State v. Ballard

McFADDEN, Justice

Pro Tem.

The principal question presented in this appeal is whether the district court abused its discretion by refusing to allow a criminal defendant to withdraw his guilty plea. We also are asked to decide whether the court abused its sentencing discretion. For reasons stated below, we uphold the district court’s rulings and affirm the judgment of conviction.

On October 19, 1983, James A. Ballard, aka Curtis Edward Jackson, pled guilty to one count of attempted manufacture of methamphetamine, a controlled substance. See I.C. § 37-2732. Ballard's guilty plea was pursuant to a plea bargain agreement in which the Ada County Prosecuting Attorney’s Office agreed to dismiss one count of aggravated battery and one count of felony possession of a controlled substance. Further, the state was to limit its sentence recommendation to no more than an indeterminate ten-year prison sentence concurrent with an indeterminate three-year sentence in another matter. It was also understood that the state agreed not to seek revocation of defendant’s bond pending sentence. Lastly, the state conditioned the plea bargain agreement with the understanding that in the event the defendant did not personally appear at his sentencing, the state would then be allowed to proceed on the two dismissed felony counts, plus file a new charge for failure to appear, and be released from any sentencing recommendation restrictions.

Prior to accepting Ballard’s plea of guilty, the court inquired as to the factual basis for his plea. The trial court accepted Ballard’s guilty plea after extensively explaining to Ballard the effects of the guilty plea and questioning him with regard to all relevant elements of the crime. The court also granted Ballard’s request to stay free until sentencing so he might “finish straightening up his personal affairs.” Ballard did not appear for sentencing. Nearly three years later, in 1986, after Ballard had been apprehended in California and returned to Idaho, Ballard filed a motion to withdraw his guilty plea. That motion was denied. Although the trial court recognized that generally motions to withdraw a guilty plea before sentencing are to be liberally allowed, it found that Ballard’s circumstances did not warrant the granting of his motion. The court reasoned:

“Those principles are good principles. However they don’t have much applicability in this case where the defendant has absented himself for a period of some three years. I think that is a significant prejudice to the prosecution and precludes the withdrawal of the plea at this point. I will deny the motion to withdraw the guilty plea. I will set the matter over for sentencing.”

On November 17, 1986, the defendant was sentenced to the maximum, a fixed term of fifteen years to run concurrently with a term of imprisonment imposed by California courts.

On this appeal Ballard contends that his plea of guilty was qualified in that he never admitted the intent element and that, in effect, he was merely taking advantage of the favorable terms in the plea bargain agreement. The issues of this appeal involve I.C.R. 33(c).1

I

Preliminarily, we must determine whether Ballard’s plea was voluntarily and *801intelligently given. See State v. Colyer, 98 Idaho 32, 557 P.2d 626 (1976). The trial court judge extensively questioned the defendant as to the basis of his guilty plea. The record indicates that Ballard (1) was specifically informed regarding the effect of his guilty plea on his rights, (2) was informed in detail of the elements of the crime to which he was pleading guilty, and (3) understood fully the implications of the guilty plea. The trial court judge began the hearing by reading Count II (Attempt to Manufacture Controlled Substance) to Ballard. The judge then questioned Ballard about the facts behind the crime, his intentions to commit the crime, the elements of the crime, Ballard’s desire to waive his constitutional rights, whether Ballard had sufficiently discussed the plea with his attorney, and whether he wanted more time to make the decision. After Ballard had sufficiently answered each of these inquiries, the trial court judge then concluded:

“THE COURT: Based upon the statements that have been made, it appears that the plea of guilty is given knowingly, voluntarily. It appears that there is a factual basis. There are some reservations concerning that, but it appears that the Defendant knowingly approaches that and has waived any claims of a defense. I will, therefore, accept the plea of guilty.”

The record fully sustains the district court’s conclusion that Ballard’s guilty plea was given knowingly and intelligently, and was voluntarily made.

II

The primary issue in this appeal is whether the district court abused its discretion in denying Ballard’s motion to withdraw his guilty plea. See State v. Simons, 112 Idaho 254, 731 P.2d 797 (Ct.App.1987). In State v. Howell, 104 Idaho 393, 659 P.2d 147 (Ct.App.1983), the Court of Appeals discussed the discretion vested in trial judges by I.C.R. 33(c):

“A grant of discretion allows the court to decide each question on its own merits, considering the circumstances which are peculiar to that situation. ‘Discretion ... allows the individualization of law and permits justice at times to be handmade instead of mass produced.’ (Citations omitted.)
“In our view the proper exercise of such discretion requires identifying the conflicting factors which should bear on the decision, and arriving at a decision based on a well-reasoned consideration of those factors.” 104 Idaho at 396-397, 659 P.2d 147 (emphasis added).

