State v. Pedro.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
04-JUN-2021
08:04 AM
Dkt. 13 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,

vs.

THEO PEDRO,
Petitioner/Defendant-Appellant.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 2FFC-XX-XXXXXXX(4))

JUNE 4, 2021

McKENNA, WILSON, AND EDDINS, JJ., WITH WILSON, J., ALSO
CONCURRING SEPARATELY, AND RECKTENWALD, C.J., CONCURRING IN PART
AND DISSENTING IN PART, WITH WHOM NAKAYAMA, J., JOINS

OPINION OF THE COURT BY EDDINS, J.

Theo Pedro (“Pedro”) pleaded no contest to four counts of

sexual assault in the second degree. Before sentencing, Pedro

moved to withdraw his pleas. He said he was innocent. He
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wanted a trial. The Circuit Court of the Second Circuit (the

“circuit court,” “trial court,” or “court”) denied Pedro’s

motion. The Intermediate Court of Appeals (the “ICA”) affirmed

the circuit court’s decision and we granted Pedro’s application

for certiorari.

Consistent with our “liberal approach” to deciding motions

for plea withdrawal before sentencing, see State v. Jim, 58 Haw.

574, 576, 574 P.2d 521, 522-23 (1978), we conclude that Pedro

presented a “fair and just reason” for the withdrawal of his

pleas. The trial court erred in denying Pedro’s motion.

Accordingly, we vacate the Judgment of Conviction and Sentence

and remand this case to the circuit court.

I. BACKGROUND

A June 2018 indictment charged Pedro with four counts of

sexual assault in the first degree, attempted sexual assault in

the first degree, sexual assault in the fourth degree, and

kidnapping. Count 1 alleged:

That on or about the 24th day of June, 2018, in the County
of Maui, State of Hawaii, THEO PEDRO did knowingly subject
another person to an act of sexual penetration by strong
compulsion, to wit, by placing his finger into her genital
opening, thereby committing the offense of Sexual Assault
in the First Degree in violation of Section 707-730(1)(a)
of the Hawaii Revised Statutes. 1

1
The remaining sexual assault in the first degree charges tracked the
language of count 1. They differed only in the alleged conduct
constituting sexual penetration by strong compulsion. Counts 2 and 4
described the act as “placing his penis into her genital opening;” count 3
as “engaging in the act of cunnilingus.” Count 5 alleged an attempted act
of sexual penetration by strong compulsion. Count 7, sexual assault in

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The Family Court of the Second Circuit arraigned Pedro on

July 2, 2018. 2 Pedro appeared in custody with a deputy public

defender and court-appointed Marshallese interpreter. He said

he spoke some English and had been in the United States since

2013. Pedro’s attorney waived reading of the indictment and

entered not guilty pleas for Pedro. 3 The court scheduled a

September trial.

Defense counsel twice orally moved to continue the trial.

The court scheduled a February 25, 2019 trial. Then the defense

moved to compel discovery, seeking information purportedly

“material to the preparation of the defense” from the Maui

Police Department, the Children’s Justice Center, and the Maui

the fourth degree, alleged sexual contact by compulsion. The indictment
did not define “strong compulsion” or “compulsion.”
2
The indictment was filed on June 29, 2018, in the Family Court of the Second
Circuit and the family court arraigned Pedro. But Pedro was neither the
parent nor the guardian of his alleged victim, and the record does not
suggest any other basis for the family court’s jurisdiction under Hawai‘i
Revised Statutes (“HRS”) § 571-14(a)(1). Any potential jurisdictional defect
is, however, immaterial. The Circuit Court of the Second Circuit had
jurisdiction under HRS § 603-21.5, and family courts are “divisions of the
circuit courts of the State . . . ” HRS § 571-3. In State v. Malave, 146
Hawaiʻi 341, 463 P.3d 998 (2020), we explained that since “circuit court
judges sitting in family court have authority over both circuit and family
matters,” when a circuit court judge presides over a family court matter, it
does not matter whether or not the family court has jurisdiction under HRS §
571-14(a). Id. at 349, 463 P.3d at 1006. We take judicial notice of the
fact that Judge Richard T. Bissen, Jr. was appointed to the Circuit Court of
the Second Circuit in 2005 and was serving as Chief Judge of the Circuit
Court of the Second Circuit at the time he presided over Pedro's case.
3
It is unclear whether Pedro received the indictment or reviewed it with
counsel and the interpreter before the arraignment. Pedro’s counsel
declared: “And, your honor, since I have received the indictment at this time
waive reading. Enter not guilty.”

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Department of the Prosecuting Attorney.

At the January 7, 2019 hearing on the motion to compel

discovery, Pedro’s counsel announced that the parties had

reached a plea agreement: Pedro would plead no contest to

amended charges of sexual assault in the second degree in counts

1-4 and the State would dismiss counts 5-7 (attempted sexual

assault in the first degree, kidnapping, and sexual assault in

the fourth degree). The plea agreement’s sentencing disposition

permitted the State to argue for, at most, concurrent ten-year

terms of imprisonment. Pedro could argue for probation. The

trial court was not bound to follow the plea agreement. It

could ignore its terms. 4

Pedro’s decision to accept the plea agreement was

unexpected, anticipated by neither defense counsel, nor the

prosecutor, nor the court before January 7, 2019. Completion

and review of “Form K,” the Hawaiʻi Rules of Penal Procedure

(“HRPP”) standard change of plea document, happened shortly

before Pedro entered the courtroom. Defense counsel represented

that, with the interpreter’s assistance, he and Pedro had

reviewed the form, and a September 21, 2018 letter from the

deputy prosecuting attorney detailing the proposed plea

4
The plea agreement cautioned Pedro: “It is further understood that the
sentence to be imposed upon the Defendant is within the sole discretion of
the sentencing judge, and that this department does not make any promise or
representation as to what sentence the Defendant will actually receive.”

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agreement. Pedro had signed the form.

In court, defense counsel recited the plea agreement’s

terms. The court asked Pedro whether he understood the terms.

Pedro replied, “Yes, your Honor.” The court advised: “Now, you

have an interpreter with you here. If you don’t understand what

I’m saying, and you wish to respond, you may do so in English.

If you need the assistance of the interpreter, she’s there to

help you as well.” A plea colloquy ensued. Pedro addressed the

court both in English and in Marshallese through the

interpreter. Pedro stated he was 33 years old and attended

school “up until the ninth grade.” He felt clear minded.

The trial court’s plea colloquy entailed reading each

paragraph of Form K, the change of plea document, and asking

Pedro whether the statement was true.

The Court: Two says, I have received a written copy of the
original charges in this case. The charges have been
explained to me. I understand the original charges against
me. Is that true?

The Defendant: Yes, sir.

The Court: I told my lawyer all of the facts I know about
the case. My lawyer explained the government’s evidence
against me, my possible defenses, and the facts which the
government must prove in order to convict me. Is that all
true?

The Defendant: Yes, your Honor.

The Court: Item three reads, I understand the reduced
charges of sexual assault in the second degree in counts
one through four with which the government has agreed to
charge me, instead of the original charges of sexual
assault in the first degree. Is that true?

The Defendant: Right, your Honor.

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The Court: Are you saying correct, I couldn’t hear what
you said.

The Defendant: Yeah. Yes. Yes, your Honor.

The court continued reciting the plea form’s numbered

paragraphs. It asked Pedro to confirm his agreement with

the form’s statements. Pedro responded to each question

with “Yes, your Honor” or a slight variation.

The court reviewed the plea agreement’s terms with Pedro. 5

Pedro said he understood the agreement. Paragraph 8 of the

change of plea form advised: “I know that the court is not

required to follow any deal or agreement between the Government

and me.” The court made a sentencing inclination. It told

Pedro, “if the Court were to grant prison or, um, order prison,

that the Court would not exceed the State’s recommendation with

concurrent sentencing.”

Before asking for Pedro’s plea, the court summarized

paragraph 11 of the change of plea form: “I’m signing this no

contest plea form after I have gone over all of it with my

lawyer, and while I will not be permitted to withdraw my plea, I

am signing this form in the presence of my lawyer. I have no

complaints about my lawyer. I am satisfied with what he has

5
Later in the hearing, the circuit court also reviewed a “Sex Offender
Addendum” with Pedro. Pedro acknowledged understanding, signing, and
reviewing the document with his attorney. When asked whether he had read the
form or had it interpreted for him, Pedro answered, “Correct, your Honor.”
The document advised Pedro that he would have to comply with Hawaiʻi’s sex
offender registration laws. Under HRS § 846E-10, Pedro would register as a
sex offender for the rest of his life.

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done for me.” The court asked Pedro whether these statements

were true. Pedro replied: “Yes, your Honor.”

Pedro then entered no contest pleas to sexual assault in

the second degree in counts 1-4. Defense counsel stipulated

“for purposes of the no contest plea and the no contest plea

alone” to a factual basis supporting Pedro’s pleas.

The court accepted Pedro’s pleas. It concluded Pedro

voluntarily, knowingly, and intelligently entered his pleas.

Pedro signed the plea form, acknowledging “the Judge questioned

me personally in open court to make sure that I knew what I was

doing in pleading guilty or no contest and understood this form

before I signed it.” The court found Pedro guilty of four

counts of sexual assault in the second degree.

On March 3, 2019, defense counsel filed a Notice of

Disclosure of Discovery Materials. The Notice informed the

State that counsel intended to share discovery materials with

Pedro under HRPP Rule 16(e)(3). 6 That rule states that an:

attorney may provide the defendant with a copy of any
discovery material obtained if the attorney notifies
the prosecutor in writing and files a copy of such

6
The notice read:

Notice is hereby given that counsel for Defendant shall
disclose copies of discoverable materials to Defendant
pursuant to Hawaii Rules of Penal Procedure Rule 16 and an
agreement with the prosecution that the copies shall redact
sensitive personal information including, but not limited
to, social security numbers, dates of birth, account
numbers, telephone numbers, physical addresses, and
identification of involved juveniles.

