State v. Guity.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
06-JUN-2019
07:57 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
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________________________________________________________________
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
WALTER GUITY,
Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 11-1-0288 and FC-CR. NO. 10-1-0022)
June 6, 2019
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY WILSON, J.
After having entered a plea agreement, but prior to
sentencing, Petitioner/Defendant-Appellant Walter Guity
(“Guity”), representing himself, orally moved in the Circuit
Court of the First Circuit (“circuit court”) to withdraw guilty
pleas in his global plea agreement to two criminal offenses—one
charged in the family district court (“family court case”) that
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was legally impossible for him to have committed under the law
in effect at the time of his plea. The second offense was
charged in the circuit court (“circuit court case”). At the
conclusion of the hearing, the circuit court denied Guity’s oral
motion to withdraw pleas in both cases and entered a sentence
pursuant to the plea agreement.
Because both of Guity’s pleas were encompassed in a
global plea agreement, and the Intermediate Court of Appeals
(“ICA”) correctly concluded that Guity was entitled to withdraw
his plea in the family court case, the ICA should have also held
that Guity was permitted to withdraw his plea in the circuit
court case. Accordingly, we vacate the ICA’s judgment on
appeal, the circuit court’s judgments, and the circuit court’s
order denying Guity’s motion to withdraw pleas and remand to the
circuit court with instructions to accept Guity’s withdrawal of
both pleas.
I. Background
In May 2010, Guity was charged in the family court
with multiple counts relating to an incident with his wife,
including attempted first-degree sexual assault. In March 2011,
while awaiting trial in the family court case, Guity was charged
in the circuit court with multiple counts of second-degree and
fourth-degree sexual assault in an incident involving another
woman.
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In May 2011, Guity entered a plea agreement in the
circuit court encompassing both cases. In that agreement, he
pleaded guilty to the reduced charge of third-degree sexual
assault in the family court case, and pleaded guilty to second-
degree sexual assault in the circuit court case. In return, the
State agreed to dismiss the remaining counts in both cases.
At the time of the plea agreement, it was legally
impossible for Guity to have committed the crime to which he had
pleaded guilty in the family court case relating to his wife.
Hawaiʻi Revised Statutes (“HRS”) § 707-732(1)(f) (2014) (defining
sexual assault in the third degree as “knowingly, by strong
compulsion,” having “sexual contact with another person”); HRS §
707-700 (2014) (defining “sexual contact” as “any touching,
other than acts of ‘sexual penetration’, of the sexual or other
intimate parts of a person not married to the actor” (emphasis
added)).1 As the transcript of the change of plea hearing makes
clear, the State, Guity, and the court accepting his plea were
all aware at the time of his plea that third-degree sexual
assault excluded an offense involving a spouse.2
1
The legislature replaced the phrase “of a person not married to
the actor” with “another” in the definition of “sexual contact” in 2016.
2016 Haw. Sess. Laws Act 231, § 32 at 753.
2
During the hearing, the court said, “sexual assault in the third
degree is actually defined by the Legislature to exclude sexual contact,
under this statute, with someone you’re married to. But in accordance with
the plea bargain you have agreed to plead to this offense. Is that -- you
(continued . . .)
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A. Circuit Court Proceedings
Guity was represented by private counsel during his
plea negotiations and at his change of plea hearing. He
subsequently became dissatisfied with his attorney, who
withdrew. Guity was appointed a deputy public defender; he,
too, subsequently withdrew from representing Guity. On December
10, 2011, Guity notified the circuit court he wanted to
represent himself.
On January 17, 2012, the circuit court held a hearing
in which it inquired into Guity’s desire to represent himself on
a motion to withdraw his guilty pleas.3 Guity’s explanation of
his motives and readiness to represent himself was ambiguous.
For example, at the very end of the hearing, the circuit court
asked, “I take it that you’re making a voluntary, knowing, and
intelligent decision that you do not want [court-appointed
counsel] to actually handle this, or you do not want to exercise
your right to a lawyer and you want do it yourself.” In
response to that question, Guity stated, “I need a lawyer, your
Honor.” The circuit court responded, “[l]ook, I’m not going to
(. . . continued)
understand all of that?” Guity responded, “[y]es, Your Honor.” The court
then asked, “[a]re you giving up your right to be excluded from that statute
by legislative language?” Guity responded, “[y]es, Your Honor.” The court
then asked, “[d]o you have any questions about that?” Guity responded,
“[n]o, Your Honor.”
