               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 45489

STATE OF IDAHO,                                 )
                                                ) Filed: March 14, 2019
       Plaintiff-Respondent,                    )
                                                ) Karel A. Lehrman, Clerk
v.                                              )
                                                )
RONNIE GENE KINCAID, JR.,                       )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Cassia
       County. Hon. John K. Butler, District Judge.

       Order denying motion to withdraw guilty plea, affirmed; judgment of
       conviction, affirmed in part, vacated in part, and case remanded.

       Eric D. Fredericksen, State Appellate Public Defender; Reed P. Anderson, Deputy
       Appellate Public Defender, Boise, for appellant.

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

HUSKEY, Judge
       Ronnie Gene Kincaid, Jr. appeals from the judgment of conviction entered upon his
guilty plea to second degree murder. Kincaid argues the district court erred when it denied
Kincaid’s motion to withdraw his guilty plea and when it ordered Kincaid to pay two separate
fines of $5,000. The district court did not err in denying Kincaid’s motion to withdraw his guilty
plea. However, because Kincaid was convicted of only one offense, the district court erred when
it imposed two separate $5,000 fines.       For the reasons set forth below, the judgment of
conviction is affirmed in part, vacated in part, and the case is remanded to the district court for
entry of an amended judgment of conviction consistent with this opinion.




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                                                    I.
                       FACTUAL AND PROCEDURAL BACKGROUND
        Kincaid was charged by information with multiple felonies, which included Count I:
murder in the first degree, Idaho Code §§ 18-4001, 18-4002, and 18-4003(a), (d); Count II:
mayhem, I.C. § 18-5001; Counts III and IV:               penetration by a foreign object, I.C. § 18-
6608(1)(a); and Count V: concealment or destruction of evidence, I.C. § 18-2603. The State
later amended the information to add a persistent violator sentencing enhancement, I.C. § 19-
2514. Kincaid entered a not guilty plea, and the case was set for jury trial. Kincaid waived his
right to a speedy trial, and the parties settled on a trial date.
        At the first pretrial conference, the district court was informed of on-going settlement
negotiations. At the second pretrial conference, the parties presented an Idaho Criminal Rule
11(f)(1)(A) and (C) plea agreement, 1 wherein the State agreed to amend the information to one
count of murder in the second degree and dismiss the sentencing enhancement and the four
remaining charges. The plea agreement explained: “The Defendant shall not file a motion to
withdraw any guilty plea entered as part of this plea agreement.”             Additionally, the plea
agreement stated:
        The Defendant waives his right to appeal for any issue or basis, including but not
        limited to, appealing the judgment of conviction and/or the sentence pronounced
        by the Court and/or the denial of any motion to suppress, motion to withdraw
        guilty plea, or Idaho Criminal Rule 35 motion.
In exchange for Kincaid’s guilty plea, the State agreed to recommend a unified life sentence,
with fifteen to twenty years determinate. Pursuant to the agreement, Kincaid entered an Alford 2
plea to one count of murder in the second degree, I.C. §§ 18-4001, 18-4002, and 18-4003(g).
        Two days before the scheduled sentencing hearing, Kincaid’s attorney filed a motion to
withdraw as the attorney of record. At the time originally set for sentencing, the court addressed
the attorney’s motion to withdraw, noting that although the court was prepared to accept
Kincaid’s Rule 11 plea agreement, the court had recently been informed by counsel of Kincaid’s
1
         We acknowledge the plea agreement in this case was entitled “Binding Plea Agreement.”
However, this is a bit of a misnomer as there is no scenario in which the parties can require a
district court to follow the recommendations of the parties. Depending on which subsection of
Idaho Criminal Rule 11 is invoked, the remedy is that a defendant may have an opportunity to
withdraw his plea if the court declines to follow the recommendations. The agreement in this
case was made pursuant to I.C.R. 11(f)(1)(A) and (C).
2
        See North Carolina v. Alford, 400 U.S. 25 (1970).
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desire to withdraw his guilty plea. After hearing argument on the motion for appointed counsel
to withdraw, the district court denied the motion and offered the following explanation:
       In view of Mr. Kincaid’s desire that a motion be filed to withdraw his plea of
       guilty--and I will hear further argument, if counsel wish to do so, but my concerns
       are that if I grant, [defense counsel], your motion to withdraw at this time that
       whoever is ultimately retained or appointed would not have the familiarity with
       the case to necessarily effectively assist Mr. Kincaid in the filing of his motion to
       withdraw his plea, and certainly that does raise some concerns for me in terms of
       post-conviction relief.
       Thereafter, Kincaid filed a motion to withdraw his guilty plea.         At the hearing on
Kincaid’s motion, the following exchange occurred between Kincaid and defense counsel:
       Counsel: Were you concerned that I, as your counsel, would no longer represent
                you if you didn’t follow through with the plea agreement that was
                reached?
       Kincaid: Yes.
       Counsel: And why was that?
       Kincaid: Because I didn’t want to plead to anything I didn’t do.
       Counsel: But why were you concerned that I would no longer represent you?
       Kincaid: Because you told me that if I took this to trial, you would quit.
       Counsel: And--well, not if you took it to trial, but if you didn’t follow through
                with the plea agreement; right?
       Kincaid: Yes.
       Counsel: And, in fact, after you indicated to the Court that you didn’t want to
                continue with your plea and withdraw your plea, I filed a motion to
                withdraw as your counsel; right?
       Kincaid: Yes.
The district court sought clarification on Kincaid’s statements, and asked:
       Court:      The inquiry that I have and I was confused by the questioning before
                   we get to cross, Mr. Kincaid, did you testify that [defense counsel] told
                   you that he would withdraw if you did not accept this plea before you
                   entered the plea?
       Kincaid:    Yes.
       Court:      That’s what he told you?
       Kincaid:    He told me that if I didn’t take this plea, he would quit.
       Court:      Okay.
       Kincaid:    I wanted a trial from the beginning.
       The district court denied Kincaid’s motion to withdraw his guilty plea. The district court
found that Kincaid made a knowing, voluntary, and intelligent guilty plea to murder in the
second degree and the matter was set for sentencing. The same day, defense counsel filed a




