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Electronically Filed
Supreme Court
SCWC-13-0000059
15-JUN-2015
08:41 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o—
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
EDDIE A. GARCIA, Petitioner/Defendant-Appellant.
SCWC-13-0000059
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0000059; FC-CR. NO. 11-1-0288(4))
JUNE 15, 2015
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY RECKTENWALD, C.J.
The central issue is whether the family court erred in
denying Defendant Eddie A. Garcia’s Motion to Withdraw his Plea
of No Contest before sentencing.
Garcia was charged with continuous sexual assault of a
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minor under the age of fourteen, and abuse of a family or
household member. Garcia initially pleaded not guilty, but
changed his plea pursuant to a plea agreement with the State of
Hawai#i. Garcia agreed to plead no contest, and to serve twenty
years of imprisonment for continuous sexual assault and one year
for abuse, to run concurrently. In turn, the State agreed to
remain silent at Garcia’s minimum term hearing before the Hawai#i
Paroling Authority (HPA). The family court accepted the plea
agreement, found Garcia guilty as charged, ordered the
preparation of a pre-sentence investigation (PSI) report, and
scheduled Garcia’s sentencing hearing.
The Deputy Prosecuting Attorney (Prosecutor) then
submitted a letter and three exhibits to the probation office for
inclusion in Garcia’s PSI report. Prosecutor’s letter commented
on the significance of the exhibits and drew conclusions that
included recommendations relevant to sentencing. For example,
the letter described Garcia as a “master manipulator” who avoided
responsibility for his “sexually predatory” actions, and
contended that there should be “no factors” which would weigh
against imprisonment and a “lengthy” list of factors supporting
imprisonment. (Emphasis in original).
Before sentencing, Garcia moved to withdraw his no
contest plea, arguing that Prosecutor’s submission constituted a
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breach of the plea agreement and was a fair and just reason to
withdraw his guilty plea because Prosecutor knew the letter and
exhibits would be transmitted to the HPA. The parties eventually
stipulated that the submission would have been forwarded to the
HPA for its consideration at the minimum term hearing. However,
the family court denied the motion to withdraw because Garcia
filed his motion before sentencing, and therefore the PSI report
containing Prosecutor’s submission could be intercepted before it
reached the HPA. Although the family court denied Garcia’s
motion, it ordered that the PSI report be stricken from the
record and kept under seal, ordered that a new PSI report be
prepared by a probation officer other than the one who prepared
the first report, and prohibited the State from communicating
with the probation officer responsible for preparing the new PSI
report.
Pursuant to Garcia’s plea, the family court convicted
Garcia of the two counts and sentenced him to twenty years of
incarceration for continuous sexual assault and one year for
abuse of a family or household member, to run concurrently. On
appeal, the Intermediate Court of Appeals (ICA) concluded that
the family court did not err in denying Garcia’s motion to
withdraw his no contest plea.
We conclude that Garcia’s motion should have been
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granted. Prosecutor’s submission of the letter and exhibits,
despite the plea agreement, was a fair and just reason for
Garcia’s withdrawal of his plea, and the State had not relied
upon the guilty plea to its substantial prejudice. Accordingly,
we vacate the family court’s Findings and Order and the judgment
on appeal of the ICA, and remand the case to the family court for
further proceedings consistent with this opinion.
I. Background
A. Family Court Proceedings
On August 24, 2010, a Maui High School administrator
contacted the Maui Police Department (MPD) because a fifteen-
year-old student reported being sexually assaulted by her father.
Later that day, after MPD detectives interviewed the student and
her mother, MPD identified Garcia, the student’s father, arrested
him, took him into custody, and served him with a restraining
order. Garcia confessed to hitting his daughter (Daughter) with
plastic coat hangers on the backs of her legs, and later
confessed in detail to sexually abusing Daughter on a regular
basis since she was ten years old. Garcia confessed that he
started engaging Daughter in sexual touching when she was ten
years old, and started having sexual intercourse with her when
she was around twelve years old. He confessed that at first he
had sexual intercourse with her only once per week, but that the
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frequency increased over time to four to six times per week.
