State v. Roy ( 2018 )


Menu:
  •                IN THE COURT OF APPEALS OF THE STATE OF IDAHO
    Docket No. 45532
    STATE OF IDAHO,                                )
    )    Filed: December 31, 2018
    Plaintiff-Respondent,                   )
    )    Karel A. Lehrman, Clerk
    v.                                             )
    )    THIS IS AN UNPUBLISHED
    FREDRICK D. ROY,                               )    OPINION AND SHALL NOT
    )    BE CITED AS AUTHORITY
    Defendant-Appellant.                    )
    )
    Appeal from the District Court of the Second Judicial District, State of Idaho, Nez
    Perce County. Hon. Jay P. Gaskill, District Judge.
    Opinion and order denying motion to withdraw guilty plea and appoint new
    counsel, affirmed.
    Eric D. Fredericksen, State Appellate Public Defender; Andrea W. Reynolds,
    Deputy Appellate Public Defender, Boise, for appellant.
    Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney
    General, Boise, for respondent.
    ________________________________________________
    GRATTON, Chief Judge
    Fredrick D. Roy appeals from the judgment of conviction and the opinion and order
    denying his motion to withdraw guilty plea and appoint new counsel. Roy challenges the district
    court’s denial of the motion to appoint new counsel. For the reasons set forth below, we affirm.
    I.
    FACTUAL AND PROCEDURAL BACKGROUND
    Roy pled guilty to unlawful possession of a firearm, 
    Idaho Code § 18-3316
    . The district
    court accepted the terms of the plea agreement and imposed a sentence of two years determinate;
    however, the court stayed the execution of the sentence pending Roy’s appeal from the denials of
    a motion to suppress and a motion in limine. On appeal, this Court affirmed the district court.
    State v. Roy, Docket No. 44472 (Ct. App. May 24, 2017) (unpublished).
    1
    Following issuance of the remittitur, the district court held a sentencing hearing. At the
    sentencing hearing, the court imposed a sentence of two years determinate. Also at the hearing,
    Roy requested that the $10,000 cash bond that his mother had posted on his behalf be released to
    his mother’s estate. Following the hearing, the district court entered the judgment of conviction
    and an order of bond forfeiture or release, which required “that the Bond be applied to Fines,
    Costs and to any other Funds as Ordered by the Court” before any remaining sums could be
    disbursed to the estate of Roy’s mother.
    Thereafter, Roy filed a pro se motion to withdraw guilty plea and appoint new counsel.
    Roy attached a receipt from the district court to the motion that showed $8,905.77 of the
    $10,000.00 cash bond had been applied to amounts owing by Roy. Before the district court
    considered the motion to withdraw guilty plea and appoint new counsel, Roy also filed a pro se
    notice of appeal and motion for appointment of appellate counsel.              The district court
    subsequently denied the motion to withdraw guilty plea and motion to appoint new counsel. In
    the opinion and order denying the motion to withdraw guilty plea and motion to appoint new
    counsel, the court wrote: “The Defendant also sought substitution of counsel in this motion.
    Subsequently, the Defendant filed a second appeal in this matter.         The Defendant will be
    appointed counsel for that appeal, therefore, the motion for substitution of counsel is moot.” Roy
    timely appeals.
    II.
    ANALYSIS
    On appeal, Roy asserts the district court abused its discretion in denying the motion to
    appoint new counsel. The State, however, asserts the district court did not abuse its discretion in
    denying the motion. We agree.
    When a trial court’s discretionary decision is reviewed on appeal, the appellate court
    conducts a multi-tiered inquiry to determine whether the lower court correctly perceived the
    issue as one of discretion, acted within the boundaries of such discretion, acted consistently with
    any legal standards applicable to the specific choices before it, and reached its decision by an
    exercise of reason. State v. Herrera, ___ Idaho ___, ___, 
    429 P.3d 149
    , 158 (2018).
    Roy argues the district court abused its discretion in concluding Roy’s motion for
    appointment of counsel was moot because it did not act consistently with the applicable legal
    2
    standard. According to Roy, the court should have considered the motion to appoint new
    counsel under the standard set forth in I.C. § 19-852(2)(c), which provides:
    An indigent person who is entitled to be represented by an attorney under
    subsection (1) of this section is entitled:
    ....
    (c) To be represented in any other post-conviction or post-
    commitment proceeding that the attorney or the indigent 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.
    Roy contends that because the court did not find the motion to withdraw guilty plea frivolous, he
    had the right to the assistance of counsel on that motion pursuant to I.C. § 19-852(2)(c).
    The State argues Roy failed to show that the district court abused its discretion because
    Roy was, in fact, represented by appointed counsel when he filed his post-judgment pro se
    motions. Additionally, the State argues he misinterprets the motion before the district court as a
    motion for the appointment of counsel when the court properly construed it as a motion for
    substitution of counsel. Thus, the State contends any issue regarding substitution should not be
    considered because on appeal Roy did not make any arguments that the district court erred by
    denying the motion for substitution of counsel. Alternatively, the State argues that even if the
    substitution of counsel issue is considered on appeal, the district court properly denied Roy’s
    motion for substitution of counsel because Roy was only entitled to substitute counsel upon a
