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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-13-0000059
                                                              15-JUN-2015
                                                              08:41 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                  ---o0o—


         STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

                                    vs.

         EDDIE A. GARCIA, Petitioner/Defendant-Appellant.


                             SCWC-13-0000059

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
            (CAAP-13-0000059; FC-CR. NO. 11-1-0288(4))

                              JUNE 15, 2015

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

             OPINION OF THE COURT BY RECKTENWALD, C.J.

           The central issue is whether the family court erred in

denying Defendant Eddie A. Garcia’s Motion to Withdraw his Plea

of No Contest before sentencing.

           Garcia was charged with continuous sexual assault of a
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minor under the age of fourteen, and abuse of a family or

household member.    Garcia initially pleaded not guilty, but

changed his plea pursuant to a plea agreement with the State of

Hawai#i.   Garcia agreed to plead no contest, and to serve twenty

years of imprisonment for continuous sexual assault and one year

for abuse, to run concurrently.       In turn, the State agreed to

remain silent at Garcia’s minimum term hearing before the Hawai#i

Paroling Authority (HPA).      The family court accepted the plea

agreement, found Garcia guilty as charged, ordered the

preparation of a pre-sentence investigation (PSI) report, and

scheduled Garcia’s sentencing hearing.

           The Deputy Prosecuting Attorney (Prosecutor) then

submitted a letter and three exhibits to the probation office for

inclusion in Garcia’s PSI report.         Prosecutor’s letter commented

on the significance of the exhibits and drew conclusions that

included recommendations relevant to sentencing.           For example,

the letter described Garcia as a “master manipulator” who avoided

responsibility for his “sexually predatory” actions, and

contended that there should be “no factors” which would weigh

against imprisonment and a “lengthy” list of factors supporting

imprisonment.    (Emphasis in original).

           Before sentencing, Garcia moved to withdraw his no

contest plea, arguing that Prosecutor’s submission constituted a

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breach of the plea agreement and was a fair and just reason to

withdraw his guilty plea because Prosecutor knew the letter and

exhibits would be transmitted to the HPA.         The parties eventually

stipulated that the submission would have been forwarded to the

HPA for its consideration at the minimum term hearing.            However,

the family court denied the motion to withdraw because Garcia

filed his motion before sentencing, and therefore the PSI report

containing Prosecutor’s submission could be intercepted before it

reached the HPA.    Although the family court denied Garcia’s

motion, it ordered that the PSI report be stricken from the

record and kept under seal, ordered that a new PSI report be

prepared by a probation officer other than the one who prepared

the first report, and prohibited the State from communicating

with the probation officer responsible for preparing the new PSI

report.

           Pursuant to Garcia’s plea, the family court convicted

Garcia of the two counts and sentenced him to twenty years of

incarceration for continuous sexual assault and one year for

abuse of a family or household member, to run concurrently.             On

appeal, the Intermediate Court of Appeals (ICA) concluded that

the family court did not err in denying Garcia’s motion to

withdraw his no contest plea.

           We conclude that Garcia’s motion should have been


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granted.     Prosecutor’s submission of the letter and exhibits,

despite the plea agreement, was a fair and just reason for

Garcia’s withdrawal of his plea, and the State had not relied

upon the guilty plea to its substantial prejudice.             Accordingly,

we vacate the family court’s Findings and Order and the judgment

on appeal of the ICA, and remand the case to the family court for

further proceedings consistent with this opinion.

                               I.   Background

A.     Family Court Proceedings

             On August 24, 2010, a Maui High School administrator

contacted the Maui Police Department (MPD) because a fifteen-

year-old student reported being sexually assaulted by her father.

Later that day, after MPD detectives interviewed the student and

her mother, MPD identified Garcia, the student’s father, arrested

him, took him into custody, and served him with a restraining

order.    Garcia confessed to hitting his daughter (Daughter) with

plastic coat hangers on the backs of her legs, and later

confessed in detail to sexually abusing Daughter on a regular

basis since she was ten years old.          Garcia confessed that he

started engaging Daughter in sexual touching when she was ten

years old, and started having sexual intercourse with her when

she was around twelve years old.          He confessed that at first he

had sexual intercourse with her only once per week, but that the

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frequency increased over time to four to six times per week.