Garcia was charged with one count of Continuous Sexual
Assault of a Minor Under the Age of Fourteen Years in violation
of HRS § 707-733.6,1 and one count of Abuse of a Family or
Household Member in violation of HRS § 709-906.2
Garcia pleaded not guilty, but later entered a no
contest plea pursuant to a plea agreement. Under the plea
agreement, Garcia agreed to plead no contest, and to serve twenty
years of imprisonment for continuous sexual assault and one year
for abuse, to run concurrently. The State, in turn, agreed to
“remain silent at the minimum term hearing [before the HPA].”
During the change-of-plea colloquy, the family court
asked Garcia several questions to determine whether he understood
the terms of the plea agreement.3 When the family court asked
Garcia if he could speak, read, write, and understand English,
1
HRS § 707-733.6 provides, in relevant part:
(1) A person commits the offense of continuous sexual
assault of a minor under the age of fourteen years if
the person:
(a) Either resides in the same home with a minor under
the age of fourteen years or has recurring access to
the minor; and
(b) Engages in three or more acts of sexual
penetration or sexual contact with the minor over a
period of time, while the minor is under the age of
fourteen years.
2
Under HRS § 709-906, it is “unlawful for any person . . . to
physically abuse a family or household member[.]”
3
The Honorable Richard T. Bissen, Jr. presided.
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and whether he understood the terms of the plea agreement, Garcia
responded in the affirmative. Garcia also responded in the
affirmative when the court asked if he understood that by
entering his plea of no contest, he was giving up his
constitutional rights to plead not guilty and have a jury trial.
When the family court asked Garcia if he understood that he would
receive a twenty-year sentence and thus was not eligible for
probation, Garcia again responded in the affirmative. The family
court asked Garcia if he understood that Prosecutor agreed to
“remain silent at the minimum term hearing[,]” to which Garcia
responded in the affirmative; the family court did not ask Garcia
to explain his interpretation of the meaning of Prosecutor’s
promise. The family court accepted Garcia’s no contest plea,
informed the parties that the court would sentence Garcia in
accordance with the terms of the plea agreement, found Garcia
guilty on both counts, ordered the preparation of a PSI report,
and on June 1, 2012, scheduled Garcia’s sentencing hearing for
August 1, 2012.
In late June and early July of 2012, Garcia’s family
and friends submitted letters in support of Garcia to Adult
Client Services (ACS) for inclusion in Garcia’s PSI report. In a
letter dated July 1, 2012, Daughter asked the court to consider
lessening Garcia’s sentence because her mother was struggling to
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take care of four children and needed Garcia’s financial support.
On July 23, 2012, Prosecutor submitted a letter and
three accompanying exhibits to ACS for inclusion in Garcia’s PSI
report. Prosecutor’s letter explained that the State understood
that Garcia’s sentence was predetermined by the plea agreement,
but nevertheless wanted “to point out some aggravating
factors[.]”
Prosecutor’s letter described the contents and
commented on the significance of the three exhibits submitted to
ACS along with the letter. The letter drew attention to Garcia’s
confession, which was attached as Exhibit 1, that Garcia began
using Daughter as his sexual partner when she was ten years old
and continued doing so “on an almost daily basis” until her
friends reported the conduct when Daughter was fifteen. The
letter pointed out that the types and frequency of sexual abuse
recounted by Garcia in his confession matched Daughter’s
statements. The letter stated that even after Garcia confessed,
he “took every available route to avoid having to take
responsibility for his aberrant and sexually predatory actions.”
(Emphasis in original). The Prosecutor added that Garcia
“pretended to be this caring parent who wanted to make it easy on
his daughter and accept responsibility from the beginning with
the police, but true to his real character, that did not last
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long.” The letter continued by stating that Garcia “soon pulled
the ‘I don’t speak English card,’” and requested an interpreter
for trial even though the record, which included a letter written
by Garcia in a prior case and which Prosecutor attached as
Exhibit 2, demonstrated that Garcia had an “excellent level of
command of English[.]” Prosecutor argued that Garcia
“demonstrated that he is a master manipulator, who cannot be
trusted.” (Emphasis in original).
