Hawaii Supreme Court Announces Five-Factor Test in Determining Whether There’s ‘Fair and Just Reason’ to Withdraw Plea
by David M. Reutter
The Supreme Court of Hawaii held that a trial court abused its discretion in denying a defendant’s motion to withdraw his no contest plea before sentencing. The Court’s ruling announced a five-factor test for trial courts to use in evaluating whether a fair and just reason supports a defendant’s pre-sentence request for plea withdrawal.
The Court’s opinion was issued in a certiorari proceeding brought by Theo Pedro. In a June 2018 indictment, Pedro was charged with four counts of sexual assault. He unexpectedly accepted a plea agreement on January 7, 2019, and entered a no contest plea to amended charges of a lower degree of sexual assault in exchange for a 10-year sentence on each count, to run concurrently. The trial court accepted the plea and set a hearing date for sentencing.
Defense subsequently filed for discovery materials. After Pedro received copies of them, he decided that he wanted to withdraw his plea. Defense counsel moved on March 14, 2019, to withdraw as counsel because Pedro did not want the public defender to represent him. A presentence report was filed that same day. The trial court granted the motion to withdraw on April 4, 2019, and appointed new counsel.
Pedro’s new attorney moved on May 3, 2019, to withdraw Pedro’s no contest plea. The motion stated that Pedro “adamantly” maintained his innocence and that he did not fully understand his trial options because prior counsel failed to explain them to him. Previous counsel also pressured Pedro, who required the use of an interpreter, and told him his only option was to accept the plea offer.
The trial court denied the motion, finding the plea was entered intelligently, voluntarily, and knowingly. It noted that it had “meticulously” reviewed the change of plea form with Pedro. It also found there were no changed circumstances to justify withdrawal of the plea. The Intermediate Court of Appeals (“ICA”) rejected Pedro’s argument that the trial court abused its discretion in denying the motion. Pedro then sought certiorari review in the Hawaii Supreme Court, which was accepted.
That Court began its discussion of the merits of the claim by highlighting its standard in State v. Jim, 58 Haw. 574 P.2d 521 (1978), for pre-sentence requests for plea withdrawal. The Jim Court instructed 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.”
The trial court’s conclusion that Pedro’s pleas were constitutionally valid was correct, according to the Court. The question, however, was whether Pedro presented a fair and just reason to withdraw his plea. The Court determined that both the trial court and the ICA misapplied its ruling in State v. Gomes, 897 P.2d 959 (1995).
The Gomes Court identified two “fundamental bases” of establishing a “fair and just reason” for the withdrawal of a plea: (1) the defendant’s rights were not knowingly, intelligently, or voluntarily waived or (2) a change in circumstances or new facts warrant withdrawal.
The Court stated that Gomes held courts abuse their discretion when they deny 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.” Gomes.
The Court noted that the Gomes four-part test is narrow. “It establishes one set of circumstances in which a trial court must grant a pre-sentence motion for plea withdrawal based upon 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 withdrawal,” the Court explained. “The four factors outlined in Gomes impose a floor, not a curb, on trial courts’ discretion to grant a pre-sentence motion for withdrawal,” according to the Court. It also made it clear that the Gomes test “is not a checklist of conditions defendants must meet before they are entitled to withdraw their plea.”
The Court stated that rather than focus exclusively on the new circumstances prong of Gomes, the trial court and ICA should have focused on whether there was any fair and just reason to allow withdrawal of Pedro’s plea. The Court explained that the “operative question” 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.” But that’s the misguided analysis the trial court conducted and affirmed by the ICA, according to the Court. Instead, the lower courts “should have examined the totality of the circumstances to determine whether there was any fair and just reason justifying Pedro’s plea withdrawal,” the Court stated.
To prospectively facilitate the analysis of the fair and just reason question, the Court announced a five-factor test to guide trial courts in their evaluation. They 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.”
The Court then applied those factors to the present case. It reiterated that its “liberal approach” favors withdrawal where the defendant has asserted innocence and has never admitted guilt. See Jim. Pedro asserted his innocence and had never admitted guilt. Thus, that factor, while not dispositive, weighed strongly in favor of withdrawal, according to the Court.
As to the second factor, there was no undue delay in Pedro seeking withdrawal of his plea. Similarly, based on the facts of the case, the Court determined that the circumstances underlying the plea “weigh in favor of allowing” withdrawal. That is, his plea was spur of the moment; it was entered well in advance of trial; he didn’t have the investigative reports outlining the evidence against him at the time of his plea; and by withdrawing, he would lose protections of the plea agreement.
Regarding the fourth factor, he had a ninth-grade education and had limited understanding of English. Finally, after reviewing the facts of the case, the Court determined that withdrawal would cause only minor prejudice to the prosecution. Thus, the Court ruled that “on balance there is a ‘fair and just reason’ for the withdrawal of Pedro’s” plea and that the denial of his request to withdraw was an abuse of discretion.
Accordingly, the Court vacated the judgments below and remanded to the trial court for proceedings consistent with its opinion. See: State v. Pedro, 488 P.3d 1235 (Haw. 2021).
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