                 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 42688

STATE OF IDAHO,                                  ) 2016 Opinion No. 45
                                                 )
          Plaintiff-Respondent,                  ) Filed: June 30, 2016
                                                 )
v.                                               ) Stephen W. Kenyon, Clerk
                                                 )
JOSHUA A. RIGGINS,                               )
                                                 )
          Defendant-Appellant.                   )
                                                 )

          Appeal from the District Court of the First Judicial District, State of Idaho,
          Bonner County. Hon. Barbara A. Buchanan, District Judge.

          Order granting motion for reconsideration, affirmed; judgment of conviction and
          sentence, affirmed.

          Sara B. Thomas, State Appellate Public Defender; Maya P. Waldron, Deputy
          Appellate Public Defender, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
          Attorney General, Boise, for respondent.
                    ________________________________________________

GRATTON, Judge
          Joshua A. Riggins appeals from the district court’s order granting the State’s motion for
reconsideration of its prior order granting Riggins’ motion to withdraw his guilty plea. We
affirm.
                                                  I.
                       FACTUAL AND PROCEDURAL BACKGROUND
          During a traffic stop, officers found marijuana and paraphernalia in Riggins’ car and
methamphetamine in his pocket.             Riggins was charged with felony possession of
methamphetamine, misdemeanor possession of marijuana, and misdemeanor possession of
paraphernalia.      Pursuant to a plea agreement, Riggins pled guilty to possession of
methamphetamine, a felony in violation of Idaho Code § 37-2732(c)(1), and the State dismissed
the misdemeanor charges. During the sentencing hearing, Riggins informed the court that he

                                                  1
was not taking his prescribed antidepressants when he pled guilty and requested a continuance to
withdraw his guilty plea. The court granted the continuance. Riggins moved to withdraw his
guilty plea and asserted his innocence. The State opposed the motion, arguing that the plea
contained no constitutional defect because it was knowingly, intelligently, and voluntarily made.
The State also argued that it would be prejudiced by the withdrawal of the guilty plea because
the delay would adversely impact its witnesses’ memories and it had already dismissed the two
misdemeanor counts with prejudice. In addition, the State highlighted that Riggins had already
seen his presentencing investigation report (PSI) before his request to withdraw his guilty plea.
The district court acknowledged the prejudice to the State, but nonetheless allowed Riggins to
withdraw his guilty plea because he maintained his innocence and there was concern about his
psychiatric condition when he pled guilty.
       Two months later, and a little less than three weeks before trial was set to begin, the State
filed a motion to reconsider the order granting Riggins’ motion to withdraw his plea. In addition
to its original arguments opposing the guilty plea withdrawal, the State informed the court that
the arresting officer was unavailable because he had taken a job as an undercover agent and, as
such, could not testify. The district court granted the State’s motion and reinstated Riggins’
guilty plea, explaining that “there is no meaningful indication in the record that Riggins’
depression rose to a level that rendered his guilty plea constitutionally involuntary,” and noting
that the State had proven sufficient prejudice in the form of the two dismissed charges and the
unavailable primary witness. The court reinstated Riggins’ guilty plea and sentenced him to
three years, with one year determinate, suspended the sentence, and placed him on probation.
Riggins timely appealed.
                                                II.
                                             ANALYSIS
       The issue before this Court is whether a trial court’s reconsideration and reversal of an
order granting a motion to withdraw a guilty plea violates the defendant’s constitutional rights.
This is an issue of first impression in Idaho. Riggins objected to the motion to reconsider, but
not on the grounds advanced on appeal.          Riggins, therefore, acknowledges that he must
demonstrate that the district court’s reconsideration and reversal of its order granting withdrawal
of his guilty plea was fundamental error. In State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010),
the Idaho Supreme Court abandoned the definitions it had previously utilized to describe what