Prosecutor’s letter further noted that a letter written
by Daughter, which was attached as Exhibit 3, revealed that
Garcia violated the August 24, 2010 restraining order when he
asked his wife to ask Daughter to write him a letter about her
feelings. Prosecutor stated that “[o]f course” this was a
violation of the restraining order, but this violation was not
charged, and this violation demonstrated that Garcia was “still
manipulating everyone.”
Prosecutor’s letter concluded that the three exhibits
revealed that Garcia caused his family, and especially Daughter,
to experience severe hardships.
The letter asserted that “[g]iven the facts of this
case, . . . Garcia should have a lengthy list of factors
supporting imprisonment[,]” and “that there should be no factors
listed to withholding imprisonment.” (Emphasis in original).
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On July 25, 2012, Garcia’s defense counsel moved to
withdraw as counsel, because Garcia asserted to the court that
the defense counsel tricked him into changing his plea. At the
hearing on the motion to withdraw, Garcia testified that he
wanted a new attorney to help him file a motion to withdraw his
no contest plea. Prosecutor opposed the defense counsel’s motion
to withdraw, arguing that Garcia’s allegation that he was tricked
was an attempt to manipulate the system. The family court
granted the motion, but clarified that it was doing so only
because it found that the relationship between Garcia and his
public defender could not be repaired. The family court
explained that a new attorney would be appointed to appear at
sentencing, but not to help Garcia file a motion to withdraw his
plea because Garcia had already changed his plea and been found
guilty.
On September 13, 2012, with the assistance of a new
attorney (Dunn),4 Garcia filed a motion to withdraw his no
contest plea on the grounds that: “(1) the State violated its
plea agreement with [Garcia]; and (2) [Garcia’s] No-Contest plea
was not voluntarily made.” Garcia explained in a declaration
4
Christopher M. Dunn, Esq., a court-appointed private attorney,
represented Garcia for the filing of his motion to withdraw his no contest
plea. The motion was filed along with a declaration by Garcia and a
memorandum of law.
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that Dunn informed him that Prosecutor breached the plea
agreement by submitting a “scathing letter with attached
exhibits” for inclusion in the PSI report, because Prosecutor
knew that the submission would be transmitted to the HPA. He
argued this constituted a fair and just reason for withdrawal and
that the State had not relied upon his guilty plea to its
substantial prejudice. Garcia also explained that he told his
public defender that he did not want to enter into the plea
agreement because he did not understand its terms, but entered
into the agreement nonetheless because his public defender told
him “that failure to change [his] plea as scheduled would be
perceived as an insult to the Court[.]”
In opposition to Garcia’s motion to withdraw his no
contest plea, the State argued that Garcia did not meet his
burden to show a fair and just reason for withdrawal of his plea,
in pertinent part because Prosecutor’s “letter complies with the
plea agreement and does not make any recommendation for a minimum
term to the [HPA].” The State also argued that if the court
found that Prosecutor’s letter did breach the plea agreement,
“the remedy would be to strike the letter from the PSI [report]
rather than allow the Defendant to withdraw his plea of no-
contest.” Finally, the State argued that the record established
that Garcia understood the terms of the plea agreement and that
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his plea was voluntary.
On November 14, 2012, the State filed a declaration of
Prosecutor in support of the State’s memorandum in opposition to
Garcia’s motion to withdraw his no contest plea (Declaration).
In the Declaration, Prosecutor stated that the plea agreement
related only “to the minimum term hearing, not to any sentencing
matters,” and that the State had “every right to make comments
for inclusion in the [PSI] report which are relevant to
sentencing.” Prosecutor also declared that “under the plain
language analysis, there simply was no violation of the plea
agreement[.]”