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second motion to withdraw as the attorney of record, which the district court granted, and a new
public defender was appointed to represent Kincaid. 3
       The State filed a sentencing memorandum in which the State argued that Kincaid
breached the plea agreement when he moved to withdraw his guilty plea, and as a result, the
State was no longer bound by its original sentencing recommendation. 4 The State explained it
would amend its sentencing recommendation to a unified life sentence, with thirty-five years
determinate, as compared to the original recommendation of a unified life sentence, with fifteen
to twenty years determinate.
       At the sentencing hearing, the State recommended a unified life sentence, with thirty-five
years determinate, and Kincaid’s counsel requested a unified life sentence, with fifteen years
determinate. The district court imposed a unified life sentence, with twenty years determinate.
The district court also entered two separate $5,000 civil judgments against Kincaid for a crime of
violence, pursuant to I.C. § 19-5307. Kincaid timely appeals.
                                                II.
                                           ANALYSIS
A.     The District Court Did Not Err When It Denied Kincaid’s Motion to Withdraw His
       Guilty Plea
       Kincaid argues the district court erred when it denied his motion to withdraw his guilty
plea. Specifically, Kincaid claims his guilty plea was not voluntary because defense counsel
threatened to withdraw as the attorney of record if Kincaid did not plead guilty.
       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.



