                 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 39869

STATE OF IDAHO,                                   )     2013 Unpublished Opinion No. 472
                                                  )
         Plaintiff-Respondent,                    )     Filed: April 30, 2013
                                                  )
v.                                                )     Stephen W. Kenyon, Clerk
                                                  )
DOUGLAS JAMES STEINEMER, aka                      )     THIS IS AN UNPUBLISHED
STEINEMORE aka HOLSOPPLE,                         )     OPINION AND SHALL NOT
                                                  )     BE CITED AS AUTHORITY
         Defendant-Appellant.                     )
                                                  )

         Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
         County. Hon. Timothy Lee Hansen, District Judge.

         Order denying motion to withdraw guilty plea, affirmed.

         Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for appellant.           Dennis A.
         Benjamin argued.

         Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
         Attorney General, Boise, for respondent. John C. McKinney argued.
                   ________________________________________________
PERRY, Judge Pro Tem
         Douglas James Steinemer appeals from the judgment of conviction entered following the
denial of his motion to withdraw his guilty plea. For the reasons set forth below, we affirm.
                                                 I.
                                         BACKGROUND
         On June 28, 2003, Steinemer kidnapped a woman in Mountain Home at knifepoint,
bound her hands, covered her eyes and mouth with tape, and transferred her to the cab of a semi-
truck.    Steinemer and another individual, later identified as Hans Michael Holsopple,
Steinemer’s biological father, proceeded to drive from Mountain Home toward the Oregon-Idaho
border, stopping multiple times to rape the victim who was being held in the sleeper area of the
truck’s cabin. The two men eventually released the victim, and she was able to contact a friend
who took her to the hospital.       DNA samples were collected as part of a sexual assault


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examination, and the DNA profiles of two unknown individuals were entered into a national
DNA database. In 2009, police were notified that Steinemer’s DNA profile, which apparently
had been recently added to the national database as part of an unrelated Florida case, appeared to
match the profile of one of the victim’s previously unidentified attackers.       Steinemer was
arrested in February 2010. After being advised of his Miranda rights, Steinemer admitted to
kidnapping and raping the victim. 1
       Steinemer was indicted on one count of kidnapping in the first degree and three counts of
rape. Pursuant to a plea agreement, Steinemer pleaded guilty to kidnapping in the first degree
and to one count of rape, and the remaining rape charges were dismissed. Approximately six
weeks later, Steinemer filed a motion to withdraw his guilty plea. He asserted that, prior to
pleading guilty, he had not seen or heard the recording of a police interview with the victim in
which the victim made statements that, according to Steinemer, supported a defense to the
crimes, and that he would not have pleaded guilty if he had seen the recorded interview. After a
hearing, the district court denied Steinemer’s motion to withdraw his guilty plea. The district
court imposed concurrent unified sentences of thirty years with thirteen-year determinate terms.
Steinemer appeals.
                                               II.
                                          ANALYSIS
       Idaho Criminal Rule 33(c) governs the withdrawal of guilty pleas. 2 Whether to grant a
motion to withdraw a guilty plea is left to the sound discretion of the district court, and such
discretion should be liberally applied. State v. Arthur, 145 Idaho 219, 222, 177 P.3d 966, 969
(2008). The defendant bears the burden of showing that withdrawal of the plea should be
allowed. State v. Dopp, 124 Idaho 481, 485, 861 P.2d 51, 55 (1993). Rule 33(c) distinguishes
between pleas made prior to and after sentencing, exacting a less rigorous burden for presentence
motions. Dopp, 124 Idaho at 485, 861 P.2d at 55. To withdraw a guilty plea prior to sentencing,



1
       See Miranda v. Arizona, 384 U.S. 436 (1966).
2
        Idaho Criminal Rule 33(c) states: “A motion to withdraw a plea of guilty may be made
only before sentence is imposed or imposition of sentence is suspended; but to correct manifest
injustice the court after sentence may set aside the judgment of conviction and permit the
defendant to withdraw defendant’s plea.”


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the defendant need only show a “just reason” for withdrawing the plea. Id. However, even when
the motion is presented before sentencing, if it occurs after the defendant has learned of the
content of the presentence report or has received other information about the probable sentence,
the district court may temper its liberality by weighing the defendant’s apparent motive. Arthur,
145 Idaho at 222, 177 P.3d at 969, State v. Hocker, 115 Idaho 137, 139, 765 P.2d 162, 164 (Ct.
App. 1988). The failure to present and support a plausible reason will dictate against granting
withdrawal, even absent prejudice to the prosecution. Dopp, 124 Idaho at 485, 861 P.2d at 55.
       Steinemer filed his motion to withdraw his guilty plea before sentencing, but after he had
the opportunity to review the results of the psychosexual evaluation with counsel. Even if we
assume that it would have been appropriate for the district court to “temper its liberality” in these
circumstances, see State v. Hawkins, 115 Idaho 719, 722, 769 P.2d 596, 599 (Ct. App. 1989)
aff’d, 117 Idaho 285, 787 P.2d 271 (1990), the district court did not do so. Instead, the district
court determined that Steinemer had not met his burden under the most liberal “just reason”
standard. Thus, the critical question in this appeal is whether Steinemer’s assertion that he had
not seen or heard the recording of a police interview with the victim constitutes a just reason for
withdrawing the plea.
       The police conducted a recorded interview with the victim on June 29, 2003, during
which the victim made various statements that Steinemer asserts would support an affirmative
defense of duress or coercion. 3 In an affidavit, Steinemer states, “The statements of the victim I
am referring to are her articulating my father was in control and when she was asked whether I
was in fear for my life; she said no, because I was following his commands.” Although
Steinemer indicated, on a guilty plea advisory form, that he had reviewed the evidence provided