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intention with the court, and the prosecutor does not
file a motion for protective order within 10 days of
the receipt of the notice.

The court filed a stipulation and order regarding custody

of discovery on March 14, 2019. 7 The record does not indicate

when defense counsel told Pedro of his right under HRPP Rule

16(e)(3) to possess the investigative reports in his case. The

record also reveals neither when Pedro requested his discovery

materials from defense counsel, nor when defense counsel

provided Pedro the materials.

Also on March 14, 2019, defense counsel moved to withdraw

as counsel. A two-paragraph declaration of counsel was all that

supported the motion:

1. I represent Defendant, Theo Pedro, in the above
entitled case. Mr. Pedro does not wish to have the Office
of the Public Defender to represent him in this case and
wishes to have a new attorney represent him.

2. Counsel must withdraw from representation when
discharged by the client. Hawaii Rules of Professional
Conduct Rule 1.16(a)(3).

The circuit court scheduled the hearing on the motion to

withdraw as counsel on Pedro’s sentencing date, March 29,

2019. A presentence report was filed March 21, 2019. On

March 29 the court continued the hearing on the motion to

7
The deputy prosecuting attorney and defense counsel signed the stipulation.
It stated defense counsel notified the prosecuting attorney of an “intention
to provide Defendant with a copy of any and all discovery material pursuant
to Hawaii Rules of Penal Procedure 16(e)(3) . . . .” The parties agreed that
before defense counsel provided discovery to Pedro, he would redact
confidential personal information. The court approved the stipulation and
protective order.

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withdraw as counsel. 8

On April 4, 2019, respective counsel and Pedro appeared,

along with a court interpreter. Defense counsel revealed he had

“another conversation” with Pedro “about his options and what he

wishes to do.” Defense counsel then disclosed the basis for his

motion to withdraw as Pedro’s counsel: Pedro wanted new counsel

appointed to assist him with withdrawal of his pleas. Counsel

stated that it was his “understanding that [Pedro] seeks to

withdraw his no contest plea.” Counsel continued: “given what

was discussed, I would ask that the pending motion to withdraw

as counsel be granted and that a substitute counsel can be

appointed.”

The trial court confirmed Pedro’s desire to start the case

“all over again” with new counsel. It asked him why he wanted

new counsel. Pedro explained through the interpreter: “[M]y

question is to have a new person come help me because I only

worked a little bit of time with this lawyer.” He told the

court he needed a new lawyer to “[e]xplain to me and help me

with this case” and “[e]xplain to me about everything because I

did not understand.”

The court granted the motion to withdraw as counsel. The

written order stated Pedro “has or had a conflict with The
8
The record omits a transcript of the proceeding. The court minutes state:
“After discussion cont’d to 4/4/19, 8 am.”

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Office of the Public Defender.” The court asked an attorney in

the courtroom to represent Pedro. The attorney accepted the

appointment. The court continued sentencing to May 10, 2019.

On May 3, 2019, Pedro’s new attorney moved to withdraw

Pedro’s no contest pleas. 9 Counsel declared that Pedro

“adamantly” maintained his innocence and wanted a trial.

Counsel wrote that Pedro “did not fully understand his options

at trial” and that prior counsel “did not fully explain his

options in regard to a trial,” had “only seen him in person

briefly,” and pressured him into changing his pleas by

“insist[ing] that Defendant’s only option was to accept the

plea offer from the State.”

The State opposed the motion. It cited State v. Gomes, 79

Hawaiʻi 32, 37, 897 P.2d 959, 964 (1995), for the proposition

that there are “two fundamental bases of demonstrating ‘fair and

just reasons’ for granting withdrawal of a plea: (1) the

defendant did not knowingly, intelligently or voluntarily waive

his or her rights; or (2) changed circumstances or new

information justify withdrawal of the plea.”

Referencing the court’s plea colloquy and the signed change

of plea form, the State argued Pedro entered his pleas

intelligently, voluntarily, and knowingly. The State supported

9
The motion was styled as a “motion to recall nolo contendere plea entered
on 01/07/2019.”

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this claim by pointing to the fact that an interpreter was

present both when Pedro reviewed the form with his lawyer and

during the court’s colloquy. The State also argued that there

were no changed circumstances justifying the withdrawal of

Pedro’s pleas.

In Gomes, we held that a court abuses its discretion by

denying a defendant’s pre-sentence request for plea withdrawal

where:

(1) the defendant has never expressly admitted guilt; (2)
the defendant advances a claim of new information or
changed circumstances with factual support that, if
believed by a reasonable juror, would exculpate the
defendant; (3) there has been no undue delay in moving to
withdraw the plea; and (4) the prosecution has not
otherwise met its burden of establishing that it relied on
the plea to its substantial prejudice.

Id. at 39, 897 P.2d at 966. The State used the four-part test

we introduced in Gomes (the “Gomes test”) to argue that Pedro

was not entitled to withdraw his plea because he had not

satisfied all four of these criteria. Addressing the Gomes

test’s second factor, the State argued: “Defendant has neither

advanced a claim of new information nor changed circumstances.

Furthermore, Defendant has failed to supply the requisite

factual support that, if believed by a reasonable juror would

exculpate the defendant.” Regarding the fourth Gomes test

factor, the State claimed the plea withdrawal would prejudice it

because it had:

learned there has been significant familial and cultural
pressure put on [the complaining witness] and her family

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not to cooperate with this prosecution and blame her for
the Defendant’s actions during the time between Defendant’s
change of plea date and the March 29, 2019, sentencing
date, when these claims began. 10

The motion to withdraw plea hearing happened on May 10,

2019. Defense counsel characterized Pedro’s no contest pleas as

a “sudden change of heart” and “kind of a surprise to everyone.”

He shared that Pedro had continually insisted, “I am not

guilty.” Counsel stated: “He wants a trial now. He wants a

trial. He wants the State to prove each and every element of

the charge. These are all just the most fundamental

constitutional rights. This is what is at stake today for him.”

The State referred the court to its memorandum discussing

Gomes. Regarding the “substantial prejudice” it faced if Pedro

withdrew his plea, the State mentioned without attribution:

I found out this morning, just this morning outside the
courtroom, that the victim’s mother is sick with cancer and
she is returning to the Marshall Islands to be with her.
And there is no indication that, um, when she is – is going
back. That is not pressure. But it is prejudice.

The State also represented that the complaining witness faced

“an extreme” amount of pressure. The deputy prosecuting

attorney explained, “[y]es, there’s always a cultural influence,

but she had been willing to go a certain way. Now, it is

completely . . . different.” The State asserted that Pedro knew

10
The State’s opposition was supported by a declaration from the deputy
prosecuting attorney. She declared that the information in the State’s
memorandum was true and correct to the best of her knowledge and belief.

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of the shift in the complaining witness’s willingness to testify

and was “trying to withdraw this plea for the pure fact that he

knows I do not have the victim at this time.”

The trial court stated it had “meticulously” reviewed the

change of plea form with Pedro. It concluded Pedro entered his

pleas knowingly, voluntarily, and intelligently.

The court then considered whether changed circumstances or

new information justified withdrawal of Pedro’s pleas. It

reasoned:

the State [is] now asserting that someone has pressured the
complaining witness to not cooperate, to not take part.
That’s not the change in circumstance that Gomes – State
versus Gomes talked about. The change in circumstance in
State versus Gomes was somebody else coming forward and
taking responsibility for the crime. . . . But that’s not
the case we have. We don’t have a change in circumstance.
We don’t have a new thing. What we have, if the . . .
Court believes the State’s argument is an uncooperating
family pressure situation on the complaining witness. And
the defendant sees that as his opportunity. . . . He’s
thinking, I can get better than that deal, because they
don’t have the witness now.

The court also found that “[o]nly after the presentence

investigation was received did this motion . . . arise. . . .

The withdrawal came about at sentencing. That is undue delay.”

The court remarked: “He waited till sentencing after he reviewed

the presentence investigation and then said, [‘]I changed my

mind, I changed my mind.[’]” Finally, the court agreed with the

prosecution that “there will be substantial prejudice to the

State if the defendant is allowed to withdraw his plea, if their

witness is no longer available.”

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The trial court denied Pedro’s motion to withdraw his

pleas. It then asked the parties whether they wanted the

sentencing hearing to begin. The prosecution did. The defense

did not. The court continued sentencing to May 14, 2019.

At the start of Pedro’s sentencing hearing, defense counsel

alerted the court to “possibly exculpatory evidence.” Counsel

disclosed he had received information “yesterday” about the

complainant recanting. The defense called Pedro’s mother,

Joanne Pedro, to testify. 11 Joanne Pedro testified she did not

know the complainant, but that on May 11, 2019, her cousin Bonet

told her that she had heard secondhand, from someone named

Marilyn, that the complainant had said Pedro “didn’t have

anything to do with it, with the accusation – allegation.”

Joanne Pedro further testified that the complainant also told

Marilyn “it was not her [the complainant’s] doing” and “it

wasn’t her . . . that made up the story.” 12

The deputy prosecuting attorney disputed Joanne Pedro’s

testimony. She said the complainant had never recanted:

Not once . . . has she ever changed her – changed her
statement to me or any law enforcement or to anybody. If
it is to family, it’s because of – of pressure and not what
she – I’ve – I’ve questioned her numerous times. What she

11
Although English was not her first language, Joanne Pedro testified in
English.
12
The court later clarified the testimony, asking Joanne Pedro: “Before I
sentenced your son you wanted me to know that Bonet told you that Marilyn
told her that [the complaining witness] said, it wasn’t her, and whoever made
up a story. Is that correct?” Pedro’s mother replied, “Yes.”

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said happened happened. There has never been a recantation
in this case.

After the testimony, the defense counsel moved to continue

the hearing. The court rejected the request; it observed that

even if Joanne Pedro’s testimony had been presented at the

hearing on Pedro’s motion for plea withdrawal, it “would not

have made any difference;” the court still would not have

allowed Pedro to withdraw his pleas.

