               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 44096

STATE OF IDAHO,                                 )   2017 Unpublished Opinion No. 358
                                                )
       Plaintiff-Respondent,                    )   Filed: February 7, 2017
                                                )
v.                                              )   Stephen W. Kenyon, Clerk
                                                )
BRIAN K. ROBERTS,                               )   THIS IS AN UNPUBLISHED
                                                )   OPINION AND SHALL NOT
       Defendant-Appellant.                     )   BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Second Judicial District, State of Idaho, Nez
       Perce County. Hon. Jeff M. Brudie, District Judge.

       Judgment of conviction for possession of a financial transaction card, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Ben P. McGreevy, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

MELANSON, Judge
       Brian K. Roberts appeals from his judgment of conviction following his plea of guilty to
criminal possession of a financial transaction card. Roberts argues that the district court abused
its discretion when it denied Roberts’ motion to withdraw his guilty plea. For the reasons set
forth below, we affirm.
       Roberts was charged with criminal possession of a financial transaction card.
I.C. § 18-3125(4). Roberts initially entered a plea of not guilty but later changed his plea to
guilty pursuant to a plea agreement.   In exchange for Roberts’ guilty plea, the State agreed to
recommend three years of probation. The district court accepted Roberts’ guilty plea. Prior to
sentencing, and prior to reviewing the presentence investigation report, Roberts filed a motion to
withdraw his guilty plea under I.C.R. 33(c) and a supporting affidavit, in which he asserted that



                                                1
he was innocent of the crime to which he previously pled guilty. The district court denied
Roberts’ motion. The district court sentenced Roberts to a unified term of three years, with a
minimum period of confinement of one and one-half years; suspended the sentence; and placed
Roberts on probation for a period of three years. Roberts appeals, challenging the district court’s
denial of Roberts’ motion to withdraw his guilty plea.
       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). 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 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 ensure that the accused is not encouraged to plead guilty to test the
weight of potential punishment and withdraw the plea if the sentence were unexpectedly severe.
Freeman, 110 Idaho at 121, 714 P.2d at 90. 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).
       However, a less rigorous standard applies to a motion made before sentencing. State v.
Ballard, 114 Idaho 799, 801, 761 P.2d 1151, 1153 (1988); State v. Ward, 135 Idaho 68, 72, 14
P.3d 388, 392 (Ct. App. 2000). Nevertheless, withdrawal of a guilty plea before sentence is
imposed is not an automatic right. State v. Dopp, 124 Idaho 481, 485, 861 P.2d 51, 55 (1993);
Ward, 135 Idaho at 72, 14 P.3d at 392. A defendant seeking to withdraw a guilty plea before
sentencing must show a just reason for withdrawing the plea. Dopp, 124 Idaho at 485, 861 P.2d
at 55; Ward, 135 Idaho at 72, 14 P.3d at 392. The just reason standard does not require that the
defendant establish a constitutional defect in his or her guilty plea. State v. Henderson, 113
Idaho 411, 413, 744 P.2d 795, 797 (Ct. App. 1987). Once the defendant has met this burden, the
State may avoid a withdrawal of the plea by demonstrating the existence of prejudice to the
State. Dopp, 124 Idaho at 485, 861 P.2d at 55; Ward, 135 Idaho at 72, 14 P.3d at 392. The


                                                2
defendant’s 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;
Ward, 135 Idaho at 72, 14 P.3d at 392. The good faith, credibility, and weight of the defendant’s
assertions in support of a motion to withdraw a plea are matters for the trial court to decide.
State v. Hanslovan, 147 Idaho 530, 537, 211 P.3d 775, 782 (Ct. App. 2008); see also State v.
Acevedo, 131 Idaho 513, 516, 960 P.2d 196, 199 (Ct. App. 1998).                The district court is
encouraged to liberally exercise its discretion in granting a motion to withdraw a guilty plea.
State v. Wyatt, 131 Idaho 95, 97, 952 P.2d 910, 912 (Ct. App. 1998); Henderson, 113 Idaho at
414, 744 P.2d at 798.
           On appeal, Roberts argues the district court abused its discretion in denying Roberts’
motion to withdraw his guilty plea. Mindful of controlling precedent, Roberts contends that his
assertion of innocence was just reason for withdrawal of his guilty plea. Below, the district court
denied Roberts’ motion, finding that a bare assertion of innocence, made after a previous
assertion of guilt, was not a valid reason to allow withdrawal of Roberts’ guilty plea.
       In State v. Akin, 139 Idaho 160, 75 P.3d 214 (Ct. App. 2003), we held:
                A declaration of innocence alone does not entitle a defendant to withdraw
       a guilty plea. The Idaho Supreme Court has held that “a denial of factual guilt is
       not a just reason for the later withdrawal of the plea, in cases where there is some
       basis in the record of factual guilt . . . .” If mere assertion of legal innocence were
       always a sufficient condition for withdrawal, withdrawal would effectively be an
       automatic right. In determining whether to grant or deny a defendant’s
       withdrawal motion, a court must not only consider his [or her] assertion of
       innocence, but also the reasons why the claim of innocence was not maintained
       earlier.
Id. at 162-63, 75 P.3d at 216-17 (citations omitted); see also State v. Hartsock, 160 Idaho 640,
643, 377 P.3d 1102, 1105 (Ct. App. 2016) (applying Akin and holding that the district court acted
within its discretion when it determined Hartsock’s bare assertion of innocence and regret for
entering the guilty plea was not a just reason for allowing withdrawal of her plea after Hartsock
had become aware of the contents of the presentence investigation report prior to submitting the
motion).
       On appeal, Roberts does not challenge the initial entry of his plea but argues that he
established a just reason to withdraw his guilty plea.        Roberts offered no reason why his
pronouncement of innocence was not previously maintained and did not provide a basis for his


                                                 3
requested withdrawal of his plea beyond a profession of innocence. Moreover, Roberts has
failed to distinguish controlling precedent or cite contrary authority in order to show that an
assertion of innocence constitutes a just reason for the withdrawal of his guilty plea. Therefore,
we hold that the district court properly acted within its discretion in determining that Roberts had
not shown a just reason for allowing withdrawal of his guilty plea.
       Roberts has failed to show that the district court erred in denying his motion to withdraw
his guilty plea. Accordingly, Roberts’ judgment of conviction for criminal possession of a
financial transaction card is affirmed.
       Chief Judge GRATTON and Judge HUSKEY, CONCUR.




                                                 4
