               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 42316

STATE OF IDAHO,                                )    2016 Unpublished Opinion No. 352
                                               )
       Plaintiff-Respondent,                   )    Filed: January 27, 2016
                                               )
v.                                             )    Stephen W. Kenyon, Clerk
                                               )
THOMAS NELSON FARMER,                          )    THIS IS AN UNPUBLISHED
                                               )    OPINION AND SHALL NOT
       Defendant-Appellant.                    )    BE CITED AS AUTHORITY
                                               )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Lansing L. Haynes, District Judge.

       Judgment of conviction and sentence, affirmed; order denying Idaho Criminal
       Rule 35 motion, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Judge
       Thomas Nelson Farmer appeals from his judgment of conviction for aggravated assault.
He argues the district court abused its discretion by denying his motion to withdraw his guilty
plea, imposing an excessive sentence, and denying his Idaho Criminal Rule 35 motion. For the
reasons set forth below, we affirm.
                                               I.
                                 FACTS AND PROCEDURE
       Farmer was arrested and charged with aggravated assault for threatening to kill his adult
sister while pushing his arm against her throat. He was also charged with the persistent violator
enhancement. Pursuant to a plea agreement, Farmer pleaded guilty to the aggravated assault, and
the State dismissed the persistent violator enhancement. There was no agreement as to the
recommended sentence.      After the presentence investigation report and LSI-R and GAIN-I


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assessments were prepared and reviewed by Farmer, Farmer moved to withdraw his plea on the
grounds that his attorney incorrectly informed him of the terms of the plea agreement. After a
hearing, the district court denied the motion and sentenced Farmer to a unified five-year term of
incarceration, with two years fixed. Farmer filed an I.C.R. 35 motion that was denied by the
district court. Farmer appealed.
                                                II.
                                   STANDARD OF REVIEW
       Whether to grant a motion to withdraw a guilty plea lies in the discretion of the district
court and such discretion should be liberally applied. State v. Freeman, 110 Idaho 117, 121, 714
P.2d 86, 90 (Ct. App. 1986). The exercise of the trial court’s discretion is affected by the timing
of the motion to withdraw the plea. State v. Ballard, 114 Idaho 799, 801, 761 P.2d 1151, 1153
(1988); State v. McFarland, 130 Idaho 358, 361, 941 P.2d 330, 333 (Ct. App. 1997). Although a
less rigorous standard applies, presentence withdrawal of a guilty plea is not an automatic right;
the defendant has the burden of showing that 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). Once the defendant has met this burden, the State may still avoid
a withdrawal of the plea by demonstrating the existence of prejudice to the State. State v. Dopp,
124 Idaho 481, 485, 861 P.2d 51, 55 (1993); State v. Henderson, 113 Idaho 411, 414, 744 P.2d
795, 798 (Ct. App. 1987). However, the defendant’s failure to present and support a plausible
reason will dictate against granting withdrawal, even absent such prejudice. Dopp, 124 Idaho at
485, 861 P.2d at 55; Henderson, 113 Idaho at 414, 744 P.2d at 798.
       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. Freeman, 110 Idaho at 121, 714 P.2d at 90.
       When a district court’s discretionary decision in a criminal case 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 court reached its decision by an exercise of reason. State v.
Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).



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                                                     III.
                                               ANALYSIS
       Farmer makes three arguments in his appeal. First, he asserts the district court erred
when it refused to allow him to withdraw his guilty plea. Second, he argues the district court
abused its discretion by failing to reduce his sentence. Third, he argues the district court erred
when it failed to grant his I.C.R. 35 motion for leniency.
A.     The District Court Did Not Abuse Its Discretion by Denying Farmer’s Motion to
       Withdraw His Guilty Plea
       The first step in analyzing a motion to withdraw a guilty plea is to determine whether the
plea was knowingly, intelligently, and voluntarily made. State v. Colyer, 98 Idaho 32, 34, 557
P.2d 626, 628 (1976); State v. Hanslovan, 147 Idaho 530, 536, 211 P.3d 775, 781 (Ct. App.
2008); Henderson, 113 Idaho at 412, 744 P.2d at 796. Additionally, I.C.R. 11(c) requires that
before a trial court accepts a guilty plea, the record of the entire proceedings--including
reasonable inferences drawn therefrom--show:
       (1) The voluntariness of the plea.
       (2) The defendant was informed of the consequences of the plea, including
           minimum and maximum punishments, and other direct consequences which
           may apply.
       (3) The defendant was advised that by pleading guilty the defendant would waive
           the right against compulsory self-incrimination, the right to trial by jury, and
           the right to confront witnesses against the defendant.
       (4) The defendant was informed of the nature of the charge against him.
       (5) Whether any promises have been made to the defendant, or whether the plea is
           a result of any plea bargaining agreement, and if so, the nature of the
           agreement and that the defendant was informed that the court is not bound by
           any promises or recommendation from either party as to punishment.
       Accordingly, the determination that a plea is entered knowingly, intelligently, and
voluntarily involves a three-part inquiry: (1) whether the defendant’s plea was voluntary in the
sense that he or she understood the nature of the charges and was not coerced; (2) whether the
defendant knowingly and intelligently waived his or her rights to a jury trial, to confront his or
her accusers, and to refrain from self-incrimination; and (3) whether the defendant understood
the consequences of pleading guilty. Dopp, 124 Idaho at 484, 861 P.2d at 54; State v. Carrasco,
117 Idaho 295, 297, 787 P.2d 281, 283 (1990); Hawkins, 117 Idaho at 288, 787 P.2d at 274. The
trial court need not establish a factual basis for the crimes charged prior to accepting a guilty
plea. State v. Coffin, 104 Idaho 543, 545, 661 P.2d 328, 330 (1983).