3
         With new counsel, Kincaid filed a renewed motion to withdraw his guilty plea. The
district court ruled it would not consider the renewed motion.
4
        In the appellant’s brief, Kincaid admits he agreed to waive his right to appeal any issues
other than sentencing. The State, however, does not argue the terms of the plea agreement
prohibit Kincaid’s appeal, perhaps because the State believes the plea agreement was voided
prior to sentencing when Kincaid filed his motion to withdraw his plea. We therefore address
the merits of Kincaid’s argument on appeal.
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       The narrow issue in our case is whether a guilty plea is involuntary if defense counsel
advises the defendant to enter a guilty plea and threatens to withdraw as the attorney of record if
the defendant declines to follow counsel’s advice. Our case depends on the interpretation of two
Idaho Supreme Court cases: Hollon v. State, 132 Idaho 573, 976 P.2d 927 (1999) and State v.
Grant, 154 Idaho 281, 297 P.3d 244 (2013). The State argues Hollon is controlling precedent
and claims Kincaid’s case is indistinguishable in any meaningful way. Kincaid asserts that
Hollon was implicitly overruled by Grant.
       In Hollon, the Supreme Court analyzed whether defense counsel’s threat to withdraw
coerced a defendant into pleading guilty. After charges were filed, defense counsel presented
Hollon with a plea agreement. Hollon, 132 Idaho at 575, 976 P.2d at 929. Hollon initially
agreed to accept the plea agreement, but later changed his mind and wanted to go to trial. Id.
After learning Hollon was not willing to accept the plea agreement, defense counsel explained he
would not represent Hollon at trial. Id. Hollon changed his mind again and accepted the plea
agreement. Id.
       On a petition for post-conviction relief, Hollon argued his defense counsel provided
ineffective assistance. Id. at 576, 976 P.2d at 930. Hollon alleged four grounds for ineffective
assistance of counsel, one of which was that Hollon’s guilty plea was coerced because defense
counsel threatened to withdraw as his attorney when Hollon wanted to proceed to trial. Id. The
record confirmed that Hollon’s defense counsel threatened to withdraw if Hollon went to trial.
Id. Even with the threat from defense counsel, the Court concluded:
               Someone in Hollon’s position might feel that they were being abandoned
       by counsel upon whom they had come to trust and depend. However, in a
       situation such as this one, if counsel feels that they cannot support a client’s
       choice, that counsel should be allowed to withdraw, without then rendering a
       client’s subsequent decision to enter into a guilty plea, involuntary. Additionally,
       Hollon’s inexperience with the criminal justice system should not excuse his
       unwillingness to state at his plea hearing that he felt coerced by [defense
       counsel]’s threats.
Id. at 577, 976 P.2d at 931. The Supreme Court commended defense counsel’s warning to
Hollon that counsel would not be able to represent Hollon at trial. Id. at 577-78, 976 P.2d at
931-32. This warning, according to the Court, was merely an explanation that counsel was not
the right person for the job and another attorney would need to be appointed if Hollon wanted
someone “more sympathetic to trial.” Id. at 578, 976 P.2d at 932.


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       In Grant, appointed defense counsel filed a motion to withdraw as the attorney of record.
Grant, 154 Idaho at 283, 297 P.3d at 246. According to defense counsel, Grant fundamentally
disagreed with counsel on the issue of whether to accept the nonbinding plea agreement and, as a
result, communications broke down. Id. The district court denied the motion to withdraw and
explained that because the disagreement between Grant and his counsel centered on Grant’s
desire to take the case to trial, the key question was whether defense counsel could competently
represent Grant at trial. Id. After questioning defense counsel, the district court determined the
disagreement regarding the plea deal had not tainted the attorney-client relationship so as to
prevent competent representation. Id. Grant subsequently pleaded guilty to possession of a
controlled substance. Id.
       Grant argued on appeal that his guilty plea should be vacated because the district court
abused its discretion when it denied defense counsel’s motion to withdraw. Id. at 284, 297 P.3d
at 247. The Supreme Court analyzed defense counsel’s motion to withdraw and counsel’s two
arguments in support of the motion: (1) Grant insisted on rejecting a plea deal; and (2) the
relationship between Grant and defense counsel was strained. Id. at 285, 297 P.3d at 248. The
Court held neither ground was sufficient to justify defense counsel’s motion to withdraw. Id.
First, the Court explained that, according to federal case law, counsel may not withdraw “merely
because his client refuses to plead guilty,” “another attorney might possibly be able to convince
the client to plead guilty,” or “his client refuses to communicate with him.” Id. Second, the
Court determined Grant was satisfied with defense counsel’s communication and performance,
and took no initiative to request substitute counsel. Id.
        In its decision denying Kincaid’s motion to withdraw his guilty plea, the district court
cited to Hollon for the proposition:        “Our courts have recognized that counsel’s threat to
withdraw is neither coercive, so as to make the defendant’s plea of guilty involuntary, nor does it
constitute ineffective assistance.” Kincaid disagrees with the district court’s interpretation of
Idaho precedent regarding whether counsel’s threat to withdraw is coercive. Kincaid argues
Grant is controlling because it overruled Hollon and held that counsel may not withdraw merely
because a client refuses to plead guilty.
       The district court did not err because Hollon applies to this case and was not overruled by
Grant. Like in Hollon, the issue here is whether defense counsel’s threat to withdraw coerced a
defendant into pleading guilty. Kincaid was not only presented with a plea agreement, but