At the hearing on Garcia’s motion to withdraw his no
contest plea and sentencing, the family court accepted the
parties’ stipulation that PSI reports are forwarded to the HPA
after sentencing and are available for the HPA’s consideration at
minimum term hearings, and took judicial notice of the PSI report
containing Prosecutor’s submission.
Also at the hearing, Dunn argued that Prosecutor’s
letter was a breach of the plea agreement because it was intended
for the HPA. Dunn also argued that because the State “breached
the only meaningful promise that [it] made in [its] plea
agreement[,]” Garcia met his burden to present a fair and just
reason for granting his motion to withdraw his no contest plea.
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Dunn further argued that Garcia’s plea was not voluntary because
it was made in response to the public defender’s comment that the
judge would be upset if Garcia refused the plea offer and thus
Garcia entered the plea agreement out of fear of reprisal.
In response, the State argued that there was no breach
of the plea agreement, and even if a breach occurred, the family
court should deny Garcia’s motion and either: (1) strike just
Prosecutor’s submission if the court determines that the
submission did not influence the probation officer’s conclusion
in the PSI report that there were “zero mitigating circumstances
and eighteen circumstances for prison[,]” or (2) strike the
entire PSI report “and start all over again[.]” The State also
argued that the record reveals that Garcia “voluntarily,
knowingly, and intelligently entered into his change of plea.”
The family court engaged Dunn in the following
discussion:
THE COURT: But on that issue alone of the letter
being contaminating -- somehow contaminating the
Court, I will say that it may have had an influence on
this, perhaps. And that it would likely have an
influence on [HPA] if it got there, but that it has
not. And that the Court can order that a new [PSI
report] be prepared without the influence of the
State’s letter.
And, in fact, that is what the Court would
intend to do. Does that satisfy, at least, that issue
that the defense has argued?
MR. DUNN: I agree with you that, that is a potential
remedy that the Court has.
. . .
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MR. DUNN: . . . I’m not conceding it, but let’s call
it an attempted breach.
THE COURT: Okay.
MR. DUNN: So an attempted breach maybe doesn’t rise
to manifest injustice, but isn’t it a fair and just
reason to take it back when the very person that
you’re bargaining with --
THE COURT: Right.
MR. DUNN: -- has attempted to undermine the only
meaningful provision in your agreement? So that’s a
fair and just reason to take this thing back.
THE COURT: I’m not making a finding that they have
undermined.
MR. DUNN: They attempted to.
THE COURT: I’m not even agreeing that they have
attempted to undermine. They have obviously put in a
letter that they could have said -- could have made
all these arguments at the sentencing anyway.
MR. DUNN: Right.
THE COURT: That would become a record. Now, we both
know the transcripts are not ordinarily ordered by the
[HPA]. They’re only received if one of the two
parties in this case ordered them. I couldn’t imagine
either party doing that.
MR. DUNN: Well, it would be a breach by the State --
THE COURT: I can’t imagine the defense would do that.
MR. DUNN: Right.
THE COURT: But it’s public record. It can be
reported in a variety of ways, to the press, if
somebody’s ordering transcripts, whatever. The victim
can come forward. The victim can share whatever the
victim wishes to share at the hearing.
So I’m still simply saying there is a
remedy, however -- whatever intentions either side
wants to argue was attached to this letter, the fact
is that there’s been no breach is the Court’s
findings. There has been no breach.
The Court can prevent this from going
to -- and honoring the agreement that was bargained
for by both sides, and that is to strike the letter
and to order that a new [PSI report] be prepared[.]
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The family court then concluded that based on the
record and the hearings, Garcia lacked credibility and thus his
argument that he did not understand or voluntarily accept the
terms of the plea agreement was “not believable.” The court
explained that under the terms of the plea agreement:
[Garcia] was going to be able to have a clear argument
to make at the minimum term hearing without the State
being there or making a suggestion. That was the
benefit in this case. And he can still get that
benefit if the Court orders a new [PSI report]. So
there was something to be gained.
What also turned this case was a motion in limine of
the voluntariness hearing. The Court ruled that the
statements he made and the full confession that he
gave in these cases were voluntarily made. And
sometimes defendants don’t want facts to come out
publicly that are embarrassing. . . .