3
The Honorable Karen S.S. Ahn presided.
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play games, Mr. Guity.” Nonetheless, the court agreed to allow
him to represent himself with the assistance of stand-by
appointed counsel. Yet the court’s permission for Guity to
represent himself was itself ambiguous, since the court closed
the hearing by saying, “[i]f time is your problem, I’m denying
your motion. Let’s proceed.”4
Three days later, on January 20, 2012, the circuit
court heard Guity’s oral motion to withdraw his guilty pleas.
He argued the motion pro se, with court-appointed counsel
operating as stand-by counsel. Guity argued, inter alia, that
during the plea negotiations (and at the change of plea hearing)
his private attorney had failed to explain to him the nature of
the law, including the fact that he was pleading guilty to a
crime he could not legally commit in the family court case. The
circuit court denied Guity’s motion to withdraw his guilty
pleas. The court later sentenced him to a one-year term of
imprisonment for the family court case, an eighteen-month term
of imprisonment for the circuit court case, and concurrent five-
year terms of probation for each count pursuant to the plea
agreement.
4
Although the court said at the end of the hearing, “I’m denying
your motion[,]” the court probably meant that it was granting Guity’s motion
to proceed pro se in his oral motion to withdraw pleas, but denying Guity’s
appointed counsel’s motion to withdraw from representing Guity. That left
Guity’s appointed counsel in the position of “stand-by counsel” for purposes
of Guity’s motion to withdraw pleas.
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B. The ICA’s Memorandum Opinion
The ICA’s opinion first discussed Guity’s challenge to
the factual basis of the pleas to the charge in the family court
case. The ICA held that the circuit court had “clearly violated
[Hawaiʻi Rules of Penal Procedure (“HRPP”)] Rule 11(g)” because
it knew “there was no factual basis” for that plea, and it
“affirmatively knew that it was legally impossible for Guity to
have committed this offense.” State v. Guity, No. CAAP-12-
0000287, 2016 WL 6427681, at *7 (App. Oct. 31, 2016) (mem.).
Given that the plea in the family court case violated HRPP Rule
11(g), the ICA concluded that the circuit court “should not have
accepted his guilty plea to this offense.” Id. The ICA next
addressed the State’s argument that Guity had waived the defect
in his guilty plea in the family court case. The ICA observed
that allowing a defendant to plead guilty to a crime he could
not legally commit “implicates the integrity of the judicial
system.” Id. at *8. The court concluded that allowing such a
plea “would be contrary to the truth-seeking function of the
criminal justice system and would serve to undermine the
integrity of the system and public confidence in the system.”
Id. For that reason, “Guity’s challenge to his guilty plea
could not be barred by waiver.” Id.
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The ICA also concluded that the circuit court erred in
allowing Guity to represent himself at the motion to withdraw
his guilty pleas because the circuit court had failed to first
obtain a valid waiver of his right to counsel. Id. “Because
Guity did not validly waive his right to counsel prior to the
hearing, the results of the hearing were tainted and the Circuit
Court’s rulings cannot stand.” Id. at *10.
The ICA vacated the judgment in the circuit court case
and vacated, as well, the judgment in the case involving Guity’s
plea in the family court case. Id. at *10. The ICA found that
Guity’s plea in the latter, to a crime he could not legally have
committed, could never form part of a valid plea agreement. Id.
at *8. Accordingly, the ICA remanded to the circuit court with
instructions to permit Guity to withdraw that plea. Id. at *10.
In contrast, the ICA found that Guity’s plea in the circuit
court case was an otherwise valid plea tainted only by the fact
that the record did “not reflect a valid waiver of counsel” at
the time he appeared pro se to argue his motion to withdraw
guilty pleas. Id. at *8.
Thus, with respect to Guity’s plea to a legally
impossible crime, the ICA remanded to the circuit court with
instructions to permit Guity to withdraw that plea. Id. at *10.
But with respect to Guity’s plea in the circuit court case, the
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ICA remanded to the circuit court with instructions to allow the
State to exercise one of two options. Id.
