                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 38835

STATE OF IDAHO,                                    )     2012 Unpublished Opinion No. 566
                                                   )
          Plaintiff-Respondent,                    )     Filed: July 31, 2012
                                                   )
v.                                                 )     Stephen W. Kenyon, Clerk
                                                   )
MARKCUS RAYMOND MAY,                               )     THIS IS AN UNPUBLISHED
                                                   )     OPINION AND SHALL NOT
          Defendant-Appellant.                     )     BE CITED AS AUTHORITY
                                                   )

          Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
          Falls County. Hon. G. Richard Bevan, District Judge.

          Order denying motion to withdraw guilty pleas, affirmed.

          Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
          Appellate Public Defender, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
          Attorney General, Boise, for respondent.
                    ________________________________________________
LANSING, Judge
          Markcus Raymond May appeals from the judgment of conviction. He asserts that the
district court abused its discretion by denying his motion to withdraw his guilty pleas. We
affirm.
                                                  I.
                                          BACKGROUND
          May was charged with aggravated battery, Idaho Code §§ 18-903, 18-907(1)(b);
aggravated assault, I.C. § 18-901; burglary, I.C. § 18-1401; and eluding a peace officer, I.C.
§ 49-1404(2); and the State sought sentence enhancements for the use of a firearm during the
commission of a felony, I.C. § 19-2520. After two previous plea offers, the State and May
reached a plea agreement under which he would plead guilty to aggravated battery with a deadly
weapon enhancement and misdemeanor eluding a peace officer, in exchange for which the State
would dismiss the remaining counts. The State agreed to recommend a thirty-year unified

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sentence consisting of ten years determinate followed by twenty years indeterminate to be served
for aggravated battery, and a concurrent six months in county jail for misdemeanor eluding a
peace officer.
        On January 27, 2011, pursuant to the plea agreement, May pleaded guilty to aggravated
battery with a deadly weapon enhancement and misdemeanor eluding a peace officer.
Approximately six weeks after pleading guilty, May received conflict counsel. On April 22,
2011, conflict counsel filed a motion to withdraw May’s guilty pleas. Thereafter, a hearing was
held on May’s motion, at which May and his previous defense counsel testified.
        During the evidentiary hearing, May testified that he pleaded guilty only because of
threats and pressure from his attorney. He also testified that he had not understood that the plea
agreement involved a potential thirty-year prison sentence for the aggravated battery charge,
instead believing that a unified sentence of thirty years with ten years determinate meant that
twenty years of the sentence would be “erased,” leaving a ten-year sentence. May argued that he
should have been allowed to withdraw his guilty pleas for two reasons: (1) because he was
pressured into pleading guilty; and (2) that he did not understand legal terms in the plea
agreement describing the sentence.
        The district court found that May did not establish a “just reason” to withdraw his guilty
pleas and denied his motion to withdraw. May was sentenced to a unified term of thirty years
with ten years determinate for aggravated battery with a weapon enhancement, and six months in
jail for eluding.
        On appeal, May contends that the district court abused its discretion when it denied his
motion to withdraw his guilty pleas because he was pressured, he did not understand the terms of
the plea agreement, and the district court’s consideration of certain factors prescribed by a
federal circuit court was erroneous. May timely appeals.
                                                II.
                                           ANALYSIS
        Idaho Criminal Rule 33(c) authorizes trial courts to allow withdrawal of a guilty plea.
Whether to grant such a motion is within the discretion of the trial court. State v. Rodriguez, 118
Idaho 957, 959, 801 P.2d 1308, 1310 (Ct. App. 1990). When the motion is made before the
pronouncement of sentence, such discretion should be liberally exercised.          Id.   However,
presentence withdrawal of a guilty plea is not an automatic right; the defendant has the burden of