[D]efense seems to argue that the only explanation for
himself accepting this deal was his attorney forcing
him into it, and I don’t believe that to be true.
The family court then denied Garcia’s motion to
withdraw his no contest plea. The family court also ordered that
the PSI report containing Prosecutor’s submission be stricken
from the record, stated that the PSI report would continue to be
kept under seal, ordered that a new PSI report be prepared by a
probation officer other than the one who prepared the first PSI
report, and prohibited the State from communicating with the
probation officer responsible for preparing the new PSI report.
On January 8, 2013, the family court entered its
“Findings and Order Denying Defendant’s Motion to Withdraw No
Contest Plea” (Findings and Order). The Findings and Order
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includes the following findings:
1. The July 23, 2012, letter written by [Prosecutor]
addressed to Senior Probation Officer, . . . was
incorporated into [Garcia’s PSI] Report . . . ;
2. [Garcia] has not been sentenced and therefore, the
[PSI Report] has not been used by the Court, nor has
the [PSI Report] been sent to [HPA], for its
consideration in setting a minimum term in this case,
HENCE, the Department of the Prosecuting Attorney has
not made any indirect minimum term arguement [sic] to
the [HPA];
3. The State of Hawai#i, did not breach the plea
agreement between the parties, by attempting to
indirectly communicate with the [HPA];
The Findings and Order also found that Garcia was not
credible, and his argument that his no contest plea was not
voluntary was unpersuasive. On January 18, 2013, the family
court entered its Judgment finding Garcia guilty as charged and
sentencing Garcia to twenty years of imprisonment for the sexual
assault of Daughter, and one year for the abuse of Daughter, to
run concurrently. Garcia timely appealed.
B. ICA Appeal
Garcia argued that the family court erred in denying
his motion to withdraw his plea because pursuant to Prosecutor’s
agreement to “remain silent at the minimum term hearing” before
the HPA, the “prosecution was not entitled to make any more
factual assertions or comments on the record.” Garcia also
argued that Prosecutor breached her “promise to ‘remain silent’”
when Prosecutor attempted to circumvent the terms of the plea
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agreement by “writing an inflammatory letter headed to the HPA.”
Garcia explained that the agreement was breached when “the letter
became part of the [PSI] report” because after sentencing, the
HPA “receives the [PSI] report before determining an inmate’s
minimum term.”
Garcia further argued that the “family court’s finding
that no breach occurred because the letter was never submitted to
the HPA makes no sense.” Garcia explained that his “timely
objection to the letter does not change the simple fact that the
prosecution broke its promise.” He noted that because he moved
for withdrawal of his guilty plea before sentencing, the family
court should have granted the motion if he presented a fair and
just reason for withdrawal and the State had not relied upon his
guilty plea to its substantial prejudice. And finally, Garcia
argued that because the family court erred in concluding that
Prosecutor did not breach the plea agreement, it also erred in
failing to consider whether Garcia was entitled to his preferred
choice of remedies for the alleged breach -- withdrawal of his no
contest plea and a jury trial.
In its answering brief, the State argued that the
prosecution did not breach the plea agreement because the PSI
report containing Prosecutor’s submission did not reach the HPA.
The State also argued that the prosecution did not breach the
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spirit of the plea agreement because Garcia suffered no prejudice
as a result of Prosecutor’s submission. The State further argued
that even if the prosecution did breach the spirit of the plea
agreement, the breach did not violate Garcia’s fundamental rights
because Prosecutor’s submission did not reach the HPA and thus
the HPA was not influenced by the submission.