            Garcia was charged with one count of Continuous Sexual

Assault of a Minor Under the Age of Fourteen Years in violation

of HRS § 707-733.6,1 and one count of Abuse of a Family or

Household Member in violation of HRS § 709-906.2

            Garcia pleaded not guilty, but later entered a no

contest plea pursuant to a plea agreement.          Under the plea

agreement, Garcia agreed to plead no contest, and to serve twenty

years of imprisonment for continuous sexual assault and one year

for abuse, to run concurrently.        The State, in turn, agreed to

“remain silent at the minimum term hearing [before the HPA].”

            During the change-of-plea colloquy, the family court

asked Garcia several questions to determine whether he understood

the terms of the plea agreement.3          When the family court asked

Garcia if he could speak, read, write, and understand English,


      1
            HRS § 707-733.6 provides, in relevant part:

            (1) A person commits the offense of continuous sexual
            assault of a minor under the age of fourteen years if
            the person:
            (a) Either resides in the same home with a minor under
            the age of fourteen years or has recurring access to
            the minor; and
            (b) Engages in three or more acts of sexual
            penetration or sexual contact with the minor over a
            period of time, while the minor is under the age of
            fourteen years.
      2
            Under HRS § 709-906, it is “unlawful for any person . . . to
physically abuse a family or household member[.]”
      3
            The Honorable Richard T. Bissen, Jr. presided.

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and whether he understood the terms of the plea agreement, Garcia

responded in the affirmative.       Garcia also responded in the

affirmative when the court asked if he understood that by

entering his plea of no contest, he was giving up his

constitutional rights to plead not guilty and have a jury trial.

When the family court asked Garcia if he understood that he would

receive a twenty-year sentence and thus was not eligible for

probation, Garcia again responded in the affirmative.            The family

court asked Garcia if he understood that Prosecutor agreed to

“remain silent at the minimum term hearing[,]” to which Garcia

responded in the affirmative; the family court did not ask Garcia

to explain his interpretation of the meaning of Prosecutor’s

promise.   The family court accepted Garcia’s no contest plea,

informed the parties that the court would sentence Garcia in

accordance with the terms of the plea agreement, found Garcia

guilty on both counts, ordered the preparation of a PSI report,

and on June 1, 2012, scheduled Garcia’s sentencing hearing for

August 1, 2012.

           In late June and early July of 2012, Garcia’s family

and friends submitted letters in support of Garcia to Adult

Client Services (ACS) for inclusion in Garcia’s PSI report.             In a

letter dated July 1, 2012, Daughter asked the court to consider

lessening Garcia’s sentence because her mother was struggling to


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take care of four children and needed Garcia’s financial support.

           On July 23, 2012, Prosecutor submitted a letter and

three accompanying exhibits to ACS for inclusion in Garcia’s PSI

report.   Prosecutor’s letter explained that the State understood

that Garcia’s sentence was predetermined by the plea agreement,

but nevertheless wanted “to point out some aggravating

factors[.]”

           Prosecutor’s letter described the contents and

commented on the significance of the three exhibits submitted to

ACS along with the letter.      The letter drew attention to Garcia’s

confession, which was attached as Exhibit 1, that Garcia began

using Daughter as his sexual partner when she was ten years old

and continued doing so “on an almost daily basis” until her

friends reported the conduct when Daughter was fifteen.            The

letter pointed out that the types and frequency of sexual abuse

recounted by Garcia in his confession matched Daughter’s

statements.   The letter stated that even after Garcia confessed,

he “took every available route to avoid having to take

responsibility for his aberrant and sexually predatory actions.”

(Emphasis in original).      The Prosecutor added that Garcia

“pretended to be this caring parent who wanted to make it easy on

his daughter and accept responsibility from the beginning with

the police, but true to his real character, that did not last


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long.”   The letter continued by stating that Garcia “soon pulled

the ‘I don’t speak English card,’” and requested an interpreter

for trial even though the record, which included a letter written

by Garcia in a prior case and which Prosecutor attached as

Exhibit 2, demonstrated that Garcia had an “excellent level of

command of English[.]”      Prosecutor argued that Garcia

“demonstrated that he is a master manipulator, who cannot be

trusted.”    (Emphasis in original).

