IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket Nos. 33914, 33915, 33916 & 33917
STATE OF IDAHO, )
) 2010 Opinion No. 16
Plaintiff-Respondent, )
) Filed: March 8, 2010
v. )
) Stephen W. Kenyon, Clerk
CURTIS GLENN HARTSHORN, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Seventh Judicial District, State of Idaho,
Bonneville County. Hon. Richard T. St. Clair, District Judge.
Order denying motion to withdraw guilty plea, affirmed; orders denying I.C.R. 35
motions for reduction of sentences, affirmed.
Molly J. Huskey, State Appellate Public Defender; Erik R. Lehtinen, Deputy
Appellate Public Defender, Boise, for appellant. Erik R. Lehtinen argued.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
Attorney General, Boise, for respondent. Jessica M. Lorello argued.
______________________________________________
WALTERS, Judge Pro Tem
Curtis Glenn Hartshorn appeals from the district court’s order denying his motion to
withdraw a guilty plea. In addition, Hartshorn appeals from the district court’s orders denying
his motions under Idaho Criminal Rule 35 for reduction of his sentences. For the reasons set
forth below, we affirm.
I.
FACTS AND PROCEDURE
Pursuant to a plea agreement, Hartshorn pled guilty to possession of a controlled
substance with intent to deliver. I.C. § 37-2732(a)(1)(A). Hartshorn was sentenced to a unified
term of ten years, with a minimum period of confinement of three years. The district court
suspended Hartshorn’s sentence and placed him on probation for five years. As conditions of
probation, the district court ordered Hartshorn to serve an additional sixty days in the county jail
with work release privileges and to complete a substance abuse evaluation and treatment as
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recommended by his probation officer. Two days after Hartshorn was sentenced, Hartshorn left
the county jail on work release and failed to return. The following day, Hartshorn was charged
with escape. I.C. § 18-2505.
A few months later, Hartshorn was arrested for escape and four counts of issuing a check
without funds. I.C. § 18-3106(a). After his arrest, an aggravated assault charge was filed against
Hartshorn for attempting to commit a violent injury upon an arresting officer. I.C. §§ 18-901,
18-905(a). In addition, Hartshorn was charged with grand theft for taking, obtaining, or
withholding a financial transaction card belonging to another person. I.C. §§ 18-2403, 18-
2407(1)(b)(3). A public defender was appointed to represent Hartshorn.
Pursuant to a plea agreement, Hartshorn pled guilty to escape and to one count of issuing
a check without funds and entered an Alford1 plea to grand theft. In exchange for the guilty
pleas, the prosecutor agreed to make certain sentence recommendations and to dismiss the
aggravated assault charge and the three counts of issuing a check without funds. A few days
after entering his pleas, Hartshorn sent a letter to the district court, stating that he did not feel
comfortable pleading guilty, that he wanted to disqualify his current counsel, and wanted to
represent himself. The district court treated the letter as a motion to withdraw Hartshorn’s guilty
pleas. At a hearing on the motion, Hartshorn agreed to withdraw his motion to withdraw his
pleas if the district court would immediately proceed with his sentencing and disposition for his
probation violation.
The district court agreed to sentence Hartshorn immediately. The district court revoked
Hartshorn’s probation and ordered execution of the previously suspended sentence for
possession of a controlled substance with intent to deliver. For escape, the district court
sentenced Hartshorn to a determinate term of one year, to be served consecutive to the sentence
in the controlled substance case. For issuing a check without funds, the district court sentenced
Hartshorn to a determinate term of three years, to run concurrent with the controlled substance
sentence. Finally, for grand theft, the district court sentenced Hartshorn to a unified term of
twelve years, with a minimum period of confinement of four years, also to be served concurrent
with the controlled substance sentence. Hartshorn was represented by counsel at the hearing on
1
North Carolina v. Alford, 400 U.S. 25 (1970).
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the motion to withdraw his guilty plea, at disposition on the probation violation, and at
sentencing.