In reply, Garcia argued that “[i]t is irrelevant
whether the HPA received the offensive letter” because the
agreement induced Garcia to agree “to a twenty-year prison
sentence and [to give] up his constitutional right to a jury
trial.” Garcia also argued that the prosecution has “no
authority supporting its position that a breach can somehow be
determined by ignoring the language of the agreement and
prosecutor’s subsequent conduct and focusing only on the results
of her conduct.” Garcia explained that the State’s approach
affords Garcia “no opportunity . . . to file a motion to withdraw
his no-contest plea prior to sentencing” and thus is inconsistent
with Rules 11(f)(2)5 and 32(d)6 of the Hawai#i Rules of Penal
5
Rule 11(f)(2) (2015) of Hawai#i Rules of Penal Procedure (HRPP)
provides, in relevant part: “Failure by the prosecutor to comply with [a
plea] agreement shall be grounds for withdrawal of the plea.”
6
HRPP Rule 32(d) (2015) provides:
A motion to withdraw a plea of guilty or of nolo
contendere may be made before sentence is imposed or
imposition of sentence is suspended; provided that, to
correct manifest injustice the court, upon a party’s
motion submitted no later than ten (10) days after
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Procedure (HRPP), and with the “liberal approach” taken by this
court when a defendant makes a motion to withdraw his plea before
sentencing.
In a Summary Disposition Order (SDO), the ICA held that
the “family court correctly found the State did not breach the
plea agreement,” and in doing so, implicitly agreed with the
family court’s conclusion that a breach did not occur because the
PSI report containing Prosecutor’s letter and accompanying
exhibits did not reach the HPA. The ICA declined to address
Garcia’s other contentions because they were “premised upon
Garcia’s contention that the State breached the parties’ plea
agreement.” We accepted Garcia’s timely application for writ of
certiorari.
II. Standards of Review
This court evaluates a defendant’s motion to withdraw
his plea “under either of two established principles.” State v.
Merino, 81 Hawai#i 198, 223, 915 P.2d 672, 697 (1996) (quoting
State v. Jim, 58 Haw. 574, 574-75, 574 P.2d 521, 521-22 (1978)).
imposition of sentence, shall set aside the judgment
of conviction and permit the defendant to withdraw the
plea. At any later time, a defendant seeking to
withdraw a plea of guilty or nolo contendere may do so
only by petition pursuant to Rule 40 of these rules
and the court shall not set aside such a plea unless
doing so is necessary to correct manifest injustice.
(Emphasis added).
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Where the request is made after sentence has been
imposed, the “manifest injustice” standard is to be
applied. But where the motion is presented to the
trial court before the imposition of sentence, a more
liberal approach is to be taken, and the motion should
be granted if the defendant has presented a fair and
just reason for his request and the State has not
relied upon the guilty plea to its substantial
prejudice. What the manifest injustice rule seeks to
avoid is an opportunity for the defendant to test the
severity of sentence before finally committing himself
to a guilty plea. But the risk of prejudice to the
State and to the efficient administration of criminal
justice is much less apparent where the withdrawal is
requested before final judicial action is taken on the
defendant's plea.
Jim, 58 Hawai#i at 576, 574 P.2d at 522-23 (citations and
quotations omitted).
“The denial of an HRPP [Rule] 32(d) motion to withdraw
a plea of nolo contendere, or ‘no contest,’ prior to the
imposition of sentence[,] is . . . reviewed for abuse of
discretion.” Merino, 81 Hawai#i at 211, 915 P.2d at 685. A
trial court abuses its discretion when it “clearly exceed[s] the
bounds of reason or has disregarded rules or principles of law or
practice to the substantial detriment of a party litigant.” Id.
III. Discussion
Because Garcia moved to withdraw his guilty plea before
sentencing, this court must determine whether Prosecutor’s
submission of the letter and three exhibits for inclusion in
Garcia’s PSI report constitutes a fair and just reason for his
request to withdraw his guilty plea, and whether the State relied
on the plea to its substantial prejudice. See Jim, 58 Hawai#i at
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576, 574 P.2d at 522-23.
Accordingly, we must consider the effect of
Prosecutor’s submission in light of the State’s agreement to
“remain silent at the minimum term hearing [before the HPA].” In
exchange for this agreement, Garcia agreed to forego his right to
a jury trial and to serve concurrent sentences of twenty years
and one year.