            Prosecutor’s letter further noted that a letter written

by Daughter, which was attached as Exhibit 3, revealed that

Garcia violated the August 24, 2010 restraining order when he

asked his wife to ask Daughter to write him a letter about her

feelings.    Prosecutor stated that “[o]f course” this was a

violation of the restraining order, but this violation was not

charged, and this violation demonstrated that Garcia was “still

manipulating everyone.”

            Prosecutor’s letter concluded that the three exhibits

revealed that Garcia caused his family, and especially Daughter,

to experience severe hardships.

            The letter asserted that “[g]iven the facts of this

case, . . . Garcia should have a lengthy list of factors

supporting imprisonment[,]” and “that there should be no factors

listed to withholding imprisonment.”        (Emphasis in original).


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            On July 25, 2012, Garcia’s defense counsel moved to

withdraw as counsel, because Garcia asserted to the court that

the defense counsel tricked him into changing his plea.             At the

hearing on the motion to withdraw, Garcia testified that he

wanted a new attorney to help him file a motion to withdraw his

no contest plea.     Prosecutor opposed the defense counsel’s motion

to withdraw, arguing that Garcia’s allegation that he was tricked

was an attempt to manipulate the system.          The family court

granted the motion, but clarified that it was doing so only

because it found that the relationship between Garcia and his

public defender could not be repaired.          The family court

explained that a new attorney would be appointed to appear at

sentencing, but not to help Garcia file a motion to withdraw his

plea because Garcia had already changed his plea and been found

guilty.

            On September 13, 2012, with the assistance of a new

attorney (Dunn),4 Garcia filed a motion to withdraw his no

contest plea on the grounds that:          “(1) the State violated its

plea agreement with [Garcia]; and (2) [Garcia’s] No-Contest plea

was not voluntarily made.”       Garcia explained in a declaration



      4
            Christopher M. Dunn, Esq., a court-appointed private attorney,
represented Garcia for the filing of his motion to withdraw his no contest
plea. The motion was filed along with a declaration by Garcia and a
memorandum of law.

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that Dunn informed him that Prosecutor breached the plea

agreement by submitting a “scathing letter with attached

exhibits” for inclusion in the PSI report, because Prosecutor

knew that the submission would be transmitted to the HPA.             He

argued this constituted a fair and just reason for withdrawal and

that the State had not relied upon his guilty plea to its

substantial prejudice.      Garcia also explained that he told his

public defender that he did not want to enter into the plea

agreement because he did not understand its terms, but entered

into the agreement nonetheless because his public defender told

him “that failure to change [his] plea as scheduled would be

perceived as an insult to the Court[.]”

            In opposition to Garcia’s motion to withdraw his no

contest plea, the State argued that Garcia did not meet his

burden to show a fair and just reason for withdrawal of his plea,

in pertinent part because Prosecutor’s “letter complies with the

plea agreement and does not make any recommendation for a minimum

term to the [HPA].”     The State also argued that if the court

found that Prosecutor’s letter did breach the plea agreement,

“the remedy would be to strike the letter from the PSI [report]

rather than allow the Defendant to withdraw his plea of no-

contest.”    Finally, the State argued that the record established

that Garcia understood the terms of the plea agreement and that


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his plea was voluntary.

           On November 14, 2012, the State filed a declaration of

Prosecutor in support of the State’s memorandum in opposition to

Garcia’s motion to withdraw his no contest plea (Declaration).

In the Declaration, Prosecutor stated that the plea agreement

related only “to the minimum term hearing, not to any sentencing

matters,” and that the State had “every right to make comments

for inclusion in the [PSI] report which are relevant to

sentencing.”    Prosecutor also declared that “under the plain

language analysis, there simply was no violation of the plea

agreement[.]”

           At the hearing on Garcia’s motion to withdraw his no

contest plea and sentencing, the family court accepted the

parties’ stipulation that PSI reports are forwarded to the HPA

after sentencing and are available for the HPA’s consideration at

minimum term hearings, and took judicial notice of the PSI report

containing Prosecutor’s submission.