Sentencing occurred. During his pre-sentence allocution,

Pedro did not discuss sentencing matters. Instead, Pedro voiced

dissatisfaction with his first lawyer. He explained why he

wanted to withdraw his pleas. He spoke in English to explain

that subsequent to the entry of his pleas — after he received

his discovery for the first time — he decided to withdraw his

pleas:

Um, the reason why I did ask for, um a different lawyer,
because like I said before, long time ago, I didn’t believe
that, um, my other lawyer was helping me. And I – I had
hard time to figure out whether I want to take this to
trial or because I never get my – my discovery yet. It was
hard for me to decide because I don’t know what was my
charges. And after I went sign the deal, I just – that’s
when I, a day – couple days or weeks after, I got my
discovery.

The court asked Pedro whether he wrote the letters it

received from him in connection with his sentencing. Pedro

stated he had. 13 The letters advanced a consent defense to the

charged crimes. The court told Pedro: “You didn’t write about a
13
The record is unclear on what assistance, if any, Pedro received in
drafting these letters.

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burglary. You didn’t write about a shoplift. You didn’t write

about a stolen car. You wrote about having consensual sex with

a 17 year old. So you knew what the case was about; right?”

Pedro answered, “Yeah, but I never really know what the whole—”

before the court interjected, “What did you think this case was

about?”

Pedro said he read the police reports after he pleaded no

contest. “[A]fter I went sign the deal, that’s when I just went

– they just gave me one discovery.” He said: “for a long time I

never know what was discovery was. I – I – I was – everything

that I just found out was learned from other inmates.” He

insisted: “I – I wanted to go to trial right after I got my

discovery. That’s why. Because I found some false story on

that.”

The court asked Pedro if there was anything else he wanted

to say before sentencing. There was not. The court sentenced

Pedro to concurrent ten-year terms of imprisonment.

The court entered its findings of fact (“FOFs”) and

conclusions of law (“COLs”) in June 2019. In denying Pedro’s

motion to withdraw his plea, the court found that Pedro entered

his pleas voluntarily, knowingly, and intelligently (FOF 2) and

understood all the proceedings (FOFs 4, 5). It further found

that “[t]here was undue delay in the fact that Defendant waited

until sentencing to request that his attorney be removed from

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his case” (FOF 6), that “[t]here is no change of circumstance

that would allow Defendant to withdraw his plea” (FOF 8), and

that “the Defendant’s motion to withdraw his plea, based on his

counsel’s understanding that the Complainant had recanted her

allegations, lacks credibility and believability” (FOF 21).

Citing Jim, 58 Haw. at 576, 574 P.2d at 523, the court

identified the “applicable standard” governing plea withdrawal

before sentencing as “whether the ‘defendant presented fair and

just reason for his request and the State has not relied to its

substantial prejudice’” (COL 3).

The trial court further concluded:

COL 4. There are two fundamental bases of demonstrating
“fair and just reasons” for withdrawal of plea: (1) the
defendant did not knowingly, intelligently, or voluntarily
waive his or her rights; or (2) changed circumstances or
new information justify withdrawal of the plea. State v.
Gomes, 79 Hawaiʻi 32, 37, 897 P.2d 959, 964 (1995); see Jim,
supra.

COL 5. The defense has the burden to prove there is a
“fair and just reason” for granting the withdrawal of his
plea and he has not met that burden in this case.

COL 6. Defendant failed to establish that he did not waive
his rights knowingly, intelligently, or voluntarily.

COL 7. Defendant did waive his rights, when he signed the
no contest plea form and plead no contest, knowingly,
intelligently, or voluntarily.

COL 8. A Change of Circumstance refers to a separate
individual taking the blame for the crime the Defendant
pled guilty or no contest to. There is no change of
circumstance in this case.

COL 9. The Court does not find the Defendant’s mother
credible, as to the information put forth by Defense
Counsel that the Complainant recanted the allegations
against the Defendant.

COL 10. A recantation would entail the Complainant stating

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that this was not a sexual assault but, a consensual sexual
encounter. The information provided was that someone,
other than the Complainant, made the information about the
Defendant and the Complainant up. That is not a
recantation by the Complainant.

COL 11. Based on Defendant’s own handwritten letters to
the Court the sexual encounter occurred between him and the
Complainant.

COL 12. There was no recantation, no change of
circumstances, and nothing in the testimony of Defendant’s
mother that requires a delay in sentencing for further
investigation by Defense Counsel.

COL 13. The State has relied upon the no contest plea to
its substantial prejudice.

On appeal, Pedro argued the trial court abused its

discretion by (1) denying his motion to withdraw his no contest

pleas; and (2) sentencing him to a ten-year term of

incarceration. Pedro’s opening brief challenged FOFs 2, 4, 5

and 6; and COLs 12 and 13. 14 He argued he was entitled to

14
The State argued that Pedro’s failure to challenge FOF 8, which stated
“[t]here is no change of circumstance that would allow Defendant to withdraw
his plea[,]” means that Pedro cannot prove “changed circumstances or new
information justifying withdrawal of a no contest plea[.]” Pedro also failed
to challenge COLs 6 and 7. The former provides: “Defendant failed to
establish that he did not waive his rights knowingly, intelligently, or
voluntarily.” The latter provides: “Defendant did waive his rights, when he
signed the no contest plea form and plead [sic] no contest, knowingly,
intelligently, or voluntarily.” Since Pedro did not challenge these COLs on
appeal, the State argued, they were “a binding determination that Appellant
failed to meet his burden to show he did not knowingly, intelligently, or
voluntarily waive his rights when he pleaded no contest.” Additionally, the
State asserted that because Pedro failed to challenge COL 9 regarding Joanne
Pedro’s testimony, he had no “credible evidence” to support his claim that
the complaining witness recanted her testimony. COL 9 provides: “The Court
does not find the Defendant’s mother credible, as to the information put
forth by Defense Counsel that the Complainant recanted the allegations
against the Defendant.”

Hawaiʻi Rules of Appellate Procedure (“HRAP”) Rule 28(b)(4) provides that an
appellant’s opening brief must contain:

A concise statement of the points of error set forth in
separately numbered paragraphs. Each point shall state: (i)

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withdraw his pleas because “he did not understand his charges,

he did not receive his copy of the discovery until post change

of plea and there was an alleged complaining witness recantation

that was not investigated.” The State contested this argument.

In its Summary Disposition Order (SDO), the ICA evaluated

Pedro’s claims under each of the two “Gomes bases.” See State

v. Pedro, NO. CAAP-XX-XXXXXXX (App. Aug. 24, 2020) (SDO); see

also Gomes 79 Hawaiʻi at 37, 897 P.2d at 964 (identifying two

“fundamental bases of demonstrating a ‘fair and just reason’ for

the pre-sentence withdrawal of plea: (1) the defendant did not

the alleged error committed by the court or agency; (ii)
where in the record the alleged error occurred; and (iii)
where in the record the alleged error was objected to or the
manner in which the alleged error was brought to the
attention of the court or agency.

Non-compliance with HRAP Rule 28(b)(4) offers sufficient grounds for the
dismissal of the appeal. See Schefke v. Reliable Collection Agency, Ltd., 96
Hawaiʻi 408, 420, 32 P.3d 52, 64 (2001). This court, however, has
“consistently adhered to the policy of affording litigants the opportunity
‘to have their cases heard on the merits, where possible.’” Morgan v.
Planning Dep’t, Cty. of Kauai, 104 Hawaiʻi 173, 180–81, 86 P.3d 982, 989–90
(2004) (quoting O’Connor v. Diocese of Honolulu, 77 Hawaiʻi 383, 386, 885 P.2d
361, 364 (1994)). In Marvin v. Pflueger, 127 Hawaiʻi 490, 280 P.3d 94 (2012),
we recognized that evaluating an appellant’s arguments notwithstanding
noncompliance with HRAP Rule 28(b)(4) was particularly appropriate where “the
remaining sections of the brief provide the necessary information to identify
the party's argument.” Id. at 496, 280 P.3d at 94. See also Lesser v.
Boughey, 88 Hawaiʻi 260, 261 n.1, 965 P.2d 802, 803 n.1 (1998) (noting policy
of permitting litigants to have their cases heard on the merits where
possible and addressing the appellant’s arguments even though appellant did
not comply with HRAP Rule 28(b)(4) where it was “possible to discern the
point of error upon which [the appellant] relies . . . .”).

Notwithstanding Pedro’s non-compliance with HRAP Rule 28(b)(4), we will
address all of the issues raised by his appeal. This is appropriate given
that Pedro’s opening brief in the ICA implicitly challenges FOF 8 and COLs 6
through 9; the scope and nature of his challenges to this FOF and these COLs
are obvious given his arguments about his entitlement to plea withdrawal.

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knowingly, intelligently or voluntarily waive his or her rights;

or (2) changed circumstances or new information justify

withdrawal of the plea.”). After reviewing the record and

highlighting the signed change of plea form and the court’s

colloquy with Pedro before accepting his pleas, the court ruled:

[W]e conclude that Pedro did not meet his burden of
establishing a fair and just reason for withdrawal of his
no contest plea under the first Gomes basis. We thus
conclude that the Circuit Court did not abuse its
discretion in ruling that Pedro failed to establish that he
did not waive his rights knowingly, intelligently, or
voluntarily when he entered his plea.

Pedro, SDO at 7.

Next, the ICA evaluated Pedro’s contention that the

discovery he received post-plea and the new information

regarding the complainant’s recantation were “fair and just”

reasons for the withdrawal of his pleas. Like the trial court,

the ICA rejected these arguments. It stated that in order for

Pedro to satisfy the second prong of the Gomes test — “changed

circumstances or new information” — Pedro would need to provide

facts that if believed by a reasonable juror would exculpate

him:

These contentions appear to raise a claim under the second
Gomes basis – that there were changed circumstances or new
information that justified withdrawal of Pedro’s plea. To
withdraw a plea on this basis, Pedro must, as an initial
matter, ‘advance[] a claim of new information or changed
circumstances with factual support that, if believed by a
reasonable juror, would exculpate [him].[’] Gomes, 79
Hawaiʻi at 39, 897 P.2d at 966.

