dissenting.
I dissent. Defendant Schmidt, subsequent to entering his plea of guilty pursuant to a plea agreement with the State, became possessed of a meritorious defense to the charges lodged against him. This defense was not discoverable prior to the time that Schmidt pled guilty. Certainly this constitutes a “plausible” reason for withdrawing the plea. To grant the motion to withdraw the guilty plea under such circumstances would indeed be fair and just.
*662Schmidt had originally pled not guilty and later added a plea of not guilty by reason of mental illness or deficiency. Pri- or to changing his plea to guilty, he had been evaluated for mental capacity at least four times. The first of these was in Iowa in connection with similar charges several years previous. The second was performed in accordance with § 7-ll-303(b), W.S.1977 in connection with the instant charges. The third was necessitated by charges in another county. The fourth examination was conducted by the same doctor who performed the § 7-ll-303(b) examination, and for purposes of this case he conducted another examination by authority of § 7 — 11— 304, W.S.1977. All of these examinations resulted in a determination that Schmidt was mentally competent at the time of the alleged criminal acts giving rise to this prosecution. After completion of these four examinations, the State amended the information to allege aggravating circumstances. Defendant then changed his plea to guilty to the current charge, in exchange for the State’s promise to drop the aggravating charge and other concessions. Shortly thereafter, yet another examination was performed by a doctor who had more extensive experience with the post-Vietnam stress syndrome than any of the other evaluators. His determination was that Schmidt, at the time of the alleged criminal act, lacked substantial capacity to appreciate the wrongfulness of his conduct. Thus, the results of this examination revealed to the defendant a meritorious defense to the charges against him and he sought to withdraw his plea of guilty.
Based on these facts, the majority determine that the trial court did not abuse its discretion in denying the presentence motion to withdraw the guilty plea. The majority properly indicate that there is no absolute right to withdraw a guilty plea prior to sentencing and that whether to grant such a motion is within the sound discretion of the trial court. Hanson v. State, Wyo., 590 P.2d 832, 835 (1979); Ecker v. State, Wyo., 545 P.2d 641, 642 (1976); Nagelberg v. United States, 377 U.S. 266, 267, 84 S.Ct. 1252, 1253, 12 L.Ed.2d 290 (1964); United States v. Hancock, 607 F.2d 337 (10th Cir.1979); Dorton v. United States, 447 F.2d 401, 411-412 (10th Cir.1971). The majority also properly equate the Wyoming standard that the defendant must show a plausible reason to withdraw his plea, Ecker v. State, supra, with the federal test of fairness and justice. Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927); Barker v. United States, 579 F.2d 1219, 1223 (10th Cir.1978); Dorton v. United States, 447 F.2d at 412. However, the majority seem to ignore the fact that in discretionary rulings on motions to withdraw pleas of guilty, the trial court, and this court on review, have the benefit of judicial opinions which delineate the factors to be considered in the exercise of such discretion. Without saying as much, the majority consider and eliminate one such factor in this case by indicating that there is no contention that Rule 15, W.R.Cr.P. (Rule 11, F.R.Cr.P.) has not been complied with. 668 P.2d at'660-661. I depart from the majority because they have failed to adequately evaluate the other factors which must bear upon the discretionary exercise.
A presentence motion to withdraw a guilty plea is judged by a less stringent standard than a postsentence motion, Hicklin v. State, Wyo., 535 P.2d 743, 749 (1975), primarily because at this stage it is appro-prite to give maximum protection to the defendant’s right to his day in court. Kadwell v. United States, 315 F.2d 667, 670 (9th Cir.1963). In such cases, doubts should be resolved in favor of the defendant, United States v. Stayton, 408 F.2d 559, 560 (3rd Cir.1969), because the benefits which accrue to all of us by putting the State to its proof override any consideration of inconvenience to courts and prosecutors. United States v. Roberts, 187 U.S.App.D.C. 90, 570 F.2d 999, 1009 (1977), appeal after remand 195 U.S.App.D.C. 1, 600 F.2d 815, aff’d 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622. These are the reasons behind the early holding that a presentence motion to withdraw a guilty plea should be granted “if for any reason the granting of the privilege seems fair and just.” (Emphasis added.) Kercheval v. United States, 274 U.S. at 224, 47 S.Ct. at *663583. Such withdrawal should be “freely allowed,” Poole v. United States, 102 U.S.App.D.C. 71, 250 F.2d 396, 400 (1957); United States v. Roberts, 570 F.2d at 1008; Kadwell v. United States, 315 F.2d at 670, and granted with liberality, Dorton v. United States, 447 F.2d at 411-412, and even with “ ‘great liberality,’ ” United States v. Fina, 289 F.Supp. 288, 289 (E.D.Pa.1968), quoting from United States v. Roland, 318 F.2d 406, 409 (4th Cir.1963). These are the general principles that guide the trial court’s discretion in such cases.