                                                 2
may constitute fundamental error. The Perry Court held that an appellate court should reverse an
unobjected-to error when the defendant persuades the Court that the alleged error: (1) violates
one or more of the defendant’s unwaived constitutional rights; (2) is clear or obvious without the
need for reference to any additional information not contained in the appellate record; and
(3) affected the outcome of the trial proceedings. Id. at 226, 245 P.3d at 978.
       While the parties couch the argument as whether the district court had authority to grant
the motion to reconsider, under the first prong of Perry, reconsideration and reversal of the order
granting withdrawal of the guilty plea must be shown to have violated one or more of Riggins’
unwaived constitutional rights.     This is a particularly important consideration in this case
because, as will be seen below, most of the cases in which reconsideration of an order granting
withdrawal of a guilty plea is challenged address the trial court’s “authority” to reconsider under
applicable rules, statutes, or the inherent power of the court, as well as policy considerations, not
whether it is simply constitutionally impermissible to do so.
       Riggins contends that he had the right to a trial by jury, to remain silent, and to confront
the witnesses against him as afforded by the United States Constitution and the Idaho
Constitution. U.S. CONST. amend. VI; IDAHO CONST. art. 1 § 7. He acknowledges that when a
defendant pleads guilty, he waives those fundamental rights, Parke v. Raley, 506 U.S. 20, 29
(1992), but asserts that once a guilty plea is withdrawn, automatically the defendant is returned
to the status quo ante and regains his right to a trial by jury, to remain silent, to confront
witnesses against him, as well as his innocence, as if the plea never existed. Consequently, he
claims that a court may not constitutionally reconsider an order granting withdrawal of a guilty
plea because, in doing so, the restored rights are taken away, guilt declared and, in turn, due
process denied.
       Riggins relies on a series of Florida appellate court cases. In Williams v. State, 762 So.
2d 990, 991 (Fla. Dist. Ct. App. 2000), the court held that “the trial court was without authority
to reconsider the motion to withdraw appellant’s plea. When a plea of guilty or nolo contendere
is withdrawn and accepted by the court, it is as if the plea had never been entered ab initio.”
See also Miles v. State, 620 So. 2d 1075, 1076 (Fla. Dist. Ct. App. 1993) (same); State v.
McClain, 509 So. 2d 1360, 1361 (Fla. Dist. Ct. App. 1987) (same). The basis for the holdings in
these cases is Bell v. Florida, 262 So. 2d 244, 245 (Fla. Dist. Ct. App. 1972). The Bell holding
on the issue is as follows:

                                                 3
               When the appellant withdrew his plea of guilty and it was accepted by the
       court, it was as if a plea had never been entered ab initio. To hold otherwise
       would cause the trial courts to be apprehensive of accepting or allowing the
       withdrawal of a plea because such discretionary action might prevent justice from
       being carried out.
Id. Bell cited no precedential authority for its holding1 and is apparently based upon the policy
consideration stated in the second sentence of the holding. None of the Florida cases base the
repeated holding on applicable rules or statutes or constitutional considerations.
       We are aware of other cases from jurisdictions outside Idaho that have refused to allow
the trial court to reconsider the grant of a motion to withdraw a guilty plea. In People v. McGee,
283 Cal. Rptr. 528 (Cal. Ct. App. 1991), the court analyzed the authority of the court by looking
to a statute, rules of civil procedure, and the inherent power of the court. The court concluded
that authority for the specific motion could not be found in the terms of the statute and rules and
that the inherent power to reconsider was limited to “procedural” rulings. Id. at 530-31. In
People v. Franco, 557 N.Y.S.2d 7 (N.Y. App. Div. 1990), the court, similar to the Florida cases,
relied on previous cases holding that once a judgment of conviction is vacated, the prior plea and
judgment are “beyond reinstatement.” Id. at 8. In State v. Beechum, 934 P.2d 151 (Kan. Ct.
App. 1997), the State cited “various statutes” which it contended allowed reconsideration. Id. at
152. The court concluded that the applicable Kansas statute was similar to the statute in McGee
which the McGee court determined provided no authority. Id. at 153. In Turner v. Com., 10
S.W.3d 136 (Ky. Ct. App. 1999), the court first looked to language in another case that noted the
withdrawal of a guilty plea returns the defendant to the place he was in before the plea. The
court found that “language to be persuasive in holding that Turner was restored all his
constitutional rights as a defendant who had pleaded not guilty.” Id. “In deciding the issue of
the trial court’s authority to reconsider its ruling allowing the withdrawal of a guilty plea,” the
court looked to Beechum, McGee, and Franco, and found no inherent or statutory authority. Id. 2