Id. at 8.

The ICA explained that Pedro’s arguments concerning his

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belated receipt of his discovery fell short since “absent any

indication in the record of the nature of the later-acquired

‘discovery’ or the ‘false story’ that it allegedly contained,

Pedro did not advance a claim of new information with factual

support that, if believed by a reasonable juror, would exculpate

him.” Id. (emphasis added).

Pedro’s claim that the “recantation” constituted “new

information or changed circumstances” that entitled Pedro to

withdraw his pleas was likewise rejected. After concluding that

Pedro did not present new information or changed circumstances

with factual support that, if believed by a reasonable juror,

would exculpate the defendant, the ICA declined to address

Pedro’s alleged undue delay in moving to withdraw his pleas or

the prosecution’s purported reliance upon the pleas. The ICA

concluded: “Pedro failed to present a plausible claim of new

information or changed circumstances under Gomes, and the

Circuit Court did not abuse its discretion in denying Pedro's

motion to withdraw his no contest plea on this basis. See

[Gomes,] 79 Hawaiʻi at 36, 897 P.2d at 963.” Id. at 10 (footnote

omitted).

Pedro’s application for certiorari was accepted. He

reasserts his claim that the trial court abused its discretion

by denying his motion to withdraw his no contest pleas. Pedro

also argues that the ICA erred when it held that the court did

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not abuse its discretion in sentencing him.

II. DISCUSSION

HRPP Rule 32(d) governs plea withdrawals. It specifies

that sentenced defendants who move for plea withdrawal within

ten days after the imposition of sentence are entitled to

withdraw guilty or no contest pleas to “correct manifest

injustice.” It also provides that at any later time, a

defendant seeking to withdraw a plea may do so only by petition

pursuant to HRPP Rule 40. But HRPP Rule 32(d) omits a standard

controlling plea withdrawal before sentencing. We introduced

such a standard in Jim, explaining that courts evaluating pre-

sentence requests for plea withdrawals should take a “liberal

approach” and grant them “if the defendant has presented a fair

and just reason for [the] request and the State has not relied

upon the guilty plea to its substantial prejudice.” 58 Haw. at

576, 574 P.2d 521 at 522-23 (emphasis added). 15 See also State

v. Sanney, 141 Hawaiʻi 14, 22, 404 P.3d 280, 288 (2017)

(emphasizing that before sentencing and absent substantial

prejudice to the prosecution, defendants may withdraw their plea

and reclaim their constitutional rights for a “fair and just

reason”).

15
See also Kercheval v. United States, 274 U.S. 220, 224 (1927) (reasoning
in dicta, “[t]he court in exercise of its discretion will permit one accused
to substitute a plea of not guilty and have a trial if for any reason the
granting of the privilege seems fair and just.”)(emphasis added).

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“The defendant has the burden of establishing plausible and

legitimate grounds for the withdrawal.” State v. Costa, 64 Haw.

564, 565, 644 P.2d 1329, 1331 (1982).

In Gomes, 79 Hawaiʻi 32, 897 P.2d 959, we identified two

“fundamental bases” of demonstrating a “fair and just reason”

for the pre-sentence withdrawal of plea: (1) the defendant did

not knowingly, intelligently or voluntarily waive his or her

rights; or (2) changed circumstances or new information justify

withdrawal of the plea.” Id. at 37, 897 P.2d at 964.

The “fair and just reason” standard is more flexible and

permissive than the “manifest injustice” standard governing

post-sentencing plea withdrawals. This distinction is based on

“sound policy” since “when a motion to withdraw a plea has been

made prior to sentencing, as opposed to after sentencing, there

is no opportunity for the defendant to test the severity of

sentence before finally committing himself to a guilty plea.”

State v. Guity, 144 Hawaiʻi 557, 562, 445 P.3d 138, 143 (2019)

(cleaned up). Even more importantly, “[b]efore sentencing, the

inconvenience to the court and prosecution resulting from a

change of plea is ordinarily slight as compared with the public

interest in protecting the right of the accused to trial by

jury.” Kadwell v. United States, 315 F.2d 667, 670 (9th Cir.

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1963). 16

A criminal trial fully activates a defendant’s rights to

confront accusers, testify, or not testify, present a complete

defense, and have the prosecution prove each element of the

charged or included offenses beyond a reasonable doubt. With

serious crimes, the right to a jury trial and unanimity attach.

By pleading guilty or no contest, defendants renounce these core

constitutional rights, forgo a public trial, and subject

themselves to the government’s punitive power. Given the

significance of the constitutional rights waived by a guilty or

no contest plea, the flexible and comparatively liberal approach

we adopted in Jim favors allowing pre-sentence defendants to

reclaim their constitutional rights and go to trial. See State

v. Pokini, 55 Haw. 640, 656, 526 P.2d 94, 108 (1974) (noting

that the right to trial by jury is “considered fundamental to

our system of criminal justice.”).

The trial court correctly identified Jim’s “fair and just

reason” standard as the controlling law. But it misapplied that

16
The ease with which the public interest in the finality of criminal pleas
may yield to accommodate other values is illustrated by courts’ near
boundless power to unilaterally revoke plea agreements prior to sentencing.
Courts may, at their discretion, unwind plea agreements either by rejecting
the agreements’ sentencing terms or by deciding to depart from a prior
sentencing inclination. See Sanney, 141 Hawaiʻi at 16, 404 P.3d at 282
(stating “if a defendant pleads guilty or no contest in response to a court’s
sentencing inclination, but the court later decides not to follow the
inclination, then the court must so advise the defendant and provide the
defendant with the opportunity to affirm or withdraw the plea of guilty or no
contest.”).

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law in evaluating Pedro’s motion for plea withdrawal. The trial

court, and the ICA after it, considered whether Pedro’s pleas

were unknowing or involuntary and whether Pedro had presented

new evidence or changed circumstances like those presented by

the defendant in Gomes. After determining Pedro’s pleas were

knowing and voluntary, rejecting Joanne Pedro’s testimony about

the complainant’s recantation as non-credible, and finding undue

delay and prejudice to the prosecution, the trial court

concluded its “fair and just reason” analysis and denied Pedro’s

request. It did not examine the totality of the circumstances

to determine whether there was any fair and just reason for

Pedro’s plea withdrawal.

The trial court correctly concluded that Pedro’s pleas were

knowing and voluntary. And it did not err in finding that the

“new evidence” Pedro presented did not justify allowing his

pleas’ withdrawal. But these determinations should be the

beginning, not the end, of the “fair and just reason” inquiry.

Cf. Guity, 144 Hawaiʻi at 561, 445 P.3d at 142 (“[i]t is true

that the failure of a defendant to enter a guilty plea

knowingly, intelligently, and voluntarily will amount to a ‘fair

and just reason’ to withdraw the plea. . . . It does not follow,

however, that the only permissible ‘fair and just reason’ to

withdraw a plea is the defendant's failure to enter the plea

knowingly, intelligently, and voluntarily.”). Here, the trial

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court misread Gomes and did not conduct the full “fair and just

reason” inquiry required by Jim. As such, the trial court’s

denial of Pedro’s motion was an abuse of discretion because it

“disregarded rules or principles of law or practice to the

substantial detriment of a party litigant.” State v. Enos, 147

Hawaiʻi 150, 159, 465 P.3d 597, 606 (2020) (quoting State v.

Rapozo, 123 Hawaiʻi 329, 336, 235 P.3d 325, 332 (2010)).

After reviewing the trial court and ICA’s treatment of

Pedro’s plea withdrawal request, we clarify the scope of Gomes’

holding and introduce a five-factor test to prospectively guide

courts’ consideration of whether there is a “fair and just

reason” justifying plea withdrawal before sentencing.

A. The trial court correctly concluded Pedro’s pleas were
constitutionally valid

The circuit court and the ICA correctly concluded that

Pedro entered his no contest pleas knowingly, voluntarily, and

intelligently.

A defendant’s signature on Form K, the standard change of

plea form, does not by itself render a plea constitutionally

valid. See, e.g., State v. Krstoth, 138 Hawaiʻi 268, 378 P.3d

984 (2016). But a signed Form K document does tend to show a

plea was proper and its implications understood. Here, Pedro

signed the change of plea form after reviewing it and the

prosecution’s plea agreement letter with his attorney and an

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interpreter. Defense counsel certified in Form K’s “Certificate

of Counsel” that he had explained and reviewed the entire change

of plea form with Pedro.

On the record, the court confirmed Pedro’s age, educational

background, English language skills, and clear, sound mind. An

interpreter was present. Pedro addressed the court both in

English and through the interpreter. The court’s plea colloquy

systematically marched through each paragraph of Form K.

Depending on the paragraph, the court asked Pedro whether the

statement was true or whether he understood the constitutional

rights he was waiving. Pedro acknowledged that the statements

in the form were true. He also represented that he understood

the constitutional rights he was waiving. Pedro responded,

“Yes, your Honor” or some slight variation to each of the

court’s questions. The court also reviewed the plea agreement’s

terms with Pedro. Pedro said he understood the agreement and

the consequences of his pleas.

After entering his pleas, Pedro signed the bottom of the

plea form, acknowledging “the Judge questioned me personally in

open court to make sure that I knew what I was doing in pleading

guilty or no contest and understood this form before I signed

it.” The court accepted Pedro’s pleas.

The record shows that the court engaged in a sufficient

plea colloquy. Pedro’s mind was clear. He directly responded

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to the court’s questions. He understood his constitutional

rights and waived them. The circuit court correctly concluded

that Pedro entered his no contest pleas knowingly, voluntarily,

and intelligently.