The exercise of this discretion is affected by the timing of the motion to withdraw the guilty plea. As indicated by Rule 33(c) itself, a motion made after sentencing may be granted only “to correct manifest injustice.” A less rigorous standard applies to a motion made before sentencing. This is illustrated by State v. Henderson, 113 Idaho 411, 744 P.2d 795 (Ct.App.1987), where the Court of Appeals determined that the district court had abused its discretion in denying a defendant’s motion to withdraw his plea before sentencing. In that case the Court of Appeals delineated the legal requirements for defendants who seek to withdraw a plea of guilty before sentencing. First, the defendant must present a just reason for withdrawing the plea. Once the defendant has met this burden, the state may avoid the granting of the motion by demonstrating that prejudice would result from withdrawal of the plea. 113 Idaho at 414, 744 P.2d at 798. Also see United States v. Webster, 468 F.2d 769 (9th Cir.1972) (holding that the failure to present and support a plausible reason, even absent prejudice to the prosecution, will dictate against granting withdrawal).2

*802Thus, we must examine Ballard’s grounds for his motion for withdrawal of his plea. After being recaptured in California and brought back to Idaho, Ballard filed a motion to withdraw the guilty plea under I.C.R. 33, alleging that the original plea was made under duress from the police authorities. However, he later abandoned that allegation. At a hearing on the motion, Ballard’s counsel indicated that

“defendant’s motion to withdraw the guilty plea is changed in its nature since receipt of the transcript of the entry of the plea. The defendant is no longer alleging that he was under the influence of narcotics or any duress.
“I think that the true nature of our motion to withdraw at this point is based on the fact that defendant entered his guilty plea pursuant to a plea bargain, and on October the 19th he pled guilty to count two of the information, he went on the record that counts one and three would be dismissed and the state would be limiting itself to an indeterminate 10-year recommendation.
“The state further agreed not to seek a revocation of the bond and reserved for themselves the right to proceed on all charges, plus any new charges should Mr. Jackson not appear for sentencing. And, in fact he did not appear, and I understand now that the state has exercised its option to withdraw its plea bargain and proceed against Mr. Jackson without a ceiling to its sentencing recommendation and has, in fact, charged him with a new felony, failure to appear in front of Judge McKee.”

In effect, then, Ballard’s position was that the state somehow had breached the plea bargain agreement. We disagree. In that agreement, Ballard acknowledged that the state would be released from its commitments if Ballard (who was then free, based on his promise to return for sentencing) failed to appear for the sentencing. When Ballard absconded from the jurisdiction, failing to show up for the sentencing, the state was entitled to bring escape charges against him and to withdraw its recommendation on sentencing.

In summary, Ballard did not demonstrate a just reason for withdrawal of his plea; consequently, the state was not required to show it would be prejudiced by the granting of Ballard’s motion. We conclude that it was not an abuse of discretion for the district court to deny the motion to withdraw the plea.

Ill

Finally, Ballard has contended that the district court abused its discretion in sentencing him to a fixed fifteen-year prison term. Where a sentence is within the statutory limits set out by the legislature, it will not be disturbed on appeal unless there is a clear showing of abuse of discretion. State v. Seifart, 100 Idaho 321, 597 P.2d 44 (1979); State v. Wolfe, 99 Idaho 382, 582 P.2d 728 (1978); State v. Chapa, 98 Idaho 54, 558 P.2d 83 (1976). The sentence imposed on Ballard was within the statutory limits and, based on the findings of the district court, did not constitute an abuse of discretion. As the trial court pointed out, in addition to Ballard's conviction for the attempt to manufacture a controlled substance, he also had intentionally left the State of Idaho to avoid the sentence. This action resulted in the forfeiture of the security which was his mother’s home. Ballard was additionally involved in subsequent drug-involved crimes and convicted for them. He was previously involved in a killing. The district court’s determination that society needed to be protected from Ballard for a substantial period of time was reasonable, based on these factual findings.

*803Accordingly, the judgment of conviction is affirmed.

BAKES, J., and BURNETT, J. Pro Tern., concur.

. “[Idaho Criminal] Rule 33. Sentence and judgment.— ...

"(c) Withdrawal of plea of guilty. A motion to withdraw a plea of guilty may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.”

. I.C.R. 33(c) is the same as Federal Rule 32(d), and thus federal case law is relevant to the resolution of this case. Our review of federal case law failed to reveal a case that is on all fours factually with this case. However, the federal cases are clear that: (1) presentence withdrawal of a guilty plea is hot an automatic right, United States v. Barker, 514 F.2d 208, 221 (D.C.Cir.1975); Goo v. United States, 187 F.2d 62 (9th Cir.1951); (2) the defendant has the burden of proving that the plea should be withdrawn, Everett v. United States, 336 F.2d 979, 984 (D.C. *802Cir.1964); (3) the standard of review in these cases is an “abuse of discretion" standard, United States v. Rasmussen, 642 F.2d 165, 167 (5th Cir.1981); United States v. Barker, supra at 220; Dorton v. United States, 447 F.2d 401 (10th Cir.1971); Everett v. United States, supra at 982; (4) prejudice to the state is not a necessary finding for rejection of a motion to withdraw plea, United States v. Rasmussen, supra at 168; however, a showing of prejudice may be sufficient to support a denial; (5) the fact that the withdrawal of a guilty plea would substantially inconvenience the trial court is a proper factor for consideration on motion to withdraw a guilty plea, United States v. Barker, supra at 222.