The first option allowed the State to enforce the
remainder of the plea agreement involving the circuit court
case. Id. If the State elected that first option, Guity would
be entitled to a new hearing on his motion to withdraw the
remaining guilty plea. Id. If his motion to withdraw plea in
the new hearing was granted, Guity would be able to withdraw the
plea. If, however, his motion in the new hearing was denied,
Guity would be held to his plea in the circuit court case. The
second option would allow the State to withdraw from the plea
agreement altogether and pursue all the original charges in both
cases. Id.
While it is not entirely clear, the ICA appeared to
base its articulation of those two options on remand concerning
the plea in the circuit court case upon the premise that “the
State did not breach the plea agreement” and therefore as the
non-breaching party it “retains” those two options. Id. The
ICA provided no explanation, and no citation to any legal
authority, justifying or explaining its adoption of those two
options.
II. Standard of Review
A trial court’s denial of a motion to withdraw a plea
made prior to sentencing is reviewed for abuse of discretion.
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State v. Garcia, 135 Hawaiʻi 361, 368, 351 P.3d 588, 595 (2015).
A court abuses its discretion when, among other things, it “has
disregarded rules or principles of law or practice to the
substantial detriment of a party litigant.” Id. (quoting State
v. Merino, 81 Hawaiʻi 198, 211, 915 P.2d 672, 685 (1996)).
III. Discussion
The ICA vacated both convictions arising from Guity’s
guilty pleas. First, the ICA vacated the judgment in the family
court case based on Guity’s plea to a crime he could not have
legally committed. Guity, 2016 WL 6427681, at *10. Second,
with respect to his plea in the circuit court case, the ICA
concluded that Guity had not adequately waived his right to
counsel before proceeding to argue unsuccessfully his pro se
motion to withdraw pleas. Id. at *8-*10.
Guity challenges the ICA’s failure to direct the
circuit court to grant his motion to withdraw his plea in the
circuit court case. Instead, the ICA’s remand instructions
require the circuit court to rehear the motion to withdraw the
plea, leaving the possibility open that the circuit court could
deny Guity’s motion to withdraw the remaining plea. Id. at *10.
In that event, the State would retain the option of holding him
to his plea on the remaining charge or withdrawing from the
agreement.
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We conclude that the circuit court abused its
discretion in denying Guity’s motion to withdraw his plea in the
circuit court case. When a motion to withdraw a plea is made
prior to sentencing, “a more liberal approach is to be taken,
and the motion should be granted if [1] the defendant has
presented a fair and just reason for his request and [2] the
State has not relied upon the guilty plea to its substantial
prejudice.” Garcia, 135 Hawaiʻi at 368, 351 P.3d at 595
(emphasis added) (quoting State v. Jim, 58 Haw. 574, 576, 574
P.2d 521, 523 (1978)); see also State v. Sanney, 141 Hawaiʻi 14,
22, 404 P.3d 280, 288 (2017) (“After entry of a plea of guilty
or nolo contendere and before sentence, the court should allow
the defendant to withdraw the plea for any fair and just
reason.” (emphasis added) (quoting Standard 14-2.1. Plea
Withdrawal and Specific Performance, ABA Standards for Criminal
Justice (3d ed. 1999))).
In its written “Order Denying Oral Motion to Withdraw
Guilty Plea,” the circuit court found no fair and just reason to
permit Guity to withdraw his pleas in both cases:
Based upon the credible evidence, and all reasonable
inferences to be drawn therefrom, the Court finds that no
fair and just reason has been shown to permit Defendant to
withdraw his guilty pleas in the two cases. The Court
confirms that Defendant voluntarily, intelligently, and
knowingly entered his pleas of guilty on May 18, 2011.
In response to Guity’s challenge to the circuit court’s finding,
the State conceded in its briefing before the ICA that, because
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it could not show substantial prejudice, the only remaining
question before the ICA was the “fair and just reason”
requirement, which the State characterized as the question
“whether the Defendant entered the plea knowingly,
intelligently, and voluntarily.”
Both the circuit court in its order, and the State in
its briefing, appear to confuse a “fair and just reason” for
withdrawing a plea with whether a defendant attempting to
withdraw a plea validly waived or relinquished his or her
constitutional right to trial (or other right) when entering the
plea. It is true that the failure of a defendant to enter a
guilty plea knowingly, intelligently, and voluntarily will
amount to a “fair and just reason” to withdraw the plea. See
State v. Krstoth, 138 Hawaiʻi 268, 276, 378 P.3d 984, 992 (2016)
(“In this case, the record does not establish that Krstoth
knowingly, intelligently and voluntarily waived his rights by
changing his plea, as required by law. Therefore, ‘fair and
just reasons’ existed for granting a withdrawal of his plea.”).
