed to the sound discretion of the court. State v. Knighton, 143 Idaho 318, 319,
144 P.3d 23, 24 (2006); State v. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App. 1989). In
presenting a Rule 35 motion, the defendant must show that the sentence is excessive in light of
new or additional information subsequently provided to the district court in support of the
motion. State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007). In conducting our
review of the grant or denial of a Rule 35 motion, we consider the entire record and apply the
same criteria used for determining the reasonableness of the original sentence. State v. Forde,
113 Idaho 21, 22, 740 P.2d 63, 64 (Ct. App. 1987); State v. Lopez, 106 Idaho 447, 449-51, 680
P.2d 869, 871-73 (Ct. App. 1984).
          Most of the information presented in support of Peters’s Rule 35 motion was not new to
the district court.     Rather, the information presented by Peters was previously offered at
sentencing. Peters attached to his motion a letter from the CI stating that, while she asked Peters
for marijuana “a couple of times,” she understood that the marijuana belonged to Peters’s
roommate. However, the district court was well aware of this assertion, as Peters made the same
claim at sentencing and in the PSI. In addition, Peters presented a letter from his brother,
detailing Peters’s family ties and employment history. At sentencing, however, the district court
was provided with evidence of Peters’s opportunities for employment and support from his
family.
          Peters also included a letter from a county jail officer, stating that Peters was a model
inmate. While this information about Peters’s behavior was not presented to the district court at
sentencing, it does not demonstrate that the sentence imposed was excessive or unreasonable.
Therefore, based upon our review of the record, we conclude that Peters has failed to show that
the district court abused discretion when it denied Peters’s Rule 35 motion.
C.        Motion to Withdraw Guilty Plea
          Finally, Peters asserts that the district court abused its discretion by denying his motion to
withdraw his guilty plea. Whether to grant a motion to withdraw a guilty plea lies in the


                                                    3
discretion of the district court and such discretion should be liberally applied. State v. Freeman,
110 Idaho 117, 121, 714 P.3d 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. Also of importance is whether the motion
to withdraw a plea is made before or after the sentence is imposed. Idaho Criminal Rule 33(c)
provides that a plea may be withdrawn after sentencing only to correct manifest injustice. The
stricter standard after sentencing is justified to insure that the accused is not encouraged to plead
guilty to test the weight of potential punishment and withdraw the plea if the sentence was
unexpectedly severe. Id. Accordingly, in cases involving a motion to withdraw a plea after
sentencing, appellate review is limited to reviewing the record and determining whether the trial
court abused its sound discretion in determining that no manifest injustice would occur if the
defendant was prohibited from withdrawing his or her plea. State v. Lavy, 121 Idaho 842, 844,
828 P.2d 871, 873 (1992).
       Peters filed the motion to withdraw his guilty plea almost six months after sentencing. In
his motion, Peters alleged that his guilty plea was not made knowingly or voluntarily and that he
did not understand the consequences of his plea. In addition, Peters claimed that he entered the
plea under duress and coercion while in fear for his life. Finally, Peters asserted that he was not
guilty. These assertions directly contradict Peters’s sworn testimony during his guilty plea
hearing. At that hearing, the district court conducted the following colloquy:
               [COURT]:        Do you understand the nature of the charge against you and
                               the possible penalties that may be imposed as a result of
                               your guilty plea?
               [PETERS]:       Yes, sir.
               [COURT]:        Do you understand that there are other consequences to you
                               of a plea of guilty to a felony charge?
               [PETERS]:       Yes.
               ....
               [COURT]:        Has anyone promised you that I would be easy on you if
                               you pled guilty to the offense?
               [PETERS]:       No.
               ....
               [COURT]:        Has anyone threatened you or anyone close to you to get
                               you to plead guilty?
               [PETERS]:       No, sir.
               ....



                                                 4
               [COURT]:       Are you pleading guilty just to get it over with even though
                              you believe you’re innocent?
               [PETERS]:      No, sir.
               ....
               [COURT]:       Can you tell me when you decided to plead guilty to the
                              charge?
               [PETERS]:      About thirty days ago.
               [COURT]:       And why did you decide to plead guilty?
               [PETERS]:      Because I was in possession.
               [COURT]:       And are you pleading guilty freely and voluntarily?
               [PETERS]:      Yes.