           Also at the hearing, Dunn argued that Prosecutor’s

letter was a breach of the plea agreement because it was intended

for the HPA.    Dunn also argued that because the State “breached

the only meaningful promise that [it] made in [its] plea

agreement[,]” Garcia met his burden to present a fair and just

reason for granting his motion to withdraw his no contest plea.


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Dunn further argued that Garcia’s plea was not voluntary because

it was made in response to the public defender’s comment that the

judge would be upset if Garcia refused the plea offer and thus

Garcia entered the plea agreement out of fear of reprisal.

           In response, the State argued that there was no breach

of the plea agreement, and even if a breach occurred, the family

court should deny Garcia’s motion and either:          (1) strike just

Prosecutor’s submission if the court determines that the

submission did not influence the probation officer’s conclusion

in the PSI report that there were “zero mitigating circumstances

and eighteen circumstances for prison[,]” or (2) strike the

entire PSI report “and start all over again[.]”           The State also

argued that the record reveals that Garcia “voluntarily,

knowingly, and intelligently entered into his change of plea.”

           The family court engaged Dunn in the following

discussion:
           THE COURT: But on that issue alone of the letter
           being contaminating -- somehow contaminating the
           Court, I will say that it may have had an influence on
           this, perhaps. And that it would likely have an
           influence on [HPA] if it got there, but that it has
           not. And that the Court can order that a new [PSI
           report] be prepared without the influence of the
           State’s letter.
                       And, in fact, that is what the Court would
           intend to do. Does that satisfy, at least, that issue
           that the defense has argued?

           MR. DUNN: I agree with you that, that is a potential
           remedy that the Court has.

           . . .


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        MR. DUNN: . . . I’m not conceding it, but let’s call
        it an attempted breach.

        THE COURT:   Okay.

        MR. DUNN: So an attempted breach maybe doesn’t rise
        to manifest injustice, but isn’t it a fair and just
        reason to take it back when the very person that
        you’re bargaining with --

        THE COURT:   Right.

        MR. DUNN: -- has attempted to undermine the only
        meaningful provision in your agreement? So that’s a
        fair and just reason to take this thing back.

        THE COURT: I’m not making a finding that they have
        undermined.

        MR. DUNN:    They attempted to.

        THE COURT: I’m not even agreeing that they have
        attempted to undermine. They have obviously put in a
        letter that they could have said -- could have made
        all these arguments at the sentencing anyway.

        MR. DUNN:    Right.

        THE COURT: That would become a record. Now, we both
        know the transcripts are not ordinarily ordered by the
        [HPA]. They’re only received if one of the two
        parties in this case ordered them. I couldn’t imagine
        either party doing that.

        MR. DUNN:    Well, it would be a breach by the State --

        THE COURT:   I can’t imagine the defense would do that.

        MR. DUNN:    Right.

        THE COURT: But it’s public record. It can be
        reported in a variety of ways, to the press, if
        somebody’s ordering transcripts, whatever. The victim
        can come forward. The victim can share whatever the
        victim wishes to share at the hearing.
                    So I’m still simply saying there is a
        remedy, however -- whatever intentions either side
        wants to argue was attached to this letter, the fact
        is that there’s been no breach is the Court’s
        findings. There has been no breach.
                    The Court can prevent this from going
        to -- and honoring the agreement that was bargained
        for by both sides, and that is to strike the letter
        and to order that a new [PSI report] be prepared[.]



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           The family court then concluded that based on the

record and the hearings, Garcia lacked credibility and thus his

argument that he did not understand or voluntarily accept the

terms of the plea agreement was “not believable.”           The court

explained that under the terms of the plea agreement:
           [Garcia] was going to be able to have a clear argument
           to make at the minimum term hearing without the State
           being there or making a suggestion. That was the
           benefit in this case. And he can still get that
           benefit if the Court orders a new [PSI report]. So
           there was something to be gained.

           What also turned this case was a motion in limine of
           the voluntariness hearing. The Court ruled that the
           statements he made and the full confession that he
           gave in these cases were voluntarily made. And
           sometimes defendants don’t want facts to come out
           publicly that are embarrassing. . . .