1
       Although the Bell court included a quote regarding fairness from Chief Justice Cardozo.
2
       None of these courts expressly holds that reconsideration of an order granting withdrawal
of a guilty plea violates the defendant’s constitutional rights. Turner comes the closest to
Riggins’ argument by holding that the defendant is returned to the place prior to the plea and
adding that his constitutional rights are restored. Turner concluded with:
               “The presumption of innocence is fundamental to our system of justice
       and should not be abrogated absent clear and compelling authority. Here, that
       authority is absent.” Beechum, supra, 934 P.2d at 153. The trial court’s granting
                                                 4
          To the contrary, the State argues that the district court had every right to reinstate
Riggins’ guilty plea because the guilty plea was constitutionally proper. State v. Hanslovan, 147
Idaho 530, 536, 211 P.3d 775, 781 (Ct. App. 2008) (a guilty plea without constitutional defect is
made knowingly, voluntarily, and intelligently). Further, the State claims that the district court
erred when it allowed Riggins to withdraw his guilty plea because “a mere assertion of
innocence, by itself, is not grounds to withdraw a guilty plea.” Id. at 537, 211 P.3d at 782. The
State contends that the order granting the withdrawal of the guilty plea is, like any other
interlocutory order, subject to reconsideration. In that regard, the State argues that there is
nothing that constitutionally compels the notion that the defendant’s rights automatically re-
attach.     Thus, the State asserts that there is no constitutional prohibition on a court’s
reconsideration of an order granting withdrawal of a guilty plea. The State relies on authority
from other jurisdictions holding that a trial court may reinstate a withdrawn guilty plea because
of the interlocutory nature of the order granting withdrawal of the plea.
          In United States v. Jerry, 487 F.2d 600 (3rd Cir. 1973), the Court first addressed the
authority of the trial court to reconsider the order allowing withdrawal of the guilty plea. The
Court noted that under common law, in criminal and civil cases, the court’s interlocutory orders
were within its control and could be modified, vacated, or set aside by that court.3 Id. at 604.
The Court acknowledged that no federal statute or criminal rule expressly provided for
reconsideration; however, the Court pointed out that Federal Rule of Criminal Procedure 57(b)
allowed a court to proceed in a lawful manner if no procedure was provided. The Court held that
“so long as the district court has jurisdiction over the case, it possesses inherent power over
interlocutory orders, and can reconsider them when it is consonant with justice to do so.” Jerry,
487 F.2d at 605. Next, the Court took up the “constitutional limitations on the power to
reimpose the plea of guilty.” The Jerry Court noted that the constitutional rights of trial by jury,
confrontation, and the privilege against compulsory self-incrimination are waived by a guilty
plea. Thereafter, the Court posed the question: “[D]id the district court’s order of April 27,


       of Turner’s motion to withdraw his guilty plea “was an act of judicial discretion,
       and any change in the court’s earlier ruling distinctly prejudiced the defendant by
       denying him a full trial.” McGee, supra, 283 Cal. Rptr. at 531.
Turner v. Com., 10 S.W.3d 136, 141 (Ky. Ct. App. 1999).
3
          United States v. Benz, 282 U.S. 304 (1931).