Hartshorn filed pro se I.C.R. 35 motions for reduction of his sentences, asking for
leniency due to mental health and substance abuse issues. After a hearing, the district court
denied Hartshorn’s Rule 35 motions.
Thereafter, Hartshorn filed a pro se appeal from each of the district court’s orders
denying the Rule 35 motions. The district court ordered the appointment of the state appellate
public defender and the withdrawal of the county public defender on appeal. While his appeal
was pending, Hartshorn filed a pro se motion to withdraw his guilty plea to grand theft. As a
result, the proceedings on appeal were suspended pending the outcome of the motion to
withdraw the plea. At a hearing on the motion, Hartshorn appeared via telephone and argued the
motion to withdraw the plea without counsel. The district court denied the motion to withdraw
the guilty plea. Subsequently, the proceedings on appeal resumed.
II.
ANALYSIS
Hartshorn argues that the district court erred by holding the hearing on his motion to
withdraw plea without the presence of counsel. In addition, Hartshorn appeals the district court’s
order denying the Rule 35 motions. Specifically, Hartshorn asserts that the district court abused
its discretion by not considering Hartshorn’s substance abuse problem during sentencing.
A. Motion to Withdraw Guilty Plea
Hartshorn contends that the district court denied him his Sixth Amendment right to
counsel by holding the hearing on the post-judgment motion to withdraw his guilty plea to grand
theft without the presence of counsel. Specifically, Hartshorn asserts that a post-judgment
hearing on a motion to withdraw a guilty plea is a critical stage of the proceedings.
The Sixth Amendment to the United States Constitution guarantees a criminal defendant
the right to counsel during all critical stages of the adversarial proceedings against him or her.
Estrada v. State, 143 Idaho 558, 562, 149 P.3d 833, 837 (2006). See also United States v. Wade,
388 U.S. 218, 224 (1967). A defendant’s right to effective assistance of counsel extends to all
critical stages of the prosecution where his or her substantial rights may be affected. Estrada,
143 Idaho at 562, 149 P.3d at 837. In determining whether a particular stage is critical, it is
necessary to analyze whether potential substantial prejudice to the defendant’s rights inheres in
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the particular confrontation and the ability of counsel to help avoid that prejudice. Id. If the
stage is not critical, there can be no constitutional violation, no matter how deficient counsel’s
performance. Id.
Neither this Court, nor the Idaho Supreme Court, have specifically addressed whether a
hearing on a post-judgment motion to withdraw a guilty plea is a critical stage. The federal
courts prohibit a defendant from withdrawing a guilty plea after the court imposes sentence.
Fed. R. Crim. P. 11(e). Meanwhile, only a few states have decided this issue and most of them
employ different standards or methods to determine when a defendant is entitled to counsel at
such a hearing. For example, Kansas law allows a defendant to withdraw a guilty plea after
sentencing, only if to do so would correct manifest injustice. Kan. Stat. Ann. § 22-3210(d); State
v. Jackson, 874 P.2d 1138, 1140 (Kan. 1994). The Kansas Supreme Court has held that, if a
showing of manifest injustice requires a hearing, such a hearing affects the substantial rights of
the defendant. Jackson, 874 P.2d. at 1142. The Court held that, in that instance, a hearing on a
post-judgment motion to withdraw a guilty plea is a critical stage during which the presence of
counsel is required. Id. Similarly, Florida has established a right to counsel at a post-judgment
hearing on a motion to withdraw a guilty plea, but only if the motion is filed within a time-frame
established by court rule. Fla. R. Crim. P. 3.170(l); Wendt v. State, 19 So. 3d 1024, 1026 (Fla.
Dist. Ct. App. 2009). As a result, Florida courts have determined that hearings occurring within
that specific time frame are considered a critical stage in the proceedings. Id.