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       “When 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, such promise must be
fulfilled.” State v. Lutes, 141 Idaho 911, 914, 120 P.3d 299, 302 (Ct. App. 2005) (quoting
Santobello v. New York, 404 U.S. 257, 262 (1971)).            However, a plea agreement is not
retroactively rendered invalid because it has been breached. McAmis v. State, 155 Idaho 796,
798, 317 P.3d 49, 51 (Ct. App. 2013).
       Farmer argues that regardless of who makes the representation, whether it be the
prosecutor or his attorney, the result is the same: the plea was entered upon a false promise. In
this case, defense counsel mistakenly believed the State’s offer involved local jail time and
probation instead of the State making no specific sentencing recommendations as part of the plea
offer. Trial counsel further asserted that she relayed that offer to Farmer prior to the entry of his
plea so at the time he entered his plea, he believed the State would be recommending probation
and local jail time for the sentence. However, even if Farmer believed the State would be
recommending probation and local jail time prior to the change of plea hearing, at the time of the
change of plea hearing, his plea could not have rested in any significant degree on that
misunderstanding because that misunderstanding was corrected at the change of plea hearing.
Farmer, after being informed of the correct plea offer, then entered a guilty plea to the charge,
and thus, his plea was entered based on his understanding of the actual plea offer not the
misstatement of his attorney.
       Just prior to the change of plea hearing, Farmer signed the pretrial settlement offer which
makes it clear there were no sentencing agreements as part of the plea offer. The court then
reviewed the plea offer on the record with Farmer, noting, “The parties for either side have open
recommendations up to the statutory maximums or minimum recommendations as you may
choose.” The court then confirmed with the State and Farmer that the plea agreement had been
correctly stated. Farmer indicated the agreement had been explained to him earlier, but made no
mention that he believed the plea offer he signed misstated the terms of the agreement he thought
he was getting.
       The court again explained to Farmer, “Now the state can recommend anything it wants to
up to five years in prison and up to $5,000 in fine at the time of sentencing. Are you aware of
that?” Farmer indicated that he was. The court further noted that it was not bound by the
recommendations and would impose the sentence it believed was most appropriate under the

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circumstances. At no time during the change of plea hearing did Farmer make any statements
indicating that he thought the State would be recommending probation and local jail time at
sentencing. In fact, every piece of information Farmer was presented with that day and either
signed or orally acknowledged indicated the State was not making any specific sentencing
recommendation, and the court was not bound by any sentencing recommendation. In light of
the information presented to Farmer, this Court cannot conclude his guilty plea was induced by
or rested in significant part on the misstatements made by defense counsel prior to the day of the
change of plea hearing. As such, this Court cannot find the plea was induced or rested upon any
false premise and consequently, finds the plea was entered knowingly, intelligently, and
voluntarily.
        Farmer argues that even if his guilty plea was constitutionally valid, he has asserted just
cause to withdraw the plea--his belief the State would be making a different recommendation.
Farmer raises this issue after he had seen the PSI, the LSI-R and GAIN-I assessments, and the
behavioral health evaluation, and as such, the court may temper its liberality by weighing the
defendant’s apparent motive. State v. Arthur, 145 Idaho 219, 222, 177 P.3d 966, 969 (2008)
(citing State v. Mayer, 139 Idaho 643, 647, 84 P.3d 579, 583 (Ct. App. 2004)).
        Here, Farmer fails to meet his burden establishing just cause to withdraw his plea. He
fails to demonstrate any constitutional infirmity in the guilty plea he entered. Moreover, the
court recognized its discretion in the matter, correctly identified the relevant standard for
withdrawing the plea, and reached a reasoned decision to deny the motion. Accordingly, we
affirm the district court’s denial of Farmer’s motion to withdraw his guilty plea.
B.      The District Court Did Not Abuse Its Discretion by Imposing Sentence or Failing to
        Reduce Farmer’s Sentence
        Sentencing is a matter for the trial court’s discretion. Both our standard of review and the
factors to be considered in evaluating the reasonableness of the sentence are well established.
See State v. Hernandez, 121 Idaho 114, 117-18, 822 P.2d 1011, 1014-15 (Ct. App. 1991); State
v. Lopez, 106 Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct. App. 1984); State v. Toohill, 103
Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). When reviewing the length of a sentence,
we consider the defendant’s entire sentence. State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387,
391 (2007). Applying these standards, and having reviewed the record in this case, we cannot
say the district court abused its discretion.


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       Next, we review whether the district court erred in denying Farmer’s I.C.R. 35 motion. A
motion for reduction of sentence under I.C.R. 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 an I.C.R. 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 an I.C.R. 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); Lopez, 106 Idaho at 449-51, 680 P.2d at 871-73. Upon review
of the record, we conclude no abuse of discretion has been shown.
                                                      IV.
                                            CONCLUSION
       We affirm the district court. The district court did not abuse its discretion when it denied
Farmer’s motion to withdraw his plea and it did not abuse its discretion when sentencing Farmer
or in denying Farmer’s I.C.R. 35 motion for relief.
       Chief Judge MELANSON and Judge GRATTON CONCUR.




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