It does not follow, however, that the only permissible “fair and
just reason” to withdraw a plea is the defendant’s failure to
enter the plea knowingly, intelligently, and voluntarily.
The State’s argument would convert the well-settled
“more liberal approach” applicable to motions to withdraw pleas
prior to sentencing into a more restrictive and demanding
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standard. See Jim, 58 Haw. at 575-76, 574 P.2d at 522-23
(contrasting the “manifest injustice” standard for withdrawing a
plea subsequent to sentencing with “a more liberal approach” to
plea withdrawals prior to sentencing). Under Jim, where the
State has not relied upon the guilty plea to its substantial
prejudice, “the motion should be granted if the defendant has
presented a fair and just reason for his request[.]” Id. at
576, 574 P.2d at 523; see also State v. Costa, 64 Haw. 564, 565,
644 P.2d 1329, 1331 (1982) (noting that a defendant attempting
to withdraw a plea prior to sentencing “has the burden of
establishing plausible and legitimate grounds for the
withdrawal”); HRPP Rule 32(d) (providing that a motion to
withdraw a plea made within ten days of imposition of sentence
may be made “to correct manifest injustice”).
This difference between the “fair and just” standard
(applied to a motion to withdraw a plea made before sentencing)
and the “manifest injustice” standard (applied when the motion
is made after sentencing) is based on sound policy. When a
motion to withdraw a plea has been made prior to sentencing, as
opposed to after sentencing, there is no “opportunity for the
defendant to test the severity of sentence before finally
committing himself to a guilty plea.” Jim, 58 Haw. at 576, 574
P.2d at 523 (quoting Sherman v. United States, 383 F.2d 837, 840
(9th Cir. 1967)). In other words, in a motion to withdraw a
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plea made prior to sentencing, the defendant cannot obtain a
sentence and then move to withdraw the plea if he or she deems
that sentence too severe. The effect of allowing a defendant to
withdraw his or her plea prior to sentencing for any fair and
just reason is to allow the defendant to pursue his or her
constitutional right to trial on the original charges.
Here, Guity knew as he was entering his plea that he
was pleading to a crime it was impossible for him to have
committed. Guity maintains that he was entitled to withdraw his
plea in the family court case because “it was legally impossible
for him to have committed third-degree sexual assault of his
wife[.]” Hence, he asserts:
[Because] the plea in the Family Court Case and the plea in
the Circuit Court Case cannot be viewed separately or in
isolation of one another as they were part of a global plea
agreement . . . which was not divisible . . . his pleas
should be withdrawn in both the Family Court Case and the
Circuit Court Case.
Guity aptly observes that this court has yet to
consider whether a defendant’s withdrawal of one plea entered
pursuant to a single plea agreement that encompasses multiple
charges and/or criminal matters necessarily permits him or her
to withdraw all of the other pleas that were part of the same
agreement. As noted, in so doing we consider whether Guity has
established a fair and just reason for his request to withdraw
his plea in the circuit court case. In Garcia, the failure of
the government to comply with the terms of a plea agreement was
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deemed a fair and just reason for the defendant to withdraw his
guilty plea prior to sentencing. By analogy, in the instant
case, the plea agreement was legally unenforceable through no
fault of the defendant, thus demonstrating a fair and just
reason for the withdrawal. The objective facts surrounding
Guity’s plea agreement adequately indicate that the agreement
was meant to be a single agreement. In this case, the pleas in
the circuit court case and the family court case were negotiated
contemporaneously. The final plea agreement, which contained
all of the terms and conditions relating to Guity’s guilty pleas
in both cases, was contained in one document.5 Guity entered,
and the circuit court accepted, both of his pleas at the same
change of plea hearing. Further, at the change of plea hearing,
the circuit court conducted most of the colloquy required under
HRPP Rule 11 with respect to both of Guity’s guilty pleas at the
same time. On this record, the plea agreement in this case was
clearly a global plea agreement.