                                                  5
1972, which allowed Jerry to withdraw his guilty plea, restore such rights absolutely, to the
effect that the court’s subsequent order dated May 1, 1972 rescinding that prior order operated to
unconstitutionally deprive Jerry of those rights?” Id. at 607. The Court posed the dilemma as
follows:
       The withdrawal of a guilty plea seemingly returns a defendant to a pre-trial status
       where the constitutional rights in question here are crucial to a fair adjudication.
       On the other hand, if the power of a judge with respect to a motion for withdrawal
       of a guilty plea is ended when he grants it and he cannot vacate his order for
       sufficient cause, it seems apparent that the administration of justice might be
       impeded or even fail.
Id. The Court reasoned by analogy to the situation where a new trial is granted and the
defendant may similarly be considered to possess all the pretrial constitutional rights but, upon
reconsideration, the order for new trial is vacated and the case stands as left by the jury verdict.
Id.4 The Court concluded that the order granting withdrawal of the guilty plea was interlocutory
and the trial court “may reconsider and revise its prior order while it retains jurisdiction even
though the prior order would cause constitutional rights to attach if left unchanged.” Id. at 608.
See also United States v. Farrah, 715 F.2d 1097, 1099 (6th Cir. 1983) (adopting the reasoning in
Jerry); People v. Wilkens, 362 N.W.2d 862, 865-66 (Mich. Ct. App. 1984) (citing to Farrah and
Jerry, and allowing reconsideration due to mistake).
       In People v. Bryant, 860 N.E.2d 511 (Ill. App. Ct. 2006), the defendant contended that
reconsideration was not allowed because his “presumption of innocence and constitutional
rights” re-attached after the withdrawal of his plea. Id. at 514. The court noted that the issue of
reconsideration was one of first impression in Illinois. Id. at 516. The court cited an Illinois
Supreme Court case, People v. Mink, 565 N.E.2d 975 (1990), for the proposition that “a court in
a criminal case has inherent power to reconsider and correct its own rulings, even in the absence
of a statute or rule granting it such authority.” Bryant, 860 N.E.2d at 517. The power to
reconsider extends to interlocutory as well as final judgments. Id. Similar to the analogy in
Jerry, the Bryant court then analogized its case to the Mink case, which allowed reconsideration
and vacation of an order granting a new trial. Id. In Mink, the defendant argued that the
reconsideration of the grant of a new trial violated the Illinois and United States constitutions.
Mink, 565 N.E.2d at 978. The Mink court held that the order granting the motion for new trial