           [D]efense seems to argue that the only explanation for
           himself accepting this deal was his attorney forcing
           him into it, and I don’t believe that to be true.

           The family court then denied Garcia’s motion to

withdraw his no contest plea.       The family court also ordered that

the PSI report containing Prosecutor’s submission be stricken

from the record, stated that the PSI report would continue to be

kept under seal, ordered that a new PSI report be prepared by a

probation officer other than the one who prepared the first PSI

report, and prohibited the State from communicating with the

probation officer responsible for preparing the new PSI report.

           On January 8, 2013, the family court entered its

“Findings and Order Denying Defendant’s Motion to Withdraw No

Contest Plea” (Findings and Order).        The Findings and Order

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includes the following findings:
             1. The July 23, 2012, letter written by [Prosecutor]
             addressed to Senior Probation Officer, . . . was
             incorporated into [Garcia’s PSI] Report . . . ;

             2. [Garcia] has not been sentenced and therefore, the
             [PSI Report] has not been used by the Court, nor has
             the [PSI Report] been sent to [HPA], for its
             consideration in setting a minimum term in this case,
             HENCE, the Department of the Prosecuting Attorney has
             not made any indirect minimum term arguement [sic] to
             the [HPA];

             3. The State of Hawai#i, did not breach the plea
             agreement between the parties, by attempting to
             indirectly communicate with the [HPA];

             The Findings and Order also found that Garcia was not

credible, and his argument that his no contest plea was not

voluntary was unpersuasive.         On January 18, 2013, the family

court entered its Judgment finding Garcia guilty as charged and

sentencing Garcia to twenty years of imprisonment for the sexual

assault of Daughter, and one year for the abuse of Daughter, to

run concurrently.      Garcia timely appealed.

B.     ICA Appeal

             Garcia argued that the family court erred in denying

his motion to withdraw his plea because pursuant to Prosecutor’s

agreement to “remain silent at the minimum term hearing” before

the HPA, the “prosecution was not entitled to make any more

factual assertions or comments on the record.”             Garcia also

argued that Prosecutor breached her “promise to ‘remain silent’”

when Prosecutor attempted to circumvent the terms of the plea


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agreement by “writing an inflammatory letter headed to the HPA.”

Garcia explained that the agreement was breached when “the letter

became part of the [PSI] report” because after sentencing, the

HPA “receives the [PSI] report before determining an inmate’s

minimum term.”

           Garcia further argued that the “family court’s finding

that no breach occurred because the letter was never submitted to

the HPA makes no sense.”      Garcia explained that his “timely

objection to the letter does not change the simple fact that the

prosecution broke its promise.”       He noted that because he moved

for withdrawal of his guilty plea before sentencing, the family

court should have granted the motion if he presented a fair and

just reason for withdrawal and the State had not relied upon his

guilty plea to its substantial prejudice.         And finally, Garcia

argued that because the family court erred in concluding that

Prosecutor did not breach the plea agreement, it also erred in

failing to consider whether Garcia was entitled to his preferred

choice of remedies for the alleged breach -- withdrawal of his no

contest plea and a jury trial.

           In its answering brief, the State argued that the

prosecution did not breach the plea agreement because the PSI

report containing Prosecutor’s submission did not reach the HPA.

The State also argued that the prosecution did not breach the


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spirit of the plea agreement because Garcia suffered no prejudice

as a result of Prosecutor’s submission.          The State further argued

that even if the prosecution did breach the spirit of the plea

agreement, the breach did not violate Garcia’s fundamental rights

because Prosecutor’s submission did not reach the HPA and thus

the HPA was not influenced by the submission.