B. Gomes and Jim allow for pre-sentence plea withdrawal for
any fair and just reason

Underlying both the trial court’s ruling and the ICA’s SDO

is a misapplication of our holding in State v. Gomes. In Gomes,

we considered whether the trial court had abused its discretion

by denying a defendant’s motion to withdraw his plea after the

emergence of exculpatory evidence. We held that a court abuses

its discretion by denying a pre-sentence request for plea

withdrawal where:

(1) the defendant has never expressly admitted guilt; (2)
the defendant advances a claim of new information or
changed circumstances with factual support that, if
believed by a reasonable juror, would exculpate the
defendant; (3) there has been no undue delay in moving to
withdraw the plea; and (4) the prosecution has not
otherwise met its burden of establishing that it relied on
the plea to its substantial prejudice.

79 Hawai‘i at 39, 897 P.2d at 966.

The application of this four-part Gomes test is narrow. It

establishes one set of circumstances in which a trial court must

grant a pre-sentence motion for plea withdrawal based on new

circumstances that if believed by a jury would exculpate the

defendant. It does not provide any guidance for courts

considering “new information or changed circumstances” that,

though not exculpatory, may be a “fair and just reason” for plea
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withdrawal. The four factors outlined in Gomes impose a floor,

not a curb, on trial courts’ discretion to grant a pre-sentence

motion for plea withdrawal.

Some treatments of the Gomes test, however, have

incorrectly framed it as circumscribing Jim’s fair and just

reason standard such that each of the test’s four factors is a

hurdle to be cleared by defendants seeking plea withdrawal

before sentencing. 17 This approach is wrong. As Jim provided

and our recent case law affirms:

When a motion to withdraw a plea is made prior to
sentencing, a more liberal approach is to be taken, and the
motion should be granted if [1] the defendant has presented
a fair and just reason for [the] request and [2] the State
has not relied upon the guilty plea to its substantial
prejudice.

Guity, 144 Hawaiʻi at 561, 445 P.3d at 142 (cleaned up). See

also Sanney, 141 Hawaiʻi at 23-24, 404 P.3d at 289-90 (noting

that Hawaiʻi has adopted standards consistent with the American

Bar Association Criminal Justice Standards Standard 14-2.1,

which provides that defendants should be allowed to withdraw

pleas before sentencing for “any fair and just reason”).

17
For example, in State v. Fogel, 95 Hawaiʻi 398, 23 P.3d 733 (2001), we
styled Gomes as setting forth “standards relating to pre-sentence plea
withdrawal motions,” without specifying that these factors are applied not in
determining whether an exercise of discretion is appropriate, but rather in
determining whether the court has abused its discretion by denying a pre-
sentence motion for plea withdrawal. Id. at 402, 23 P.3d at 737. See also
State v. Oshiro, No. 29375, (App. Nov. 30, 2010) (SDO) (affirming the denial
of a motion to withdraw a plea pre-sentence and explaining that “one of the
conditions that a defendant must satisfy to establish his or her entitlement
to withdraw a no-contest plea based on new information or changed
circumstances is that the new information or changed circumstances, if
believed by a reasonable juror, would exculpate the defendant.”)(cleaned up).

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Citing Gomes and borrowing language from the second prong

of the Gomes test, the ICA held that Pedro had not established

changed circumstances or new information entitling him to

withdraw his pleas because he “did not advance a claim of new

information with factual support that, if believed by a

reasonable juror, would exculpate him.” There are two problems

with this reasoning. First, it distorts the significance of the

second prong of the Gomes test. As discussed above, the Gomes

test considers whether a trial court had abused its discretion

by denying a defendant’s pre-sentence motion for plea

withdrawal. It is not a checklist of conditions defendants must

meet before they are entitled to withdraw their plea. Second,

under Jim, Pedro – like all defendants — is entitled to withdraw

his plea before sentencing and reactivate the constitutional

rights he waived upon a showing that the plea’s withdrawal is

justified by a fair and just reason. The ICA disregarded this

principle when it affirmed the trial court on the grounds that

Pedro was not entitled to withdraw his pleas because he did not

advance a claim of new information or changed circumstances

“with factual support that, if believed by a reasonable juror,

would exculpate him.”

The trial court’s conclusion that “[a] Change of

Circumstances refers to a separate individual taking the blame

for the crime the Defendant pled guilty or no contest to. There

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is no change of circumstances in this case” (COL 8) is similarly

problematic. This conclusion transforms the facts at issue in

Gomes – which involved a “separate individual taking the blame

for the crime the Defendant [Gomes] pled no contest to” – into a

standard to be met by defendants seeking plea withdrawal before

sentencing. Our holding in Gomes was intended to ensure that no

defendant advancing a “claim of new information or changed

circumstances with factual support that, if believed by a

reasonable juror, would exculpate them” is denied the right to a

trial. It did not recalibrate Jim’s fair and just reason

standard in any way. The operative question for courts

considering a defendant’s HRPP Rule 32(d) request prior to

sentencing is whether there is any fair and just reason for

withdrawal, not whether the facts of a given case are similar

to, or dissimilar from, those of Gomes.

The trial court did not err in concluding that the

“possibly exculpatory evidence” Pedro produced — his mother’s

triple hearsay testimony about an alleged recantation by the

complainant — did not constitute a “fair and just reason” for

Pedro’s plea withdrawal. But it did err by treating this

conclusion as dispositive of whether there were any

circumstances constituting a ‘fair and just’ reason for the pre-

sentence withdrawal of Pedro’s pleas. The absence of a

“separate individual taking the blame for [the crimes Pedro

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pleaded to]” does not mean that there was no other “fair and

just reason” justifying the withdrawal of Pedro’s pleas. After

discounting Joanne Pedro’s testimony, the trial court should

have examined the totality of the circumstances to determine

whether there was any fair and just reason justifying Pedro’s

plea withdrawal.

C. A multi-factor test for evaluating “fair and just reasons”

Motions for plea withdrawal made before sentencing or

within ten days after the imposition of sentence must be granted

– regardless of prejudice to the prosecution – if plea

withdrawal is necessary to correct manifest injustice. See HRPP

Rule 32(d). But our case law addressing when changed

circumstances constitute a fair and just reason for a plea

withdrawal outside circumstances showing manifest injustice is

thin. Almost all of our cases involving plea withdrawal have

involved either constitutionally-deficient pleas 18 or assertions

of changed circumstances that are so manifestly unjust they

would justify plea withdrawal before or after sentencing. See,

18
Guilty or no contest pleas that are made involuntarily or without the
requisite knowledge are constitutionally invalid and manifestly unjust. See,
e.g., State v. Nguyen, 81 Hawaiʻi 279, 292, 916 P.2d 689, 702 (1996)
(“Manifest injustice occurs when a defendant makes a plea involuntarily or
without knowledge of the direct consequences of the plea.”); Wong v. Among,
52 Haw. 420, 425, 477 P.2d 630, 634 (1970) (holding “[a] plea of guilty in
itself is a conviction and a simultaneous waiver of several important
constitutional guarantees . . .[ s]uch a waiver is not constitutionally
acceptable unless made voluntarily and with full understanding of the
consequences.”).

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e.g., State v. Merino, 81 Hawaiʻi 198, 226, 915 P.2d 672, 700

(1996) (rejecting the defendant’s claim that there was a “fair

and just” reason for the withdrawal of his plea in case where

plea was knowing and voluntary); State v. Kealoha, 142 Hawaiʻi

46, 414 P.3d 98 (2018) (recognizing that manifest injustice

occurs where a defendant makes a plea without knowledge of its

direct consequences); Krstoth, 138 Hawaiʻi at 276, 378 P.3d at

992 (2016) (concluding that defendant was entitled to withdraw

guilty plea before sentencing where record did not establish

plea was knowing, intelligent, and voluntary); Guity, 144 Hawaiʻi

at 563, 445 P.3d at 144 (2019) (holding plea agreement

unenforceable because it was legally impossible for defendant to

have committed one of the crimes); State v. Adams, 76 Hawaiʻi

408, 414, 879 P.2d 513, 519 (1994) (explaining “where a

defendant is denied due process because the prosecution violates

a plea agreement, ‘there is ‘manifest injustice’ as a matter of

law,’ and the defendant ‘is entitled to withdraw his guilty

plea.’”) (citation omitted); State v. Garcia, 135 Hawaiʻi 361,

351 P.3d 588 (2015) (holding that prosecutor’s pre-sentence

breach of plea agreement constituted a fair and just reason for

plea withdrawal).