Garcia argues that “it should have been obvious to the
prosecution that the PSI report was not for the sentencing
court’s benefit, but for the HPA.” Garcia further argues that
the State’s agreement to “remain silent at the minimum term
hearing [before the HPA]” prohibited both communications at the
minimum term hearing and communications that would reach the HPA
prior to the hearing. Garcia also argues that if the plea
agreement is at all ambiguous, its meaning must be construed in
Garcia’s favor under State v. Nakano, 131 Hawai#i 1, 313 P.3d 690
(2013). And, Garcia implicitly argues that even if Prosecutor
did not breach the literal terms of the plea agreement, the
submission was a breach of the spirit of the plea agreement.
The State did not file a response to Garcia’s
application, but argued in its answering brief in the ICA that
Prosecutor’s submission was not a breach because it did not reach
or influence the HPA, and because Garcia suffered no prejudice as
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a result of Prosecutor’s submission. The State also conceded
that under Hawai#i law, the State cannot attempt to accomplish
indirectly what it had promised not to do directly.
It is well settled in this jurisdiction that “[w]hen 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 [for the plea], such promise must be
fulfilled.” Nakano, 131 Hawai#i at 7, 313 P.3d at 696
(quotations omitted) (emphasis in original) (citing Santobello v.
New York, 404 U.S. 257, 262 (1971)); see also State v. Adams, 76
Hawai#i 408, 414, 879 P.2d 513, 519 (1994) (“It is well settled
that the terms of a plea agreement, which serve as the inducement
for entering a plea, must be fulfilled.”) (citing State v. Costa,
64 Haw. 564, 566, 644 P.2d 1329, 1331 (1982), and Santobello, 404
U.S. at 262); Yoon, 66 Haw. at 347, 662 P.2d at 1115 (holding
that due process requires that the State fulfill its end of the
bargain if the defendant’s plea “rested in any significant degree
on a promised resolution”) (citing Santobello, 404 U.S. at 262).
When the State enters a plea agreement, “the liberty of
the defendant[,] . . . the honor of the government, public
confidence in the fair administration of justice, and the
efficient administration of justice[,]” are all at stake. People
v. Sanders, 191 Cal. App.3d 79, 87 (Cal. Ct. App. 1987)
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(quotation marks and brackets omitted). These concerns are
heightened given the prevalence of plea bargaining in the
resolution of cases. Indeed, plea bargaining “is not some
adjunct to the criminal justice system,” in some sense “it is the
criminal justice system.” United States v. Kentucky Bar Assoc.,
439 S.W.3d 136, 140 (Ky. 2014) (emphasis in original) (quoting
Missouri v. Frye, 132 S.Ct. 1399, 1407 (2012)). As one court has
noted, the integrity of a plea agreement is a serious matter
because
[i]f a defendant cannot rely upon an agreement made
and accepted in open court, the fairness of the entire
criminal justice system would be thrown into question.
No attorney . . . could in good conscience advise his
client to plead guilty and strike a bargain if that
attorney cannot be assured that the prosecution must
keep the bargain and not subvert the judicial process
through external pressure whenever the occasion
arises.
State v. Tourtellotte, 88 Wash.2d 579, 584 (1977); see United
States v. Peglera, 33 F.3d 412, 414 (4th Cir. 1994) (“Because a
government that lives up to its commitments is the essence of
liberty under law, the harm generated by allowing the government
to forego its plea bargain obligations is one which cannot be
tolerated.”).
Additionally, if the integrity of plea agreements is
not enforced, defendants may lose trust and confidence in the
defense counsel who recommended the plea agreement. This outcome
would directly undercut the attorney-client relationship. See
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State v. Gaylord, 78 Hawai#i 127, 141, 890 P.2d 1167, 1181 (1995)
(the attorney-client relationship requires “the highest degree of
trust and confidence”).