                                                  6
accepted the agreement and was found by the district court to have made a knowing, voluntary,
and intelligent guilty plea. However, Kincaid changed his mind and filed a motion to withdraw
his guilty plea. Like the defendant in Hollon, Kincaid claimed he wanted to go to trial, but
defense counsel threatened to withdraw if Kincaid did not accept the plea agreement. Thus, the
issue here--just as in Hollon--is whether a guilty plea is coerced if counsel threatens to withdraw
on account of the defendant not accepting a guilty plea. Hollon held that counsel is allowed to
withdraw when counsel cannot support a client’s choice, and that a withdrawal of this sort does
not render a client’s subsequent decision to enter into a guilty plea involuntary. Hollon, 132
Idaho at 577, 976 P.2d at 931. Here, the district court did not err when it cited to Hollon and
held that counsel’s threat to withdraw was not so coercive as to make Kincaid’s plea of guilty
involuntary.
       Kincaid does not attempt to distinguish Hollon. Instead, Kincaid argues that the ruling in
Hollon does not apply because Grant implicitly overruled Hollon. Kincaid focuses on a single
sentence from Grant: “[C]ounsel may not withdraw merely because his client refuses to plead
guilty, or because another attorney might possibly be able to convince the client to plead guilty.”
Grant, 154 Idaho at 285, 297 P.3d at 248.
       Grant did not overrule Hollon since Grant considered a different issue than Hollon. In
Hollon, the question was the same one presented in this case--whether defense counsel’s threat to
withdraw if a plea agreement was not accepted coerced a defendant into pleading guilty. Hollon,
132 Idaho at 576, 976 P.2d at 930. In contrast, Grant addressed only whether counsel could
withdraw as the attorney of record. Grant, 154 Idaho at 285-86, 297 P.3d at 248-49. Unlike
Hollon, the Court in Grant did not analyze whether the defense counsel’s withdrawal influenced
Grant’s guilty plea. Because of the narrow issue presented in Grant, the Supreme Court limited
its analysis to counsel’s motion to withdraw and whether counsel’s explanations were sufficient
to justify the withdrawal. Id. The Court incorporated information about Grant’s relationship
with defense counsel, which included a disagreement between defense counsel and Grant as to
whether to accept a plea agreement. Id. at 285, 297 P.3d at 248. However, the Court used the
information regarding that disagreement only to evaluate the two bases for defense counsel’s
motion to withdraw: (1) Grant insisted on rejecting a plea deal; and (2) their relationship had
become strained. Id. Although there was evidence Grant and his defense counsel disagreed
about whether to accept a guilty plea, Grant never argued that his guilty plea was coerced or that