In response to further questioning by the district court, Peters indicated that he understood a
guilty plea was an admission that the charge was true and that the plea resulted in Peters giving
up any possible defenses.
       While Peters’s motion to withdraw guilty plea asserted that he pled guilty because he was
in fear for his life, such an allegation is belied by the record and his previous sworn statements.
The record is void of any allegations of threats by third parties or other evidence of coercion as
to his decision to plead guilty. Peters’s unsworn letter submitted with his I.C.R. 35 motion and
relied on by the district court in deciding the motion to withdraw guilty plea mentioned nothing
about his fear of his roommate. The unsworn letter from the CI (signed with her first name and a
“smiley face”) referred to her fear of the roommate. The letters did refer to Peters’s alleged
coerced consent to a search and allegedly coerced admissions he made to the police but not to
any coercion regarding his plea of guilty. The only allegation of coercion regarding his plea was
stated in the motion but was unsupported by any evidence. Therefore, Peters has failed to
demonstrate that manifest injustice occurred because he was prohibited from withdrawing his
guilty plea based on his claim of coercion.
       Peters also argues that he should have been permitted to withdraw his guilty plea because
he is innocent. This claim, too, is belied by his own sworn testimony and the record. His claim
that his roommate was actually a drug dealer and that he did a favor for his friend (the CI) by
giving her marijuana when the roommate was absent was asserted by Peters in his version of
events given to the presentence investigator and was argued by his attorney at sentencing.
However, during the plea colloquy, Peters admitted that he was in possession of “a little over
four pounds” of marijuana. At sentencing, Peters’s attorney admitted that Peters did “provide the



                                                5
marijuana to the informant; and, yes he was in possession of over a pound of marijuana.” Peters
has failed to demonstrate that manifest injustice occurred because he was prohibited from
withdrawing his guilty plea based upon his claim of innocence.
       Peters also contends that the district court erred by failing to grant an evidentiary hearing
on the motion to withdraw guilty plea. Specifically, Peters argues that, because the CI’s unsworn
letter (which was attached to his earlier Rule 35 motion) supported his allegations of coercion
and innocence, the district court should have held an evidentiary hearing on the motion to
withdraw guilty plea. This argument is unavailing. The burden rests on the defendant to
demonstrate a justification for withdrawal of the guilty plea. State v. Stone, 147 Idaho 330, 333,
208 P.3d 734, 737 (Ct. App. 2009). Citing this Court’s decision in Stone, Peters asserts that,
because he raised allegations of coercion that were supported by facts that were not found in the
record, he was entitled to an evidentiary hearing on the merits of his motion. However, in Stone,
this Court held that, if a motion to withdraw guilty plea turns upon alleged events that occurred
outside the record that have not been stipulated to by the state, then an evidentiary showing is
required. Id. Such an evidentiary showing may be demonstrated by affidavit. Therefore, an
evidentiary hearing is not always required. In Stone, we upheld the district court’s denial of the
defendant’s motion to withdraw guilty plea, in part, because the defendant presented no evidence
in support of the motion, either in the form of affidavits or testimony. Id.
       Similarly, in this case, Peters presented no evidence in support of his motion to withdraw
his guilty plea. The record does not demonstrate that Peters presented sworn affidavits or any
other form of evidence.     Rather, Peters relied upon statements he made at sentencing and
unsworn letters he attached to his Rule 35 motion. While Peters claims on appeal that the district
court relied upon the letters in denying his motion to withdraw guilty plea, the district court did
not refer to the letters in its order. Instead, the district court relied primarily upon the plea
colloquy to contradict Peters’s claims of coercion and innocence. Finally, the record does not
demonstrate that Peters requested a hearing. Therefore, Peters has failed to show that the district
court abused discretion by denying his motion to withdraw guilty plea without an evidentiary
hearing.




                                                 6
                                              III.
                                        CONCLUSION
       Peters has failed to demonstrate that the district court imposed an excessive sentence.
Additionally, Peters failed to show that the district court abused its discretion in denying his
Rule 35 motion for reduction of his sentence. Finally, Peters did not establish that the district
court abused its discretion in denying his motion to withdraw guilty plea. Accordingly, Peters’s
judgment of conviction and sentence for trafficking in marijuana, the district court’s order
denying Peters’s Rule 35 motion, and the district court’s order denying Peters’s motion to
withdraw guilty plea are affirmed.
       Chief Judge LANSING and Judge GRATTON, CONCUR.




                                               7