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showing a “just reason” exists to withdraw the plea. State v. Hawkins, 117 Idaho 285, 289, 787
P.2d 271, 275 (1990); State v. Ward, 135 Idaho 68, 72, 14 P.3d 388, 392 (Ct. App. 2000); State
v. McFarland, 130 Idaho 358, 362, 941 P.2d 330, 334 (Ct. App. 1997). We review the decision
of the trial court for an abuse of discretion. State v. Gardner, 126 Idaho 428, 432, 885 P.2d
1144, 1148 (Ct. App. 1994); Rodriguez, 118 Idaho at 959, 801 P.2d at 1310. When a trial court’s
discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry
to determine: (1) whether the lower court correctly perceived the issue as one of discretion;
(2) whether the lower court acted within the boundaries of such discretion and consistently with
any legal standards applicable to the specific choices before it; and (3) whether the lower court
reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d
1331, 1333 (1989). If a plea was not taken in compliance with constitutional due process
standards, which require that a guilty plea be made voluntarily, knowingly, and intelligently,
then the standard of “just reason” will be established as a matter of law. State v. Stone, 147
Idaho 330, 333, 208 P.3d 734, 737 (Ct. App. 2009). However, a constitutional defect in the plea
is not necessary in order to show a “just reason.” Ward, 135 Idaho at 72, 14 P.3d at 392; State v.
Henderson, 113 Idaho 411, 413, 744 P.2d 795, 797 (Ct. App. 1987). This Court will not
substitute its view for that of the trier of fact as to the credibility of the witnesses, the weight to
be given to the testimony, and the reasonable inferences to be drawn from the evidence. State v.
Flowers, 131 Idaho 205, 207, 953 P.2d 645, 647 (Ct. App. 1998).
A.     The District Court’s Application of the Six Factors from Moore
       In ruling on May’s motion to withdraw his guilty plea, the district court applied the six-
factor analysis recognized by the Fourth Circuit Court of Appeals in United States v. Moore, 931
F.2d 245, 248 (4th Cir. 1991) in considering a motion to withdraw a guilty plea under the
corresponding federal rule. The district court identified those factors as: whether the defendant
offered credible evidence that his plea was not knowing or voluntary, whether the defendant has
credibly asserted his legal innocence, whether there had been a delay between entering the plea
and the filing of a motion for withdrawal, whether the defendant had close assistance of
competent counsel, whether the withdrawal would cause prejudice to the government, and
whether it would inconvenience the court and waste judicial resources. The district court said
that “this court references [the six-factor analysis] as guidance regarding the legal standards
applicable to the choices before it” when examining Idaho Criminal Rule 33(c). May argues that


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the district court’s use of this six-factor analysis was an abuse of discretion. We disagree. Using
federal law is “both helpful and relevant to the resolution of these issues” in an attempt to
withdraw a guilty plea because “I.C.R. 33(c) is the same as Federal Rule 32(d).” Hawkins, 117
Idaho at 289, 787 P.2d at 275. See also State v. Ballard, 114 Idaho 799, 801 n.2, 761 P.2d 1151,
1153 n.2 (1988). In Rodriguez, 118 Idaho at 960, 801 P.2d at 1311, this Court noted that “our
Supreme Court has looked to certain federal cases for guidance in applying I.C.R. 33(c).” We
perceive no abuse of discretion here. The district court merely used the six-factor analysis to aid
in its exercise of discretion to determine whether May demonstrated a “just reason” for
withdrawal of his plea. Many of the Moore factors are the same or similar to factors that have
been approved in Idaho appellate decisions to determine whether a “just reason” was shown.
See, e.g., Dunlap v. State, 141 Idaho 50, 61, 106 P.3d 376, 387 (2004) (holding that the “trial
judge reasonably determined that the defendant was adequately advised by trial counsel on the
proposed plea agreement”); State v. Dopp, 124 Idaho 481, 486, 488, 861 P.2d 51, 56, 58 (1993)
(concluding that “a trial court must grant a motion to withdraw a guilty plea where such plea
does not admit the facts of the charge” and explaining that any minor inconvenience faced by the
trial court and the State should not give way to “fundamental and cherished rights merely to
avoid such a minor annoyance”); State v. Wyatt, 131 Idaho 95, 99, 952 P.2d 910, 914 (Ct. App.
1998) (concluding that the time of the motion “in relation to the overall procedural history of the
case is also a proper factor to consider and weigh in deciding whether to grant or deny a motion
to withdraw a guilty plea”); Henderson, 113 Idaho at 414, 744 P.2d at 798 (explaining that
“prejudice to the state is a factor in a court’s decision”). See also Hawkins, 117 Idaho at 288-89,
787 P.2d at 274-75. Thus, we see no reason why use of the six factors from a federal case as a
guide would be an abuse of discretion or be prohibited. The district court’s use of the six factors
from Moore was not outside the bounds of its discretion.
B.     “Just Reason”
       May filed his motion prior to sentencing and therefore must show a “just reason” to
withdraw his guilty pleas. He contends that pressure from his lawyer and lack of understanding
of the sentencing term of the plea agreement are “just reasons” and therefore the district court
abused its discretion by denying his motion.
       At the hearing, May testified that he felt pressure to agree to the pleas because his
defense counsel said May would receive a sixty-five-year sentence if he went to trial and that his