4
       Fine v. Commonwealth, 44 N.E.2d 659 (Mass. 1942).


                                                 6
was interlocutory and subject to reconsideration. Id. at 979. The Bryant court held, similar to
the holding in Mink, that the order granting the motion to withdraw was interlocutory and that
the defendant’s presumption of innocence was not violated by reconsideration. Bryant, 860
N.E.2d at 517-18.5
        We return to the particular issue in this case, which is whether a trial court’s
reconsideration and reversal of a prior order granting a motion to withdraw a guilty plea violates
a defendant’s constitutional rights. As noted, some of the cases, at least in part, focus on the
interlocutory nature of the orders involved. In Boise Mode, LLC v. Donahoe Pace & Partners
LTD, 154 Idaho 99, 107, 294 P.3d 1111, 1119 (2013), the Idaho Supreme Court held:
                An interlocutory order is one that “relates to some intermediate matter in
        the case; any order other than a final order.” Williams v. State, Bd. of Real Estate
        Appraisers, 149 Idaho 675, 678, 239 P.3d 780, 783 (2010) (quoting BLACK’S LAW
        DICTIONARY 1123 (7th ed. 1999)); see also Newell v. Newell, 77 Idaho 355, 362,
        293 P.2d 663, 667 (1956) (“Interlocutory means provisional, only temporary, not
        final; not a final decision of the whole controversy; made or done during the
        progress of an action: intermediate order.”); Evans State Bank v. Skeen, 30 Idaho
        703, 167 P. 1165, 1166 (1917) (“A judgment, order, or decree which is
        intermediate or incomplete and, while it settles some of the rights of the parties,
        leaves something remaining to be done in the adjudication of their substantial
        rights in the case by the court entertaining jurisdiction of the same, is
        interlocutory.”). Thus, an interlocutory order is an order that is temporary in
        nature or does not completely adjudicate the parties’ dispute.
The Supreme Court distinguished between an interlocutory order and a final order in the case of
In Re Doe, 156 Idaho 103, 107, 320 P.3d 1262, 1266 (2014):
        The preeminent legal dictionary defines “interlocutory[”] as “Provisional; interim;
        temporary; not final.” BLACK’S LAW DICTIONARY 731 (5th ed. 1979). By
        contrast, a “final order” is “[o]ne which terminates the litigation between the
        parties and the merits of the case and leaves nothing to be done but to enforce by
        execution what has been determined.”
As to its nature, an order granting a motion to withdraw a guilty plea can only be described as
interlocutory, since it does not terminate the litigation.
        While the order may be interlocutory, Riggins contends that because constitutional rights
are implicated, it is not subject to reconsideration, as those previously waived rights
automatically re-attach. On the other hand, the State argues that while the rights involved are
important, there is nothing that requires they be considered automatically restored, where in
5
       See also State v. Ruiz, 282 P.3d 998, 1003-1007 (Utah 2012) (upholding the trial court’s
reconsideration of prior order granting motion to withdraw guilty plea).
                                                   7
other instances other rights and status determined by interlocutory orders, and subject to
reconsideration, are not. As noted, this issue has not been decided by the Idaho appellate courts.6
       The Florida cases and also Turner, relied upon by Riggins, are based on the notion that
the order granting the motion to withdraw a guilty plea places the defendant in the same position
as if no plea had been entered. On the other hand, the Jerry and Bryant courts hold that the order
is interlocutory and, by analogy to reconsideration of a motion for new trial, not violative of
implicated constitutional rights. The logic there is that a court’s reconsideration of the granting
of a motion for new trial, like reinstating the plea, returns the defendant to the convicted state.
We have not been cited to an Idaho appellate court case that deals expressly with reconsideration
of an order granting a new trial.7 However, we note that I.C. § 19-2405 states that “the granting
of a new trial places the parties in the same position as if no trial had been had.” That statement
mirrors Riggins’ claim with respect to the withdrawal of a plea. Yet, the appellate courts may
reverse a decision granting a new trial which would reinstate the determination of guilt. State v.
Cantu, 129 Idaho 673, 675, 931 P.2d 1191, 1193 (1997). This would have the same effect as
reconsideration of the order granting withdrawal of a guilty plea. So, we are here confined under
the first prong of Perry determining whether a constitutional right was violated. We too adopt
the analogy to reconsideration of the grant of a new trial. If the granting of a new trial returns
the defendant to the status before the plea, reversal of the order withdrawing the plea does not
violate the defendant’s constitutional rights.       The defendant’s constitutional rights do not
absolutely restore upon granting of a motion to withdraw a guilty plea and thus, reconsideration

6
         In State v. Thorngren, 149 Idaho 729, 240 P.3d 575 (2010), Thorngren argued that the
district court’s change of a ruling on the admissibility of a statement violated her due process
rights. Id. at 734, 240 P.3d at 580. The Idaho Supreme Court stated that “a party must be
mindful of a court’s discretion to change its own pretrial rulings, especially evidentiary rulings.”
Id. at 736, 240 P.3d at 582. As to evidentiary rulings in particular, the Thorngren Court noted
that in State v. Streich, 163 Vt. 331, 349, 658 A.2d 38, 50 (1995), the Court held that a criminal
defendant cannot claim a due process violation based on a defendant’s reliance on a pretrial
evidentiary ruling that is subsequently changed. Thorngren, 149 Idaho at 736, 240 P.3d at 582.
The Court held that Thorngren “was not deprived of due process when the court changed its
ruling because, as stated in Streich, reliance to that extent is not warranted in the case of a
pretrial evidentiary ruling.” Id.
7
       Similarly, we are unaware of an Idaho appellate case in which the State appealed the
granting of a motion to withdraw a guilty plea. Perhaps because such an order is not appealable
under Idaho Appellate Rule 11, and proceedings that follow would determine guilt or innocence.


                                                 8
does not automatically violate such rights. Therefore, Riggins has not shown a violation of an
unwaived constitutional right necessary to demonstrate fundamental error.
                                              III.
                                        CONCLUSION
       The trial court’s reconsideration of its prior order granting Riggins’ motion to withdraw
his guilty plea did not violate his constitutional rights.    Fundamental error has not been
demonstrated. Therefore, the order of the district court reconsidering and reinstating Riggins’
guilty plea and his judgment of conviction and sentence are affirmed.
       Judge GUTIERREZ and Judge HUSKEY CONCUR.




                                               9