These general principles are further refined by specific guidelines adopted by the courts. These guidelines include consideration of the timeliness of the motion, United States v. Roberts, 570 F.2d at 1008, and whether the Rule 15, W.R.Cr.P. hearing was properly afforded to the defendant. Kadwell v. United States, 315 F.2d at 669. The courts are split on whether an avowal of innocence should be a factor to consider. United States v. Washington, 341 F.2d 277, 9 A.L.R.3d 448, 460 (3d Cir.1965), cert. denied 382 U.S. 850, 86 S.Ct. 96, 15 L.Ed.2d 89, reh. denied 382 U.S. 933, 86 S.Ct. 317, 15 L.Ed.2d 346; Kadwell v. United States, 315 F.2d at 670, n. 12. In this case, the most important factor of those embraced by the courts as mitigating in favor of granting a plea-withdrawal motion is that the defendant believed and had reason to believe that a meritorious defense was available to him. United States v. Joslin, 140 U.S.App.D.C. 252, 434 F.2d 526, 531 (1970); Kadwell v. United States, 315 F.2d at 670, n. 12; Gearhart v. United States, 106 U.S.App.D.C. 270, 272 F.2d 499, 502 (1959).
Defendant Schmidt believed he had a meritorious defense based on the fifth of the enumerated psychiatric evaluations. This factor alone is sufficient to mandate granting of the plea-withdrawal motion. Poole v. United States, 250 F.2d at 400. Coupled with the principles of great liberality which guide the courts, United States v. Hancock, 607 F.2d at 337, this basis indicates a clear case of abuse of discretion by the trial court.
Upon a motion to withdraw a guilty plea based on an available defense, the trial court should not undertake to decide the merits of the defense. Gearhart v. United States, 272 F.2d at 502. Also see: Poole v. United States, 250 P.2d at 401; 3 Wright, Federal Practice & Procedure: Criminal 2d § 538, p. 203 (1982). That is the jury’s function. Hence it is irrelevant in this case that there were four reports in the record indicating that defendant was competent and only one indicating he was incompetent. While this might possibly defeat the defense at trial, the question to be addressed on the motion to withdraw the guilty plea is whether, based on the possible defense, defendant is entitled to an opportunity to cast a reasonable doubt on the State’s case against him. Our entire criminal justice system is based on the premise that he is.
Although the majority acknowledge that prejudice to the prosecution is not required to defeat a motion to withdraw a guilty plea, their emphasis on the fact that the State had prepared its case and that the jury panel was waiting seems to indicate they were not unaffected by the possibility of prejudice to the State. I emphasize that prejudice is not determinative. Even if it were, it is my firm conviction that prejudice has not been shown here. This cannot constitute prejudice as a matter of law. “[Wjhere such prejudice is absent or minimal, withdrawal is routinely permitted,” United States v. Roberts, 570 F.2d at 1011. The State must also show that the witnesses would be unavailable, Government of the Virgin Islands v. Berry, 631 P.2d 214 (3rd Cir.1980), or some other substantial impact on the State’s presentation of its case. United States v. Brown, 617 F.2d 54 (4th Cir.1980); United States v. Carden, 599 F.2d 1320 (4th Cir.1979), cert. denied 444 U.S. 874, 100 S.Ct. 156, 62 L.Ed.2d 101; United States v. Strauss, 563 F.2d 127 (4th Cir.1977).
The trial judge abused his discretion in denying Schmidt’s presentence motion to withdraw his guilty plea based upon an available defense. I would reverse.