These cases offer little guidance to courts considering

whether, absent manifest injustice, there is a “fair and just

reason” for plea withdrawal before sentencing. In order to
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prospectively facilitate this analysis, we introduce a five-

factor test to guide trial courts in evaluating whether a fair

and just reason supports a defendant’s pre-sentence request for

plea withdrawal. 19

Courts evaluating an HRPP Rule 32(d) motion to withdraw a

knowing and voluntary plea before sentencing should consider:

(1) whether the defendant has asserted and maintained innocence;

(2) the timing of the request for the plea withdrawal and the

reasons for any delay; (3) the circumstances underlying the

plea; (4) the defendant’s nature and background; and (5) the

potential prejudice to the prosecution caused by reliance on the

plea. 20

19
Appellate courts interpreting and applying their analogous federal “fair
and just reason” standard often rely on multi-factor tests to guide their
analyses. See, e.g., United States v. Jordan, 759 F. Supp. 902, 904 (D.D.C.
1991) (identifying five factors that courts usually consider in evaluating
whether “fair and just” reasons justify withdrawal of plea), aff’d, 43 F.3d
712 (D.C. Cir. 1994); United States v. Bazzi, 94 F.3d 1025, 1027 (6th Cir.
1996) (listing factors courts should consider in determining whether there is
a “fair and just reason” for pre-sentence plea withdrawal); United States v.
Moore, 931 F.2d 245, 248 (4th Cir. 1991) (identifying six factors that courts
typically consider in determining whether a defendant has met his or her
burden under Federal Rule of Procedure Rule 32(d)); United States v. Carr,
740 F.2d 339, 343 (5th Cir. 1984) (listing various factors and elements
courts should consider in applying the “fair and just” reason standard).
20
These factors are non-exclusive and courts applying them may still consider
other factors that are relevant to the fair and just reason inquiry. See
Jim, 58 Haw. at 579, 574 P.2d at 524 (instructing “[t]he trial court was
entitled to consider the defendant’s asserted reasons and the factual basis
therefor against a background consisting of the earlier proceedings.”);
Gomes, 79 Hawaiʻi at 38, 897 P.2d at 965 (analyzing the reason Gomes provided
for seeking withdrawal “against the background provided by earlier
proceedings.”). These factors are also to be considered collectively; the
defendant need not show that each of the five factors individually weighs in
favor of allowing withdrawal in order for there to be a “fair and just
reason” for withdrawal. Further, in cases where the defendant has a

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The evidentiary record concerning Pedro’s pleas and his

motion for their withdrawal is fully developed. We are thus

unpersuaded by the dissent’s contention that the trial court is

best positioned to apply our newly-introduced five-factor test

to the facts of Pedro’s case. Cf. Nishimura v. Gentry Homes,

Ltd., 134 Hawaiʻi 143, 338 P.3d 524 (2014) (adopting a

“fundamental fairness” standard for resolving challenges to

arbitrator selection provisions and applying it to the facts of

the case before it); State v. Ontai, 84 Hawaiʻi 56, 929 P.2d 69

(1996) (adopting new definition of the “enterprise” element

of HRS § 842–1 and analyzing the facts of the case before it in

light of the new definition).

D. Pedro presented a fair and just reason for the withdrawal
of his pleas

Applying these five factors, we conclude that Pedro

presented a “fair and just reason” for the withdrawal of his

pleas.

1. Pedro asserts his innocence and has never admitted
guilt

Our “liberal approach” to motions for plea withdrawal made

before sentencing favors allowing plea withdrawal and the

restoration of constitutional rights where a defendant has

particularly plausible and legitimate reason for withdrawal, courts may find
a “fair and just reason” for withdrawal notwithstanding substantial prejudice
to the prosecution.

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asserted innocence and has never admitted guilt. See State v.

Smith, 61 Haw. 522, 523, 606 P.2d 86, 88 (1980) (reversing

denial of HRPP Rule 32(d) motion where defendant had never

“expressly admit[ted] that he committed the offenses charged in

the indictment.”); Gomes, 79 Hawaiʻi at 38, 897 P.2d at 965

(reversing denial of HRPP Rule 32(d) motion where defendant

“never explicitly admitted that he committed the crimes for

which he was charged and convicted.”). Though an assertion of

innocence, standing alone, is not a “fair and just reason” for

plea withdrawal, 21 an assertion of innocence by a defendant who

has never admitted guilt weighs strongly in favor of allowing

plea withdrawal before sentencing.

Pedro pleaded no contest. He has never admitted guilt.

Neither the plea agreement nor the change of plea form detailed

a factual basis supporting his pleas. No “confession” appears

on the record. Pedro did not, and was not required to, admit

facts supporting the charges. See State v. Deguair, 108 Hawaiʻi

179, 191, 118 P.3d 662, 674 (2005) (stating “there is no

requirement that the court elicit a factual basis for a no

contest plea.”) (discussing State v. Merino, 81 Hawaiʻi at 219,

21
But see Commonwealth v. Gordy, 73 A.3d 620, 630 (Pa. Super. Ct. 2013)
(holding assertion of innocence in a pre-sentence motion for plea withdrawal
was fair and just reason justifying plea withdrawal); Commonwealth v. Forbes,
299 A.2d 268, 272 (Pa. 1973) (holding that assertion of innocence by
defendant who pleaded guilty was “fair and just” reason for plea withdrawal
before sentencing).

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915 P.2d at 693 (noting court is not required to make “such

inquiry as shall satisfy it that there is a factual basis for

the plea.”)).

Pedro has asserted and maintained his innocence and has

never admitted guilt. Though not dispositive, this factor

weighs strongly in favor of allowing Pedro to withdraw his

pleas. 22

2. There was no undue delay

The presence or absence of undue delay impacts a

defendant’s entitlement to pre-sentence plea withdrawal. See

Gomes, 79 Hawaiʻi at 39, 897 P.2d at 966 (including absence of

undue delay as a factor in multi-part test for evaluating

whether court must grant a pre-sentence motion for plea

withdrawal); Cf. United States v. Barker, 514 F.2d 208, 222

(D.C. Cir. 1975) (noting “[a] swift change of heart is itself

strong indication that the plea was entered in haste and

confusion; furthermore, withdrawal shortly after the event will

rarely prejudice the Government’s legitimate interests.”). The

trial court faulted Pedro for the timing of his plea withdrawal

request. It suggested Pedro’s motion was a ploy, motivated by

22
Courts must look favorably on requests for plea withdrawal from defendants
who have maintained their innocence and never admitted guilt, but the
converse is not true. The relevance of a defendant’s admission of guilt to
the fair and just reason analysis is context-dependent. Even defendants who
have pleaded guilty and admitted to crimes may still advance a “fair and
just” reason for the withdrawal of their pleas.

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the contents of the presentence report. It stated: “Only after

the presentence investigation was received did this

motion . . . arise. . . . The withdrawal came about at

sentencing. That is undue delay.” The court continued: “[H]e

waited till sentencing after he reviewed the presentence

investigation and then said, [‘]I changed my mind, I changed my

mind.[’]” The trial court concluded that there was an undue

delay between Pedro’s pleas and his request for their

withdrawal.

Based on our review of the record, we conclude that Pedro

did not unduly delay in requesting plea withdrawal. This is

true for three reasons. First, the trial court advised Pedro

during its plea colloquy that his plea was irreversible.

Second, the court’s speculation about Pedro’s motivations for

seeking to withdraw his pleas is unfounded. And third, Pedro’s

ability to explain the timing of his plea withdrawal request and

the reasons for any delay was undermined by the court’s failure

to conduct a “penetrating and comprehensive inquiry” into the

attorney-client relationship between Pedro and his lawyer after

Pedro’s counsel moved to withdraw. See State v. Harter, 134

Hawaiʻi 308, 323, 340 P.3d 440, 455 (2014).

Paragraph 11 of Form K, the change of plea form Pedro

signed, reads, in relevant part: “I know I will not be permitted

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to withdraw my plea.” 23 Immediately before taking Pedro’s pleas,

the court discussed paragraph 11 with Pedro. It told him the

form said:

I’m signing this no contest plea form after I have gone
over all of it with my lawyer, and while I will not be
permitted to withdraw my plea, I am signing this form in
the presence of my lawyer. I have no complaints about my
lawyer. I am satisfied with what he has done for me.

The court asked Pedro whether these statements were true. Pedro

said they were.

Given the language in the plea form, the trial court cannot

be faulted for advising Pedro that he would not be “permitted to

withdraw [his] plea.” But Paragraph 11 of the plea form was

misleading because Pedro could seek to withdraw his pleas under

HRPP Rule 32(d). 24 When Pedro tried to do just that, he was

faulted for not acting faster. This is unfair given that Pedro

23
Since the entry of Pedro’s plea, Form K has been amended. The revised
version of the Hawaiʻi criminal plea form (Form K) acknowledges that
defendants may, in some cases, withdraw their pleas. It reads, in relevant
part: “I know I will not be permitted to withdraw my plea except in certain
limited circumstances.” SCRU-XX-XXXXXXX, Order Amending Form K and Adopting
Form L of the Hawaiʻi Rules of Penal Procedure at 5 (emphasis added).
24
HRPP Rule 32(d) 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 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.

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was told during the plea colloquy that it would be impossible

for him to withdraw his pleas.

Second, the trial court’s speculation about the presentence

report’s role in motivating Pedro’s request to withdraw his

pleas is unfounded. The record shows neither when Pedro

received the presentence report, nor when he reviewed it with

counsel and an interpreter. The record also offers no

indication of how Pedro felt about the report’s contents. It

does indicate, however, that Pedro’s desire to withdraw his

pleas predated the March 21, 2019 filing of the presentence

report: Pedro’s attorney moved to withdraw as counsel on March

14, 2019, one week before the presentence report was filed. At

the April 4, 2019 hearing on that motion, Pedro’s counsel

represented that the reason he filed the motion to withdraw as

counsel on March 14, 2019, was that Pedro wanted to withdraw his

pleas. Pedro’s counsel stated:

I just want to say on the record that, um, this morning
with our interpreter today I had another conversation with
Mr. Pedro about his options and what he wishes to do. Is
my understanding that he seeks to withdraw his no contest
plea. And given what was discussed, I would ask that the
pending motion to withdraw as counsel be granted and that a
substitute counsel can be appointed.

These statements undermine the trial court’s theory about

Pedro’s inappropriate motives for seeking plea withdrawal. They

suggest Pedro’s desire to withdraw his pleas emerged at some

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point 25 before the March 14, 2019 filing of the motion to

withdraw as counsel.

Third and finally, the trial court’s handling of the motion

to withdraw as counsel likely compromised Pedro’s ability to

explain any “delay” in his request for plea withdrawal.

Withdrawal and substitution of counsel require “approval of

the court.” HRPP Rule 57; see also Hawai‘i Rules of Professional

Conduct (“HRPC”) Rule 1.16(c) (“A lawyer must comply with

applicable law requiring notice to or permission of a tribunal

when terminating a representation.”). Defendants do not have an

automatic right to discharge counsel. See State v. Torres, 54

Haw. 502, 504, 510 P.2d 494, 496 (1973) (advising that “there is

no absolute right, constitutional or otherwise, for an indigent

to have the court order a change in court-appointed counsel.”).