The ICA held correctly that Guity was entitled to
withdraw his guilty plea in the family court case because “the
Circuit Court definitively knew that it was legally impossible
for Guity to have committed third-degree sexual assault of his
5
Containment of the terms and conditions of both pleas in one
document is a factor but not a requirement for determination of a global plea
agreement.
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wife[.]” Guity, 2016 WL 6427681 at *7. As explained above, the
record in this case supports that Guity’s guilty plea in the
family court case was a component of a single agreement that
included his plea in the circuit court case. Therefore, because
Guity was entitled to withdraw his plea in the family court
case, he was also entitled to withdraw his plea in the circuit
court case.
As noted by Guity, the Supreme Court of Washington
applied a similar analysis to analogous circumstances in State
v. Turley, 69 P.3d 338 (Wash. 2003). In Turley, the defendant
pleaded guilty to one count of escape in the first-degree
(“escape count”) and one count of conspiracy to manufacture
methamphetamine (“conspiracy count”) pursuant to a plea
agreement. 69 P.3d at 340. At the plea hearing, the government
erroneously represented that mandatory community placement was
not required as part of the sentence on the conspiracy count.
Id. The trial court accepted the defendant’s pleas, and
sentenced him to seventy-two months of imprisonment for the
escape count and twelve months of imprisonment for the
conspiracy count, which were to run concurrently with one
another. Id.
Nearly three years after the defendant entered his
plea, the government learned that the conspiracy count carried a
mandatory sentence of twelve months of community placement, and
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filed a motion to amend the judgment and sentence to include
this term. Id. Subsequently, the defendant moved to withdraw
both of his pleas. Id. The defendant argued that he was
entitled to withdraw his plea to the conspiracy count because he
was misinformed about the sentence he could receive on that
offense. Id. Accordingly, the defendant asserted that because
the plea agreement covered both the escape count and the
conspiracy count, he was also entitled to withdraw his plea with
respect to the escape count. Id. The trial court allowed the
defendant to withdraw his guilty plea as to the conspiracy
count, but not the escape count. Id. The Washington Court of
Appeals affirmed. Id.
The Supreme Court of Washington reversed the Court of
Appeals. Id. The Turley court highlighted that the defendant
negotiated and pleaded to the two charges contemporaneously,
that one document contained the plea to and conditions for both
charges, that the trial court accepted both pleas at one
hearing, and that at the hearing, the trial court advised the
defendant of the consequences of his plea, but did not separate
the consequences based upon the individual charges. Id. at 341-
42. Consequently, the Supreme Court of Washington concluded
that because the plea agreement was “one bargain, or . . . a
‘package deal[,]’” and the defendant was entitled to withdraw
his plea to the conspiracy count, the defendant should have also
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been allowed to withdraw his plea to the escape count. Id. The
Turley court thus remanded the case to the trial court with
instructions to allow the defendant to withdraw his pleas to
both counts. Id.
The Supreme Court of Washington’s analysis in Turley
is persuasive; we conclude that the plea agreement in this case
was a “package deal.” Because the ICA correctly held that Guity
was entitled to withdraw his guilty plea in the family court
case, the ICA should have also concluded that Guity was entitled
to withdraw his guilty plea in the circuit court case.
To conclude, on the facts in this case, the ICA erred
insofar as it held that Guity is not entitled to withdraw his
guilty plea in the circuit court case. Rather, the circuit
court should have allowed Guity to withdraw both of his pleas.
IV. Conclusion
For the reasons stated above, we hold the circuit
court abused its discretion in denying Guity’s motion to
withdraw both pleas. We vacate the ICA’s November 21, 2016
judgment on appeal, the circuit court’s March 5, 2012 judgment
in the circuit court case, the circuit court’s March 8, 2012
amended judgment in the family court case, and the circuit
court’s January 20, 2012 order denying Guity’s motion to
withdraw pleas. We remand to the circuit court with
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instructions to accept Guity’s withdrawal of both pleas and for
further proceedings consistent with this opinion.
Shawn A. Luiz /s/ Mark E. Recktenwald
(Brian A. Costa
on the briefs /s/ Paula A. Nakayama
and application)
for Petitioner /s/ Sabrina S. McKenna
Stephen K. Tsushima /s/ Richard W. Pollack
for Respondent
/s/ Michael D. Wilson
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