            In reply, Garcia argued that “[i]t is irrelevant

whether the HPA received the offensive letter” because the

agreement induced Garcia to agree “to a twenty-year prison

sentence and [to give] up his constitutional right to a jury

trial.”   Garcia also argued that the prosecution has “no

authority supporting its position that a breach can somehow be

determined by ignoring the language of the agreement and

prosecutor’s subsequent conduct and focusing only on the results

of her conduct.”     Garcia explained that the State’s approach

affords Garcia “no opportunity . . . to file a motion to withdraw

his no-contest plea prior to sentencing” and thus is inconsistent

with Rules 11(f)(2)5 and 32(d)6 of the Hawai#i Rules of Penal

      5
            Rule 11(f)(2) (2015) of Hawai#i Rules of Penal Procedure (HRPP)
provides, in relevant part: “Failure by the prosecutor to comply with [a
plea] agreement shall be grounds for withdrawal of the plea.”
      6
            HRPP Rule 32(d) (2015) provides:

            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

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Procedure (HRPP), and with the “liberal approach” taken by this

court when a defendant makes a motion to withdraw his plea before

sentencing.

            In a Summary Disposition Order (SDO), the ICA held that

the “family court correctly found the State did not breach the

plea agreement,” and in doing so, implicitly agreed with the

family court’s conclusion that a breach did not occur because the

PSI report containing Prosecutor’s letter and accompanying

exhibits did not reach the HPA.        The ICA declined to address

Garcia’s other contentions because they were “premised upon

Garcia’s contention that the State breached the parties’ plea

agreement.”    We accepted Garcia’s timely application for writ of

certiorari.

                        II.   Standards of Review

            This court evaluates a defendant’s motion to withdraw

his plea “under either of two established principles.”               State v.

Merino, 81 Hawai#i 198, 223, 915 P.2d 672, 697 (1996) (quoting

State v. Jim, 58 Haw. 574, 574-75, 574 P.2d 521, 521-22 (1978)).



            imposition of sentence, shall set aside the judgment
            of conviction and permit the defendant to withdraw the
            plea. At any later time, a defendant seeking to
            withdraw a plea of guilty or nolo contendere may do so
            only by petition pursuant to Rule 40 of these rules
            and the court shall not set aside such a plea unless
            doing so is necessary to correct manifest injustice.

(Emphasis added).

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           Where the request is made after sentence has been
           imposed, the “manifest injustice” standard is to be
           applied. But where the motion is presented to the
           trial court before the imposition of sentence, a more
           liberal approach is to be taken, and the motion should
           be granted if the defendant has presented a fair and
           just reason for his request and the State has not
           relied upon the guilty plea to its substantial
           prejudice. What the manifest injustice rule seeks to
           avoid is an opportunity for the defendant to test the
           severity of sentence before finally committing himself
           to a guilty plea. But the risk of prejudice to the
           State and to the efficient administration of criminal
           justice is much less apparent where the withdrawal is
           requested before final judicial action is taken on the
           defendant's plea.

Jim, 58 Hawai#i at 576, 574 P.2d at 522-23 (citations and

quotations omitted).

           “The denial of an HRPP [Rule] 32(d) motion to withdraw

a plea of nolo contendere, or ‘no contest,’ prior to the

imposition of sentence[,] is . . . reviewed for abuse of

discretion.”   Merino, 81 Hawai#i at 211, 915 P.2d at 685.           A

trial court abuses its discretion when it “clearly exceed[s] the

bounds of reason or has disregarded rules or principles of law or

practice to the substantial detriment of a party litigant.”              Id.

                            III.   Discussion

           Because Garcia moved to withdraw his guilty plea before

sentencing, this court must determine whether Prosecutor’s

submission of the letter and three exhibits for inclusion in

Garcia’s PSI report constitutes a fair and just reason for his

request to withdraw his guilty plea, and whether the State relied

on the plea to its substantial prejudice.         See Jim, 58 Hawai#i at

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576, 574 P.2d at 522-23.

           Accordingly, we must consider the effect of

Prosecutor’s submission in light of the State’s agreement to

“remain silent at the minimum term hearing [before the HPA].”               In

exchange for this agreement, Garcia agreed to forego his right to

a jury trial and to serve concurrent sentences of twenty years

and one year.