                                                7
defense counsel threatened to withdraw if Grant refused to plead guilty. Id. Thus, the issue in
Grant is distinguishable from the issue presented in Hollon.
       Similarly, Kincaid relies on language from Grant which does not overrule Hollon.
Kincaid directs this Court to the following sentence: “[C]ounsel may not withdraw merely
because his client refuses to plead guilty, or because another attorney might possibly be able to
convince the client to plead guilty.” Grant, 154 Idaho at 285, 297 P.3d at 248. We interpret the
quoted sentence as a short statement of law concerning the relationship between counsel and
client. The statement is not the holding in Grant, and it is not a critical component in the
Supreme Court’s evaluation of defense counsel’s motion to withdraw. It also does not determine
the issue set forth in Kincaid’s case or in Hollon: whether defense counsel can threaten to
withdraw from a case and to what extent that threat coerces a defendant’s guilty plea. Thus,
insofar as Kincaid relies on the single sentence from Grant as evidence that Hollon has been
overruled, we disagree with Kincaid.
        Because Hollon applies to this case at bar and because Grant did not overrule the
holding in Hollon, the district court did not err when it found Kincaid was not coerced by
defense counsel such that Kincaid’s guilty plea was involuntary. The district court was correct
when it cited to Hollon and explained “counsel’s threat to withdraw is neither coercive, so as to
make the defendant’s plea of guilty involuntary, nor does it constitute ineffective assistance.”
Kincaid fails to persuade this Court that the district court’s decision on Kincaid’s motion to
withdraw his guilty plea was error. Thus, the district court did not err when it found that Kincaid
entered a knowing, voluntary, and intelligent guilty plea and Kincaid failed to show any other
just reason to withdraw his plea.
B.     The District Court Abused Its Discretion When It Ordered Kincaid to Pay $5,000 to
       Each Victim
       Kincaid argues the district court abused its discretion when it ordered Kincaid to pay
$5,000 to two separate victims under I.C. § 19-5307. The State agrees.
       When a trial court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi-tiered inquiry to determine whether the lower court correctly perceived the
issue as one of discretion, acted within the boundaries of such discretion, acted consistently with
any legal standards applicable to the specific choices before it, and reached its decision by an
exercise of reason. Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018).


                                                8
       The interpretation of a statute is an issue of law over which we exercise free review.
Aguilar v. Coonrod, 151 Idaho 642, 649-50, 262 P.3d 671, 678-79 (2011). Such interpretation
must begin with the literal words of the statute; those words must be given their plain, usual, and
ordinary meaning; and the statute must be construed as a whole. Verska v. Saint Alphonsus Reg’l
Med. Ctr., 151 Idaho 889, 893, 265 P.3d 502, 506 (2011). It is well established that where
statutory language is unambiguous, legislative history and other extrinsic evidence should not be
consulted for the purpose of altering the clearly expressed intent of the legislature. Id. Only
where a statute is capable of more than one conflicting construction is it said to be ambiguous
and invoke the rules of statutory construction. L & W Supply Corp. v. Chartrand Family Trust,
136 Idaho 738, 743, 40 P.3d 96, 101 (2002). If it is necessary for this Court to interpret a statute
because an ambiguity exists, then this Court will attempt to ascertain legislative intent and, in
construing the statute, may examine the language used, the reasonableness of the proposed
interpretations, and the policy behind the statute. Kelso & Irwin, P.A. v. State Ins. Fund, 134
Idaho 130, 134, 997 P.2d 591, 595 (2000). Where the language of a statute is ambiguous,
constructions that lead to absurd or unreasonably harsh results are disfavored. See Jasso v.
Camas Cnty., 151 Idaho 790, 798, 264 P.3d 897, 905 (2011).
       Idaho Code § 19-5307 provides the court “may impose a fine not to exceed five thousand
dollars ($5,000) against any defendant found guilty of any felony listed in subsection (2) of this
section.” The statute also explains: “The fine shall operate as a civil judgment against the
defendant, and shall be entered on behalf of the victim named in the indictment or information,
or the family of the victim in cases of homicide or crimes against children.” I.C. § 19-5307.
       Here, Kincaid pleaded guilty to one count of murder in the second degree.                The
conviction on this single offense permitted the district court to impose one fine of $5,000 on
behalf of the family of the victim. Thus, the district court abused its discretion when it imposed
two separate $5,000 fines on Kincaid, which totaled $10,000. We therefore vacate the portion of
the judgment of conviction and sentence imposing two separate fines and remand the case to the
district court for proceedings consistent with this opinion.
                                                III.
                                         CONCLUSION
       The district court did not err when it denied Kincaid’s motion to withdraw his guilty plea.
However, because I.C. § 19-5307 only permits one fine of $5,000 for each offense, and since

                                                 9
Kincaid was convicted of only one offense, the district court erred when it imposed two separate
$5,000 fines. For the reasons set forth above, the judgment of conviction is affirmed in part,
vacated in part, and the case is remanded to the district court for entry of an amended judgment
of conviction consistent with this opinion.
       Chief Judge GRATTON and Judge LORELLO CONCUR.




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