Pedro’s counsel’s motion to withdraw was spare. It

declared that Pedro “wishes to have a new attorney represent

him” and that “[c]ounsel must withdraw from representation when

discharged by the client. Hawaiʻi Rules of Professional Conduct

Rule 1.16(a)(3).” 26 The motion was not supported by a

25
Counsel did not say when Pedro first expressed his desire to withdraw his
pleas, but it can be reasonably inferred that Pedro did so at some point
before his counsel moved to withdraw on March 14, 2019.
26
HRPC Rule 1.16(a)(3) provides, in relevant part: “a lawyer shall not
represent a client or, where representation has commenced, shall withdraw
from the representation of a client if: . . . (3) the lawyer is discharged.”

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declaration or any evidence or argumentation. 27,28 At the April

4, 2019 hearing on the motion to withdraw as counsel, Pedro’s

counsel stated that Pedro wanted to withdraw his pleas. He

offered no other explanation for the motion to withdraw as

counsel. The court did not inquire into the nature of the

relationship between Pedro and his lawyer.

Instead, and despite counsel’s representation that Pedro

wanted to withdraw his pleas, the court asked Pedro: “Did you

want your new attorney to come here and do your sentencing for

you?” Pedro expressed a desire to have a new attorney represent

him in a trial. Pedro explained through the interpreter: “[M]y

question is to have a new person come help me because I only

worked a little bit of time with this lawyer.” He told the

court he needed a new lawyer to “[e]xplain to me and help me
27
The motion to withdraw as counsel in this case stands in marked contrast to
that in Krstoth. In Krstoth, a motion to withdraw as counsel was filed in
anticipation of a HRPP Rule 32(d) motion. Defense counsel and an interpreter
visited the in-custody defendant to understand his rationale for requesting
substitute counsel. Krstoth’s attorney explicitly informed the court of the
basis for the motion to withdraw as counsel. The attorney’s declaration of
counsel stated in relevant part: “[Krstoth] made several things clear: (a)
that he felt pressured by me to accept the plea bargain offered by the State
and plead ‘guilty’ to the charged offense; (b) that he did not understand all
of his rights he had, including the right to a trial, because I did not make
things clear to him; and (c) that he does in fact want to withdraw his
previously entered ‘guilty’ plea and have a trial to contest the charge
against him.” 138 Hawaiʻi at 271, 378 P.3d at 987. Unlike Krstoth’s counsel,
Pedro’s deputy public defender declined to disclose the reasons for Pedro’s
dissatisfaction in the motion to withdraw as counsel.
28
Sensitive information supporting a motion for withdrawal of counsel may be
submitted to the court for in camera review. See Hawaiʻi Electronic Filing
and Service Rules Rule 8.2 (“Documents submitted for in camera review shall
be maintained in JIMS under electronic security and made accessible to only
the court, the appellate courts, and court staff until a court of competent
jurisdiction orders otherwise.”).

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with this case” and “[e]xplain to me about everything because I

did not understand.” When asked by the court whether he

“want[ed] to start this whole case all over again[,]” Pedro

replied, “Yes.” Other than saying Pedro wanted to withdraw his

pleas, defense counsel remained silent throughout the hearing.

The trial court granted the motion to withdraw as counsel.

Its one sentence order granting the motion stated: “Defendant

has or had a conflict with The Office of the Public Defender.” 29

In Harter, we held that when an indigent defendant requests

that appointed counsel be replaced, the “trial court has a duty

to conduct a ‘penetrating and comprehensive examination’ of the

defendant on the record, in order to ascertain the bases for the

defendant’s request.” 134 Hawaiʻi 308, 323, 340 P.3d 440, 455

(2014). This “penetrating and comprehensive” inquiry into the

status and quality of the attorney-client relationship and the

source and depth of the defendant’s dissatisfaction is essential

to safeguarding the defendant’s constitutional rights. 30 The

29
Counsel with undivided loyalties may be unable to meet the constitutional
standard of effective assistance of counsel. See Harter, 134 Hawaiʻi at 324,
340 P.3d at 456 (stating “[g]enerally, ‘a conflict exists when an attorney is
placed in a situation conducive to divided loyalties . . .’”) (quoting Smith
v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991)). The court did not
identify the conflict constituting good cause to grant the motion. But given
that Pedro’s attorney represented that Pedro’s desire to withdraw his pleas
was the basis for the motion to withdraw as counsel, it is an unremarkable
inference that counsel and the court were concerned with divided loyalties
arising from a potential ineffective assistance of counsel claim.
30
Harter explained, “[t]his inquiry is necessary to protect the defendant’s
right to effective representation of counsel.” 134 Hawaiʻi at 323, 340 P.3d

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trial court did not ask Pedro or his attorney a single “probing

and specific question[]” about the status of their attorney-

client relationship. See id. at 324, 340 P.3d at 456. It made

no inquiries into the frequency, scope, and tenor of the

attorney-client interactions or the role of Pedro’s desire to

withdraw his pleas in causing the conflict between lawyer and

client.

A robust Harter inquiry would have afforded Pedro the

opportunity to discuss his conflict with his attorney and

explain its effect on his ability to quickly move for withdrawal

of his pleas. Because the record does not contain an account of

the conflict between Pedro and his attorney it is difficult to

determine the extent to which that conflict was the root cause

of Pedro’s “delay” in requesting plea withdrawal. Given that

Pedro is not responsible for this gap in the record, we

recognize the reasonable possibility that the conflict between

Pedro and his original counsel contributed to Pedro’s “delay” in

requesting withdrawal of his pleas.

Collectively, the incorrect information Pedro received

about the impossibility of plea withdrawal, the lack of evidence

that the timing of Pedro’s request for plea withdrawal was

motivated by dissatisfaction with the sentencing report, and the

at 455.

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fact that Pedro’s conflict with his counsel may have caused his

“delay” in requesting withdrawal all weigh against finding that

Pedro unduly delayed in requesting withdrawal of his pleas.

3. The circumstances underlying the pleas

Four features of the circumstances surrounding Pedro’s

pleas weigh in favor of allowing their withdrawal.

First, Pedro’s pleas were spur of the moment. On January

7, 2019, Pedro was in custody and transported to court for a

motion to compel discovery hearing. Neither defense counsel,

nor the prosecution, nor the court anticipated that Pedro would

accept the plea agreement. Counsel prepared a change of plea

form at court. He reviewed it with Pedro and the interpreter

shortly before entering the courtroom. Later, at the hearing on

Pedro’s motion to withdraw his pleas, Pedro’s counsel

characterized the pleas as “a sudden change of heart” and “kind

of a surprise to everyone.” Pedro’s haste in entering his pleas

weighs in favor of allowing their withdrawal. Cf. United States

v. Barker, 514 F.2d at 222 (affirming denial of motions to

withdraw guilty pleas where the pleas “were not ill-considered

or offered in haste.”); State v. Dicks, 57 Haw. 46, 59, 549 P.2d

727, 736 (1976) (Kobayashi, J., dissenting) (observing “‘[a]

swift change of heart is itself a strong indication that the

plea was entered in haste and confusion; furthermore, withdrawal

shortly after the event will rarely prejudice the Government's

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legitimate interests.’”) (quoting Barker, 514 F.2d at 222).

Second, Pedro’s pleas were entered well in advance of

trial. At the time Pedro pleaded no contest, the court had

neither adjudicated any motions in limine nor empaneled jurors.

No potential jurors had been summoned. Trial was not imminent.

The judicial resources consumed by allowing Pedro to withdraw

his pleas, reclaim his constitutional rights, and go to trial

were near nil. The prosecution’s argument that allowing the

withdrawal of Pedro’s pleas would undermine the efficient

administration of justice is thus unconvincing.

Third, at the time he entered his pleas, Pedro did not

possess the investigative reports detailing the evidence against

him. Pedro had been imprisoned for more than eight months by

the time defense counsel took steps to get Pedro the case’s

discovery materials. See supra Section I. The record reveals

neither when Pedro first requested his discovery materials nor

when he actually received the documents. But Pedro told the

trial court that he did not receive his discovery materials

until after he had pleaded no contest:

Um, the reason why I did ask for, um a different lawyer,
because like I said before, long time ago, I didn’t believe
that, um, my other lawyer was helping me. And I – I had
hard time to figure out whether I want to take this to
trial or because I never get my – my discovery yet. It was
hard for me to decide because I don’t know what was my
charges. And after I went sign the deal, I just – that’s
when I, a day – couple days or weeks after, I got my
discovery.

He continued: “for a long time I never know what was discovery

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was. I – I – I was – everything that I just found out was

learned from other inmates.” He insisted: “I – I wanted to go

to trial right after I got my discovery. That’s why. Because I

found some false story on that.”

Pedro was not asked to discuss or clarify the “false story”

he found in his discovery. But even so, Pedro’s post-plea

receipt of his discovery materials weighs in favor of allowing

Pedro to withdraw his pleas since Pedro would have been better

positioned to evaluate the benefits and drawbacks of

surrendering his constitutional rights by pleading no contest if

he had possessed his discovery beforehand.

Fourth, by withdrawing his pleas, Pedro would lose the

protections of his plea agreement, which capped his potential

prison term at ten years and left open the possibility of

probation. If convicted of his original charges at trial, Pedro

faced life imprisonment with the possibility of parole. 31 The

difference between the maximum sentence Pedro was guaranteed

under the plea agreement and the potential for life in prison he

would face if he went to trial is significant: the fact that

31
Pedro faced four counts of sexual assault in the first degree, one count of
attempted sexual assault in the first degree, and one count of kidnapping.
These are all class A felonies. HRS §§ 705-502, 707-720, 707-730. Each of
these class A felonies is punishable by an indeterminate term of imprisonment
of twenty years without the possibility of suspension of sentence or
probation. HRS § 706-659. Pedro was also charged with sexual assault in the
fourth degree, a misdemeanor, which carried a prison term of up to one year.
HRS § 707-733. The court, after considering the factors set forth in HRS §
706-606, could order any terms of imprisonment imposed on Pedro to run
consecutively, rather than concurrently. See HRS § 706-668.5.