           Garcia argues that “it should have been obvious to the

prosecution that the PSI report was not for the sentencing

court’s benefit, but for the HPA.”        Garcia further argues that

the State’s agreement to “remain silent at the minimum term

hearing [before the HPA]” prohibited both communications at the

minimum term hearing and communications that would reach the HPA

prior to the hearing.     Garcia also argues that if the plea

agreement is at all ambiguous, its meaning must be construed in

Garcia’s favor under State v. Nakano, 131 Hawai#i 1, 313 P.3d 690

(2013).   And, Garcia implicitly argues that even if Prosecutor

did not breach the literal terms of the plea agreement, the

submission was a breach of the spirit of the plea agreement.

           The State did not file a response to Garcia’s

application, but argued in its answering brief in the ICA that

Prosecutor’s submission was not a breach because it did not reach

or influence the HPA, and because Garcia suffered no prejudice as


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a result of Prosecutor’s submission.        The State also conceded

that under Hawai#i law, the State cannot attempt to accomplish

indirectly what it had promised not to do directly.

           It is well settled in this jurisdiction that “[w]hen a

plea rests in any significant degree on a promise or agreement of

the prosecutor, so that it can be said to be part of the

inducement or consideration [for the plea], such promise must be

fulfilled.”   Nakano, 131 Hawai#i at 7, 313 P.3d at 696

(quotations omitted) (emphasis in original) (citing Santobello v.

New York, 404 U.S. 257, 262 (1971)); see also State v. Adams, 76

Hawai#i 408, 414, 879 P.2d 513, 519 (1994) (“It is well settled

that the terms of a plea agreement, which serve as the inducement

for entering a plea, must be fulfilled.”) (citing State v. Costa,

64 Haw. 564, 566, 644 P.2d 1329, 1331 (1982), and Santobello, 404

U.S. at 262); Yoon, 66 Haw. at 347, 662 P.2d at 1115 (holding

that due process requires that the State fulfill its end of the

bargain if the defendant’s plea “rested in any significant degree

on a promised resolution”) (citing Santobello, 404 U.S. at 262).

           When the State enters a plea agreement, “the liberty of

the defendant[,] . . . the honor of the government, public

confidence in the fair administration of justice, and the

efficient administration of justice[,]” are all at stake.             People

v. Sanders, 191 Cal. App.3d 79, 87 (Cal. Ct. App. 1987)


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(quotation marks and brackets omitted).         These concerns are

heightened given the prevalence of plea bargaining in the

resolution of cases.     Indeed, plea bargaining “is not some

adjunct to the criminal justice system,” in some sense “it is the

criminal justice system.”      United States v. Kentucky Bar Assoc.,

439 S.W.3d 136, 140 (Ky. 2014) (emphasis in original) (quoting

Missouri v. Frye, 132 S.Ct. 1399, 1407 (2012)).           As one court has

noted, the integrity of a plea agreement is a serious matter

because
           [i]f a defendant cannot rely upon an agreement made
           and accepted in open court, the fairness of the entire
           criminal justice system would be thrown into question.
           No attorney . . . could in good conscience advise his
           client to plead guilty and strike a bargain if that
           attorney cannot be assured that the prosecution must
           keep the bargain and not subvert the judicial process
           through external pressure whenever the occasion
           arises.

State v. Tourtellotte, 88 Wash.2d 579, 584 (1977); see United

States v. Peglera, 33 F.3d 412, 414 (4th Cir. 1994) (“Because a

government that lives up to its commitments is the essence of

liberty under law, the harm generated by allowing the government

to forego its plea bargain obligations is one which cannot be

tolerated.”).

           Additionally, if the integrity of plea agreements is

not enforced, defendants may lose trust and confidence in the

defense counsel who recommended the plea agreement.            This outcome

would directly undercut the attorney-client relationship.             See

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State v. Gaylord, 78 Hawai#i 127, 141, 890 P.2d 1167, 1181 (1995)

(the attorney-client relationship requires “the highest degree of

trust and confidence”).

           Prosecutor’s submission to the ACS was inconsistent

with Prosecutor’s promise to “remain silent at the minimum term

hearing” before the HPA.      There is no dispute that Prosecutor

submitted the letter and three exhibits to ACS for inclusion in

Garcia’s PSI report even though Prosecutor knew the family court

planned to sentence Garcia to a twenty-year term in accordance

with the plea agreement.      Moreover, the parties stipulated that

the PSI report would have been forwarded to the HPA after

sentencing and that the report would have been available for

consideration as part of the minimum term hearing.