Prosecutor’s submission to the ACS was inconsistent
with Prosecutor’s promise to “remain silent at the minimum term
hearing” before the HPA. There is no dispute that Prosecutor
submitted the letter and three exhibits to ACS for inclusion in
Garcia’s PSI report even though Prosecutor knew the family court
planned to sentence Garcia to a twenty-year term in accordance
with the plea agreement. Moreover, the parties stipulated that
the PSI report would have been forwarded to the HPA after
sentencing and that the report would have been available for
consideration as part of the minimum term hearing.
This is not a situation in which the State
inadvertently shared information that it was prohibited from
sharing. Rather, the eventual dissemination of the letter to the
HPA would be a predictable result of Prosecutor’s actions.
Prosecutor’s submission contained not just factual
information that Prosecutor might reasonably be expected to
convey to the sentencing court, see HRS § 706-702 (a pre-sentence
report “shall include,” e.g., criminal history, economic status,
and information regarding impact on the victim), but also drew
conclusions from this factual information and presented argument
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attacking Garcia’s character. For example, along with
permissibly submitting the transcript of Garcia’s confession,
Prosecutor argued: that Garcia “is a master manipulator who
cannot be trusted,” that “Garcia should have a lengthy list of
factors supporting imprisonment” and “no factors” for withholding
imprisonment,” that Garcia “took every available route to avoid
having to take responsibility for his aberrant and sexually
predatory actions,” that Garcia “pretended to be this caring
parent who wanted to make it easy on his daughter and accept
responsibility from the beginning with the police, but true to
his real character, that did not last long,” and that Garcia
“soon pulled the ‘I don’t speak English card.’” (Emphasis in
original).
Although the family court’s intervention protected
Garcia from being prejudiced at the HPA, it could not undo the
impact on Garcia’s perception of the integrity of the system and
the trustworthiness of the government and his own counsel.
The State now concedes: “If that letter had gotten
into the hands of the . . . HPA I would take the position yes
that would be a breach.” Oral Argument at 33:34-33:52, State v.
Garcia, No. SCWC-13-0000059, available at
http://state.hi.us/jud/oa/14/SCOA_090414_13_059.mp3. Moreover,
the State concedes that but for the filing of Garcia’s motion and
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the family court’s intervention, Prosecutor’s submission would
have reached the HPA.
The parties have focused much of their analysis on
whether the Prosecutor breached the plea agreement, given the
remedial steps taken by the family court. However, we need not
resolve the question of whether a breach was consummated.
Rather, in motions to withdraw a plea prior to sentencing,
appellate courts take a liberal approach and apply the “fair and
just” standard. Jim, 58 Haw. at 576, 574 P.2d at 522-23; see
State v. Gomes, 79 Hawai#i 32, 36, 897 P.2d 959, 963 (1995);
Adams, 76 Hawai#i at 411, 879 P.2d at 516; Merino, 81 Hawai#i at
223, 915 P.2d at 697.
[T]he motion should be granted if the defendant has
presented a fair and just reason for his request and
the State has not relied upon the guilty plea to its
substantial prejudice.
Jim, 58 Hawai#i at 576, 574 P.2d at 522-23.
For the reasons discussed above, Prosecutor’s
submission constituted a “fair and just” reason for Garcia’s
request to withdraw his plea. To the extent that the agreement
was ambiguous by not expressly prohibiting Prosecutor from
submitting argumentative material in the PSI that would violate
the agreement if conveyed directly to the HPA, the ambiguity must
be construed against the State. See Nakano, 131 Hawai#i at 7,
313 P.3d at 696. Put another way, if the State wanted to reserve
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the right to present such argument to the court as part of the
PSI, it should have expressly said so in the agreement.
Further, the State did not satisfy its burden, Gomes,
79 Hawai#i at 40, 897 P.2d at 967, to demonstrate substantial
prejudice if the motion to withdraw the plea was granted.
Accordingly, the family court abused its discretion in
denying Garcia’s motion to withdraw his guilty plea.
IV. Conclusion
For the foregoing reasons, we vacate the judgment on
appeal of the ICA and the family court’s January 8, 2013 Findings
and Order, and remand to the family court for further proceedings
consistent with this opinion.
Benjamin E. Lowenthal /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Richard K. Minatoya
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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