State v. Ballard

ON DENIAL OF PETITION FOR REHEARING

McFADDEN, Justice

Pro Tem.

In a petition for rehearing, Ballard has argued that our lead opinion focuses improperly upon the voluntariness of his plea and fails to recognize his alleged entitlement to withdraw the plea before sentencing. For reasons explained below, we adhere to our announced decision, 114 Idaho 799, 761 P.2d 1151.

When a defendant seeks to withdraw a plea under I.C.R. 33(c), it is appropriate— albeit not always necessary — to determine whether the plea was made voluntarily. If the plea is invalid due to a lack of voluntariness, then the Court need not consider other asserted grounds for relief under the rule. Thus, in the present case, our lead opinion examines the threshold question of voluntariness. Upon finding that the plea was entered voluntarily, we then consider whether any other ground exists for withdrawing the plea.

On appeal, only one such ground has been asserted. Ballard contends that if the state is free to disregard certain provisions of the plea bargain agreement, then he should be relieved of the plea itself. Although this contention may seem intuitively attractive, it conflicts with the actual terms of the agreement.

As noted in our lead opinion, Ballard pleaded guilty to one of three charges against him. In return for his plea, the state agreed to dismiss the other charges, to recommend no more than a ten-year indeterminate sentence on the charge to which he pleaded guilty, and to allow him to remain free on bail while awaiting the imposition of sentence. However, the parties further agreed, as part of the plea bargain, that if Ballard did not appear for sentencing as scheduled, the state would be at liberty to reinstate the dismissed charges, to recommend any sentence, and to file an additional charge for the failure to appear. Thus, when the bargain was struck, Ballard received immediate benefits which constituted fair consideration for his plea. Those benefits continued in force until Ballard engaged in the unilateral act of failing to appear for sentencing.

When Ballard was apprehended and returned to the district court, he evidently became aware that the state would no longer limit its sentencing recommendation to ten years. Ballard moved unsuccessfully to set aside his plea. After this motion had been heard and denied, the state did in fact recommend a longer sentence — a fifteen-year fixed term. In our view, the state neither breached nor disregarded the plea bargain agreement in making this sentence recommendation. In our view, the state neither breached nor disregarded the plea bargain agreement in making this sentence recommendation. Rather, it exercised a right reserved, and expressly recognized, in the agreement itself. Consequently, we adhere to our earlier conclusion that Ballard was not entitled to withdraw his guilty plea on the ground that the state had acted contrary to the plea bargain.

A broader question, framed by Justice Bistline’s dissent and echoed in the petition for rehearing, is whether Ballard needed any reason at all to withdraw his plea. Our lead opinion follows decisions by the Idaho Court of Appeals and by numerous federal courts, requiring a defendant to show a “just” reason for withdrawing his plea before sentencing. These decisions hold that when a just reason is presented, the defendant is entitled to relief unless the state makes a strong counter-showing of unfair prejudice.

We believe that the threshold requirement of a just reason is not an onerous burden. It is a reasonable requirement, to be administered liberally and with due recognition of the serious consequences attending a guilty plea. See generally, 3 C. Wright, Federal Practice and Procedure, Criminal § 538 (1982). A defendant’s constitutional rights, such as the right to a jury trial and the right to put the government to its burden of proof, are not impermissibly abridged by requiring a just reason for withdrawing a plea which the *805defendant voluntarily made and which the court accepted after careful inquiry. Indeed, the United States Supreme Court (with the acquiescence of Congress) has promulgated a rule, similar in function to I.C.E. 33(c), incorporating the case law requirement of a “fair and just reason” for withdrawing a plea before sentence is imposed. See F.R.Crim.P. 32(d) (1983 amendment).

Here, the problem is that Ballard has presented no reason for withdrawing his plea other than the allegation that the state somehow breached the plea bargain agreement. Even the most liberal interpretation of a “just” reason cannot include a facially incorrect allegation. Our decision on this point is not a blind reaction to Ballard’s conduct in leaving the state. Rather, it focuses on the more precise question whether Ballard presented a just reason to withdraw his plea. The answer to that question, we again conclude, is “no.”

Accordingly, the petition for rehearing is denied.

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