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Pedro sought to unravel his plea agreement notwithstanding the

severe potential consequences of doing so lends plausibility and

legitimacy to his request for plea withdrawal and supports

allowing it.

4. Pedro’s background weighs in favor of allowing plea
withdrawal

A youthful defendant, or a defendant with limited mental

faculties, education, or English-language proficiency may be

poorly equipped to thoughtfully consider a plea’s implications.

See Smith, 61 Haw. at 523, 606 P.2d at 88 (considering teenage

defendant’s youth and eighth-grade education in determining

there was a fair and just reason for the withdrawal of his

guilty plea); State v. Phua, 135 Hawaiʻi 504, 513, 353 P.3d 1046,

1055 (2015)(explaining that a “‘language barrier’ between the

defendant and the court is a ‘salient fact’ that puts the trial

court on notice that a defendant’s waiver [of the right to

counsel] may be ‘less than knowing and intelligent.’”) (quoting

State v. Gomez–Lobato, 130 Hawaiʻi 465, 471, 312 P.3d 897, 903

(2013).

Pedro was 33 years old and attended school “up until the

ninth grade.” 32 He had been in the United States since 2013.

32
Pedro received vocational training in “building and maintenance.” He also
received a “diploma” from the “Windward School for Adult[].” When asked
whether the diploma he received was the equivalent of a GED, he replied “I
guess so.”

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Pedro knew some English, but his first language was Marshallese.

During the plea colloquy, the court asked Pedro whether it

was true that Pedro understood “the reduced charges of sexual

assault in the second degree in counts one through four with

which the government has agreed to charge me, instead of the

original charges of sexual assault in the first degree.” Pedro

said “Yes.” That was the extent of the discussion about the

charges. 33

The legal terminology surrounding different sexual assault

charges can be complex. Here, that complexity was exacerbated

by the fact that the indictment — which charged Pedro with

committing various sexual acts by “strong compulsion” and

“compulsion” — did not define “strong compulsion” or

“compulsion.” 34 Pedro’s pleas were knowing and voluntary, but

33
At Pedro’s sentencing hearing, the trial court suggested that because Pedro
had written three letters to the court in English about his case he “knew
what the case was about.” This analysis equates “knowing what the case is
about” with having a nuanced understanding of the criminal charges one faces.
Pedro may have had a constitutionally adequate understanding of the charges
he pleaded to, but that does not mean he had a sophisticated understanding of
sexual assault in the second degree and the ways in which it is similar to,
or different from, sexual assault in the first and fourth degrees.

34
In State v. Aledo, No. CAAP-XX-XXXXXXX (App. Nov. 18, 2019) (SDO) — a case
that post-dated Pedro’s proceedings — the ICA observed that the common
understanding and dictionary definition of the word “compulsion”
significantly depart from the statutory definition of that term. It
concluded that an indictment charging attempted sexual assault in the second
degree without defining the statutory term “compulsion” did not provide
adequate notice of the charge. No application for writ of certiorari was
filed in Aledo. Without endorsing or rejecting Aledo’s holding, we note that
the case illustrates the conceptual difficulty of understanding elements like
“compulsion” and “strong compulsion.”

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given his education and linguistic background, his ability to

strategically evaluate the risks and disadvantages of waiving

his constitutional rights – particularly given that the charges

were complex and only cursorily discussed during the plea

colloquy – was sub-optimal. This factor thus weighs in favor of

allowing Pedro to withdraw his pleas.

5. The withdrawal of Pedro’s pleas would cause only minor
prejudice to the prosecution
In evaluating whether there is a “fair and just reason” for

plea withdrawal, the court should “weigh any prejudice to the

prosecution caused by reliance on the defendant’s plea.” Sanney

141 Hawaiʻi at 22, 404 P.3d at 288 (quoting The American Bar

Association’s Criminal Justice Standards Standard 14-2.1(a)).

The approach we introduce here considers prejudice to the

prosecution in determining whether a “fair and just reason” for

withdrawal exists, rather than conducting a discrete prejudice

inquiry only if the defendant has shown a fair and just reason

for withdrawal. Contra Jim at 576, 574 P.2d at 522–23. In some

cases, even a showing of substantial prejudice to the

prosecution may be outweighed by other factors strongly favoring

withdrawal.

In the State’s opposition to Pedro’s motion for plea

withdrawal and at the hearing on that motion, the deputy

prosecuting attorney declared, based on a conversation with the

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complaining witness and her aunt and uncle, that there was

“significant familial and cultural pressure put on [the

complainant] and her family to not cooperate with this

prosecution and blame her for the defendant’s actions.” At the

hearing, the deputy prosecuting attorney also stated:

I found out this morning, just this morning outside the
courtroom, that the victim’s mother is sick with cancer and
she is returning to the Marshall Islands to be with her.
And there is no indication that, um, when she is – is going
back. That is not pressure. But it is prejudice.

Four days later, at Pedro’s May 14, 2019 sentencing

hearing, the deputy prosecuting attorney emphasized that despite

the “pressure” faced by the complaining witness, she had never

recanted: “Not once . . . has she ever changed her – changed her

statement to me or any law enforcement or to anybody. . . . What

she said happened happened. There has never been a recantation

in this case.”

The “prejudice” shown by the prosecution is minimal and

does not weigh strongly against allowing withdrawal of Pedro’s

pleas. This is true for three reasons.

First, uncooperative witnesses are an unexceptional feature

of criminal cases; to the extent that the complaining witness

was reluctant to testify, that reluctance may inconvenience the

State, but it was not caused by Pedro’s pleas. Cf. United

States v. Greer, 956 F. Supp. 525, 529 (D. Vt. 1997) (holding

that criminal defendant was not prejudiced by pre-indictment

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delay during which the State secured the cooperation of

previously uncooperative witnesses because it was not shown

“that the delay caused these individuals to cooperate.”)

(emphasis added).

Second, the mere possibility that the complainant may be

unavailable at trial is speculative and insufficient to

establish that plea withdrawal would prejudice the State. See

Commonwealth v. Gordy, 73 A.3d 620, 628 (Pa. Super. Ct. 2013)

(reasoning that “[s]peculation about harm that might possibly

arise does not establish prejudice so as to deny a pre-sentence

motion to withdraw a guilty plea.”). Our opinion in Gomes is

instructive. In Gomes, we held that, notwithstanding an

affidavit from the prosecution stating that one of its witnesses

had expressed a desire to move to an undetermined location, the

State had not shown it would be substantially prejudiced by the

withdrawal of Gomes’ plea. 79 Hawaiʻi 32, 897 P.2d 959. The

mere fact that “the passage of time might make it even more

difficult for the prosecution to locate [a prosecution witness]”

did not, we held, mean that Gomes was “required to forfeit his

fundamental right to a jury trial.” Id. at 40, 897 P.2d at 967.

Third and finally, the evidentiary support for the

prosecution’s claims concerning prejudice is relatively weak.

There are no signed declarations from the complaining witness or

her family members describing the “pressure” she faced, her

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reluctance to testify against Pedro, or her plans to move to the

Marshall Islands. Cf. United States v. Yazzie, 998 F. Supp. 2d

1044, 1119-1120 (D.N.M. 2014) (finding that government would be

prejudiced by plea withdrawal in case where there were

affidavits from alleged victims indicating their desire to

recant or change their testimony). The prosecution also

declined to present in-court witness testimony.

The deputy prosecuting attorney did declare that there had

been “significant familial and cultural pressure put on [the

complainant] and her family to not cooperate with [the]

prosecution.” But that declaration was dated May 9, 2019, and

five days after that, at the May 14, 2019 sentencing hearing,

the deputy prosecuting attorney told the court that she had not

spoken to the complaining witness in two months. 35 Moreover, at

the sentencing hearing, the deputy prosecuting attorney told the

court that the complaining witness had never recanted her story

or “changed her statement” to the deputy prosecutor.

For the foregoing reasons, the potential of prejudice to

the prosecution weighs only slightly against allowing withdrawal

35
Notably, the State’s contention concerning “cultural pressure” was also
vague and unsubstantiated. The deputy prosecuting attorney did not claim any
personal or specialized knowledge of the complaining witness’s “culture.”
And the record contains no declarations from the complaining witness or her
family members describing the cultural constructions of blame or victimhood
within their community or the “cultural pressure” faced by the complainant.
It is thus unclear what “evidence” the State considered in determining that
the complainant faced “cultural pressure.” The record leaves open the
possibility that this claim is ill-defined stereotype masquerading as legal
argument.

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of Pedro’s pleas. As such, and given Pedro’s assertion and

maintenance of innocence, the timing and circumstances

surrounding Pedro’s pleas and their withdrawal, and Pedro’s

nature and background, we conclude that on balance there is a

“fair and just reason” for the withdrawal of Pedro’s pleas.

III. CONCLUSION

The constitutional right to a public trial activates other

fundamental constitutional rights. Our liberal approach to pre-

sentence requests for plea withdrawal favors allowing the

restoration of these rights. Pre-sentence defendants are

entitled to withdraw their pleas for any “fair and just reason.”

The trial court disregarded this principle by denying

Pedro’s request to withdraw his pleas, reclaim his

constitutional rights, and go to trial. This denial was an

abuse of discretion. We vacate the ICA’s September 28, 2020,

Judgment on Appeal and the trial court’s May 15, 2019 Judgment;

Conviction and Sentence. 36 The case is remanded to the trial

court for proceedings consistent with this opinion.

Shawn A. Luiz, /s/ Sabrina S. McKenna
for petitioner
/s/ Michael D. Wilson
Richard B. Rost,
/s/ Todd W. Eddins
for respondent

36
Because we vacate the circuit court’s judgment and sentence, we decline to
address Pedro’s contention that the circuit court abused its discretion by
sentencing Pedro to an indeterminate ten-year term of imprisonment.

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