Appellate courts in Montana and Washington have declined to find a right to counsel at a
hearing on a post-judgment motion to withdraw a guilty plea. In State v. Winston, 19 P.3d 495
(Wash. App. 2001), the defendant filed a motion to withdraw a guilty plea almost one year after
sentencing. The defendant appeared at his hearing on the motion by telephone and argued his
motion without counsel. After the motion was denied, the defendant appealed, arguing that the
hearing on the motion was a critical stage. Citing Pennsylvania v. Finley, 481 U.S. 551, 555
(1987), the Washington Court of Appeals held that there is no constitutional right to counsel
during any post-conviction proceedings other than the first direct appeal of right, regardless of
the potential for prejudice. Winston, 19 P.3d at 499. In Finley, the defendant filed an application
for post-conviction relief after her conviction for murder was affirmed on direct appeal. Finley’s
court-appointed counsel reviewed the record and determined that no meritorious position existed
to justify a claim for post-conviction relief. As such, the appointed counsel filed a report with
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the trial court detailing this view and withdrew as counsel. Upon review of the record, the trial
court agreed with counsel’s assessment and dismissed Finley’s claim. Finley appealed, arguing
that counsel’s withdrawal and the trial court’s dismissal violated her right to counsel in a post-
conviction action under the United States Constitution’s Due Process Clause and Fourteenth
Amendment. The Pennsylvania Superior Court reversed the trial court, determining that Finley’s
right to counsel under the Constitution was violated. In its decision reversing the Pennsylvania
Superior Court, the United States Supreme Court explained:
Postconviction relief is even further removed from the criminal trial than is
discretionary direct review. It is not a part of the criminal proceeding itself, and it
is in fact considered to be civil in nature. It is a collateral attack that normally
occurs only after the defendant has failed to secure relief through direct review of
his conviction. States have no obligation to provide this avenue of relief, and
when they do, the fundamental fairness of the Due Process Clause does not
require that the State provide a lawyer as well.
Finley, 481 U.S. at 556-57 (citations omitted).
In Winston, the Washington Court of Appeals analogized a post-judgment hearing on a
motion to withdraw guilty plea to the type of post-conviction action described in Finley, and held
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that no right to counsel existed at either proceeding. Winston, 19 P.3d at 497, 499. The
Washington Court went on to distinguish between a post-judgment motion to withdraw a guilty
plea and a similar motion filed before the entry of judgment. The Court explained that the
proceedings prior to judgment are already considered to be a critical stage because the defendant
2
Idaho Code Section 19-852(b) addresses the right to counsel in post-conviction
proceedings:
(b) A needy person who is entitled to be represented by an attorney under
subsection (a) is entitled:
....
(3) to be represented in any other post-conviction or post-commitment
proceeding that the attorney or the needy person considers appropriate,
unless the court in which the proceeding is brought determines that it is
not a proceeding that a reasonable person with adequate means would be
willing to bring at his own expense and is therefore a frivolous
proceeding.
See also State v. Wade, 125 Idaho 522, 523, 873 P.2d 167, 168 (Ct. App. 1994). Because
Hartshorn appeals based on his Sixth Amendment right to counsel, however, we need not address
his right to counsel under I.C. § 19-852(b).
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is entitled to counsel during trial. Id. at 498. However, the Court concluded, a motion filed
months after judgment carries no such constitutional guarantee. Id.
The Montana Supreme Court faced a similar issue in State v. Garner, 36 P.3d 346 (Mont.
2001). In Garner, the appellant filed a motion to withdraw a guilty plea four years after
sentencing and almost three years after the conclusion of post-conviction proceedings. The
Court held that such a motion to withdraw a guilty plea was not a critical stage of the
proceedings. Id. at 356. The Court declined to take a “bright-line” approach and specify the
precise point in the judicial process where the right to counsel attaches or expires. Id. at 355.