           This is not a situation in which the State

inadvertently shared information that it was prohibited from

sharing.   Rather, the eventual dissemination of the letter to the

HPA would be a predictable result of Prosecutor’s actions.

           Prosecutor’s submission contained not just factual

information that Prosecutor might reasonably be expected to

convey to the sentencing court, see HRS § 706-702 (a pre-sentence

report “shall include,” e.g., criminal history, economic status,

and information regarding impact on the victim), but also drew

conclusions from this factual information and presented argument


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attacking Garcia’s character.       For example, along with

permissibly submitting the transcript of Garcia’s confession,

Prosecutor argued:     that Garcia “is a master manipulator who

cannot be trusted,” that “Garcia should have a lengthy list of

factors supporting imprisonment” and “no factors” for withholding

imprisonment,” that Garcia “took every available route to avoid

having to take responsibility for his aberrant and sexually

predatory actions,” that Garcia “pretended to be this caring

parent who wanted to make it easy on his daughter and accept

responsibility from the beginning with the police, but true to

his real character, that did not last long,” and that Garcia

“soon pulled the ‘I don’t speak English card.’”           (Emphasis in

original).

           Although the family court’s intervention protected

Garcia from being prejudiced at the HPA, it could not undo the

impact on Garcia’s perception of the integrity of the system and

the trustworthiness of the government and his own counsel.

           The State now concedes:        “If that letter had gotten

into the hands of the . . . HPA I would take the position yes

that would be a breach.”      Oral Argument at 33:34-33:52, State v.

Garcia, No. SCWC-13-0000059, available at

http://state.hi.us/jud/oa/14/SCOA_090414_13_059.mp3.            Moreover,

the State concedes that but for the filing of Garcia’s motion and


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the family court’s intervention, Prosecutor’s submission would

have reached the HPA.

           The parties have focused much of their analysis on

whether the Prosecutor breached the plea agreement, given the

remedial steps taken by the family court.         However, we need not

resolve the question of whether a breach was consummated.

Rather, in motions to withdraw a plea prior to sentencing,

appellate courts take a liberal approach and apply the “fair and

just” standard.    Jim, 58 Haw. at 576, 574 P.2d at 522-23; see

State v. Gomes, 79 Hawai#i 32, 36, 897 P.2d 959, 963 (1995);

Adams, 76 Hawai#i at 411, 879 P.2d at 516; Merino, 81 Hawai#i at

223, 915 P.2d at 697.
           [T]he motion should be granted if the defendant has
           presented a fair and just reason for his request and
           the State has not relied upon the guilty plea to its
           substantial prejudice.

Jim, 58 Hawai#i at 576, 574 P.2d at 522-23.

           For the reasons discussed above, Prosecutor’s

submission constituted a “fair and just” reason for Garcia’s

request to withdraw his plea.       To the extent that the agreement

was ambiguous by not expressly prohibiting Prosecutor from

submitting argumentative material in the PSI that would violate

the agreement if conveyed directly to the HPA, the ambiguity must

be construed against the State.       See Nakano, 131 Hawai#i at 7,

313 P.3d at 696.    Put another way, if the State wanted to reserve

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the right to present such argument to the court as part of the

PSI, it should have expressly said so in the agreement.

           Further, the State did not satisfy its burden, Gomes,

79 Hawai#i at 40, 897 P.2d at 967, to demonstrate substantial

prejudice if the motion to withdraw the plea was granted.

           Accordingly, the family court abused its discretion in

denying Garcia’s motion to withdraw his guilty plea.

                             IV.    Conclusion

           For the foregoing reasons, we vacate the judgment on

appeal of the ICA and the family court’s January 8, 2013 Findings

and Order, and remand to the family court for further proceedings

consistent with this opinion.

Benjamin E. Lowenthal              /s/ Mark E. Recktenwald
for petitioner
                                   /s/ Paula A. Nakayama
Richard K. Minatoya
for respondent                     /s/ Sabrina S. McKenna

                                   /s/ Richard W. Pollack

                                   /s/ Michael D. Wilson




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