3
        This Court is unable to review the recordings because neither the audio nor the video of
the recorded interview is part of the appellate record. We note that on appeal, Steinemer argues
the victim’s demeanor, as opposed to or in addition to the content of her statements, would have
supported his defense, but that he did not make the same allegations in his affidavit. Instead, he
merely alleged that there was “material” he was unaware of that he identified as specific
statements made by the victim. Nothing in the affidavit indicated how the victim’s demeanor led
him to believe he would meet the elements of an affirmative defense.


                                                 3
during discovery including recordings, the district court determined that Steinemer had not, in
fact, viewed or listened to recordings of interview before he entered the guilty plea. 4
       However, it is undisputed that Steinemer was aware of the victim’s statements before he
pleaded guilty. Even if Steinemer did not view or listen to the recordings of the interview, the
same information was available to him through the police reports and the grand jury transcripts.
According to the police reports of the interview, the victim reported that Steinemer told her “he
had never done anything like this before” and that his father was “making him do this.” The
victim also made similar statements at the grand jury proceedings in which she indicated that
Steinemer’s father appeared to be controlling Steinemer, that Steinemer indicated several times
that “he was being told he had to be doing this,” and that he apologized several times during the
kidnapping and rapes.
       At a hearing on Steinemer’s motion to withdraw his guilty plea, Steinemer’s former
attorney testified that before Steinemer pleaded guilty, he and Steinemer discussed a possible
defense of duress or coercion approximately ten to twenty times based on information contained
in the police reports and grand jury transcripts. He continued to testify:
       [L]aw enforcement was onto this notion that somehow there were two people and
       that one person may have been in control. And that was something that came
       from the alleged victim in their initial interview.
              And frankly, the initial interview, law enforcement, they questioned the
       legitimacy of the alleged victim’s report. And they at length questioned her about
       what you perceived and that two people and what had happened. And this
       material from the alleged victim came up very organically and it came from the
       alleged victim.
              So when I discussed this with my client this was, from the defendant’s
       standpoint, very good information because it’s not a defense attorney prompting


4
        On appeal, Steinemer also asserts that his attorney did not tell him to truthfully answer
the question on the plea advisory asking whether he had reviewed all discovery materials, but did
tell him the judge would not accept his plea unless he indicated that he had reviewed the
discovery. Steinemer asserts that such advice constitutes “just cause” to withdraw the plea
because the court would not have accepted the guilty plea if he had indicated that he had not
reviewed all the discovery. To the extent that Steinemer is attempting to assert that counsel’s
failure to advise him to answer the question truthfully independently establishes “just cause” to
withdraw his guilty plea, this Court will not address the issue because, as conceded by counsel
during oral argument, Steinemer did not raise this issue below, see Leader v. Reiner, 143 Idaho
635, 637, 151 P.3d 831, 833 (2007), and because Steinemer has not provided any authority in
support of the argument. State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996).


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       them, it’s something that comes from the alleged victim. So that to me was very
       important.
               And that same information that was originally received by law
       enforcement was also presented in the grand jury and to a certain degree in the
       alleged victim’s participation in the codefendant’s sentencing. So there was a
       consistent threat of this defense theory that Mr. Steinemer wasn’t in control.

       Furthermore, during a recorded telephone call made from the jail on March 5, 2011, more
than four months before he pleaded guilty, Steinemer stated:
       When I go to court I’ll have them [the victim’s statements to the police] submitted
       so that way the jury can hear her saying that you know she knows I was in fear of
       my father, she knows I was not . . . or I was in control of my father and all that
       other good gossip stuff so that way the jury like understands I had nothing to do
       with it. That I didn’t plan it. All that bullshit.

       In the circumstances presented here--when Steinemer had not personally viewed or heard
the recording but was aware of the victim’s statements and discussed the possibility of using the
statements to support a defense of duress or coercion with his attorney multiple times before
pleading guilty--we cannot say that the district court abused its discretion by concluding that
Steinemer did not show just reason to withdraw his guilty plea based on his assertion that he had
not viewed or listened to the recordings of the police interview with the victim. The district
court’s order denying Steinemer’s motion to withdraw his guilty plea is affirmed.
       Chief Judge GUTIERREZ and Judge GRATTON CONCUR.




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