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trial counsel would not defend him at trial. Additionally, May said that he did not understand the
terms of the plea agreement, specifically, what the terms “unified” and “indeterminate” meant.
May’s former attorney testified and disputed May’s contentions.
       The district court found that May had knowingly and voluntarily pleaded guilty. The
court reviewed exhibits, including recorded phone calls, the plea agreements, the Rule 11
colloquy, and testimony offered by both May and his defense counsel. The court found May’s
testimony not credible and credited the testimony of his defense counsel. 1 The district court
concluded that May’s testimony given when he pleaded guilty “was accurate, given under oath,
and is relied upon by the court”; and the testimony given at the hearing on the motion to
withdraw the plea was “more the product of second-guessing, wishful thinking, and/or
dishonesty.” The district court explained that:
       Nothing in this record establishes that the plea entered by the defendant was
       anything but knowing, voluntarily, and intelligently given. The defendant has a
       college education. His testimony about not understanding legal terms or not
       understanding the nature of the agreement is simply unsupportable, and this court
       does not accept his testimony in this regard.

This Court gives deference to the trier of fact’s findings and assessment of the credibility of
witnesses. See State v. Perry, 139 Idaho 520, 525, 81 P.3d 1230, 1235 (2003); State v. Jones,
145 Idaho 639, 641, 181 P.3d 1247, 1249 (Ct. App. 2008).
       The record supports the district court’s findings that May was not pressured and his
acceptance of the plea agreement was made voluntarily and knowingly. The plea agreement
contained numerous questions involving whether May had been forced or threatened, all of
which May answered in the negative. In particular, the plea agreement asked, “[h]as your
attorney or anyone else forced or coerced you in any way into accepting this plea agreement,” in
which May responded “no.”         Additionally, May declined two previous plea offers, which
indicates that he knew he did not have to agree to the third plea offer. However, May said at the
plea hearing that he signed the third proffered agreement to take advantage of the offer because


1
        May argues that the district court erred by taking judicial notice of its own knowledge of
the attorney’s competence from the court’s observations of his work in other cases. Assuming
this was error, it does not call for reversal on appeal for, as detailed in this opinion, a multitude
of other evidence, including May’s own admissions in his guilty plea advisory form and at the
plea hearing, support the district court’s determination that May was being untruthful in his
testimony in support of the motion to withdraw his guilty plea.

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he did not want the State to withdraw its offer. This evidence supports the district court’s finding
that “[t]he defendant understood that no one, including his attorney, could make him plead
guilty.”
       May’s attorney testified that he met with May more than thirty times, including numerous
times to discuss the previous plea offers, and May acknowledged that he met with counsel three
times on the day of the plea agreement. He indicated that he knew there were differences
between the previous offers and the final plea agreement. May acknowledged on the plea form
that he answered the questions truthfully, that he understood all of the questions and answers,
discussed each question and answer with his attorney, and completed the form freely and
voluntarily. May’s guilty plea advisory form included the following:
               In this case the court will impose a “unified sentence” consisting of a fixed
       term (or portion) and an indeterminate term (or portion). If you are required to
       serve this sentence in the penitentiary you will not be eligible for parole until you
       have served the fixed portion and thereafter will be paroled only if the parole
       board so determines. Do you understand these principles?

To this question, May responded “yes.” Further, during the Rule 11 colloquy, May said “yes”
when asked if he knew he could serve thirty years without parole.
       Thus, the record supports the district court’s findings that May was not pressured, that he
understood the sentencing terms, and that his acceptance of the plea agreement was made
voluntarily and knowingly. Therefore, the district court did not abuse its discretion by denying
May’s motion to withdraw his guilty pleas.
                                                III.
                                         CONCLUSION
       The record supports the district court’s determination that May did not show a “just
reason” to withdraw his guilty pleas. Consequently, the district court acted within its discretion
when it denied May’s motion to withdraw his guilty pleas. Accordingly, the district court’s
order is affirmed.
       Judge GUTIERREZ and Judge MELANSON CONCUR.




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