Instead, the Court defined a critical stage as any part of the proceedings where there is potential
for substantial prejudice to the defendant. Id. at 355-56. The Court concluded that there was
little potential for substantial prejudice, because the appellant was represented by a number of
attorneys throughout the legal proceedings, and because the time between the guilty plea and the
filing of the motion to withdraw the guilty plea also provided ample opportunity to obtain
counsel. Id. at 356. Therefore, the Court held that Garner’s post-judgment hearing on the
motion to withdraw guilty plea was not a critical stage. Id.
Like the Court in Garner, we must also examine whether a motion to withdraw a guilty
plea after sentencing gives rise to a potential for substantial prejudice. Such a post-judgment
motion to withdraw guilty plea is far removed from the trial process, where the potential for
substantial prejudice is great, and throughout which the right to counsel is constitutionally
guaranteed. During such a hearing prior to the entry of judgment, the presence of counsel may
help avoid prejudice to the defendant should the motion be denied. For example, the success of
counsel’s argument at a pre-judgment motion has an immediate effect on the defendant’s
sentence. In contrast, unlike at trial, during a line-up, or during motions argued prior to
sentencing, a judgment of conviction has already been entered before a post-judgment hearing on
a motion to withdraw a plea takes place. Even if such a motion is denied, the defendant still has
available the right to appeal his or her conviction or to file an application for post-conviction
relief. As such, there is less potential for substantial prejudice to a defendant’s rights.
At oral argument, Hartshorn asserted that the right to counsel at a hearing on a motion to
withdraw a guilty plea exists in perpetuity, regardless of whether the hearing takes place after
judgment has been entered, after the time for filing a direct appeal has expired, or after all
appeals have been exhausted. Such an argument is untenable. Months or years after the
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imposition of sentence or after the timeframe for filing a direct appeal has expired, the prejudice
to the defendant is slight compared to the potential prejudice to the defendant at such a hearing
prior to entry of judgment. Therefore, a post-judgment hearing upon a motion to withdraw a
guilty plea is not a critical stage for purposes of the Sixth Amendment. As a result, Hartshorn
has failed to show that he was deprived of his Sixth Amendment right to counsel at the post-
judgment hearing on his motion to withdraw his guilty plea.
B. Rule 35
A motion for reduction of sentence under I.C.R. 35 is essentially a plea for leniency,
addressed to the sound discretion of the court. State v. Knighton, 143 Idaho 318, 319, 144 P.3d
23, 24 (2006); State v. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App. 1989). In
presenting a Rule 35 motion, the defendant must show that the sentence is excessive in light of
new or additional information subsequently provided to the district court in support of the
motion. State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007). In conducting our
review of the grant or denial of a Rule 35 motion, we consider the entire record and apply the
same criteria used for determining the reasonableness of the original sentence. State v. Forde,
113 Idaho 21, 22, 740 P.2d 63, 64 (Ct. App. 1987); State v. Lopez, 106 Idaho 447, 449-51, 680
P.2d 869, 871-73 (Ct. App. 1984).
Hartshorn argues that the district court erred by failing to consider his substance abuse
problem as a mitigating factor at sentencing. Hartshorn further asserts that he has a new desire to
receive substance abuse and mental health treatment. Previously, Hartshorn was ordered to
complete substance abuse treatment as recommended by his probation officer in the controlled
substance case. Unfortunately, Hartshorn did not attempt treatment as he escaped from custody
just two days after being sentenced. Therefore, upon review of the record, we conclude
Hartshorn has failed to show that the district court abused discretion by denying the Rule 35
motions.
III.
CONCLUSION
A post-judgment hearing on a motion to withdraw guilty plea is not a critical stage.
Therefore, Hartshorn has failed to demonstrate that he was deprived of his Sixth Amendment
right to counsel. In addition, Hartshorn has failed to show that the district court abused its
discretion by denying the Rule 35 motions. Accordingly, the order of the district court denying
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Hartshorn’s motion to withdraw his guilty plea and the orders denying his Rule 35 motions are
affirmed.
Judge GUTIERREZ and Judge GRATTON, CONCUR.
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