    showing of good cause and none of the issues claimed by Roy rose to the level of good cause.
    The district court correctly construed Roy’s motion to appoint new counsel as a motion
    for substitution of counsel. The record reveals that Roy was represented by a court-appointed
    attorney at the time he filed the motion to appoint new counsel. At that time Idaho Criminal
    Rule 44.1 provided:
    No attorney may withdraw as an attorney of record for any defendant in
    any criminal action without first obtaining leave and order of the court . . . .
    Leave to withdraw as the attorney of record for a defendant may be granted by the
    court for good cause. Provided, an attorney may withdraw at any time after the
    final determination and disposition of the criminal action . . . but in the event of
    conviction an attorney may not withdraw without leave of the court until the
    expiration of the time for appeal from the judgment of conviction.
    I.C.R. 44.1 (2015). The magistrate granted Roy’s application for appointment of a public
    defender, and he was represented by court-appointed counsel throughout his case.              Roy’s
    3
    appointed counsel never obtained leave or an order from the district court permitting him to
    withdraw as attorney of record in this matter. In the district court’s order appointing the State
    Appellate Public Defender to represent Roy on his initial appeal to this Court, the district court
    explicitly ordered Roy’s court-appointed trial counsel to “continue to represent [Roy] in all other
    aspects of this case, subject to the further order of this court.” In compliance with this order,
    Roy’s court-appointed attorney appeared with Roy at the sentencing hearing following the
    issuance of the remittitur from Roy’s initial appeal. The record clearly reveals that the district
    court never signed an order allowing Roy’s appointed counsel to withdraw, and Roy filed the
    motion to withdraw guilty plea and appoint new counsel before the expiration of the time for
    appeal from the judgment of conviction. Thus, when Roy filed the pro se motion to withdraw
    guilty plea and appoint new counsel, less than one month after the sentencing hearing, he was
    still represented by his court-appointed public defender.
    The text of Roy’s motion also supports the conclusion that Roy was still represented by
    court-appointed counsel at the time he filed the motion to appoint new counsel. Roy referenced
    his appointed public defender by name several times in the motion. He also closed the motion by
    asking the court to “find [defense counsel] to be ineffective and Appoint Counsel who is capable
    of compliying [sic] with the rule 11 Plea agreement.” Roy’s decision to file the motion to
    withdraw guilty plea and appoint new counsel pro se effectively cut his own counsel out of the
    proceedings, and he has failed to show from the record that his court-appointed counsel would
    not or could not assist with the motion to withdraw guilty plea. Because Roy was represented by
    court-appointed counsel at the time he filed the motion to appoint new counsel, the district court
    correctly construed Roy’s motion to appoint new counsel as a motion for substitution of counsel.
    Furthermore, the court did not act inconsistently with applicable law because there was no
    violation of I.C. § 19-852(2)(c).
    Moreover, Roy made no showing that he needed substitute counsel. Roy was attempting
    to use the motion to withdraw guilty plea as a vehicle for recovering the cash bond that he
    alleged had been unlawfully applied to fines and debts before being relinquished to his mother’s
    estate. 1 The bases of Roy’s motion to withdraw guilty plea were: (1) an unsupported allegation
    1
    The bond matter is not relevant to the withdrawal of Roy’s guilty plea, but we make no
    comment on the application of the bond to fines, costs, and to any other funds as ordered by the
    court before any remaining sums could be disbursed to the estate of Roy’s mother.
    4
    that the State had violated the Rule 11 plea agreement, and (2) an allegation that Roy’s court-
    appointed counsel was either unable or unwilling to file an appeal in the Ninth Circuit Court of
    Appeals. Roy suggests on appeal that if the court had granted his motion to appoint new
    counsel, then counsel could have assisted him in properly challenging, among other things, the
    district court’s application of the $10,000.00 cash bond posted by his mother to amounts owed
    by Roy, or the constitutionality of I.C. § 19-2908. 2      However, the district court correctly
    determined that there was “no basis for allowing [Roy] to withdraw his guilty plea,” and denied
    the motion. Again, Roy failed to show that his court-appointed counsel would not or could not
    assist with the motion to withdraw guilty plea. Accordingly, it was within the district court’s
    discretion to deny the motion for appointment of new counsel.
    III.
    CONCLUSION
    The district court did not abuse its discretion by denying the motion to appoint new
    counsel. Accordingly, we affirm the judgment of conviction and the opinion and order denying
    his motion to withdraw guilty plea and appoint new counsel.
    Judge GUTIERREZ and Judge HUSKEY CONCUR.
    2
    
    Idaho Code § 19-2908
     provides:
    When bail has been posted by cash deposit and remains on deposit at the
    time of the judgment, the clerk of the court shall, under the direction of the court,
    apply the money in satisfaction of fines, fees, costs and restitution imposed in the
    case and fines, fees, costs and restitution that have been imposed against the
    defendant in any other criminal action, and after satisfying the fines, fees, costs
    and restitution, shall refund the surplus, if any, to the person posting the cash
    deposit.
    5
    

Document Info

Filed Date: 12/31/2018

Precedential Status: Non-Precedential

Modified Date: 12/31/2018