APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CRIMINAL NO. 07-1-0400)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Reifurth and Ginoza, JJ.)
Defendant-Appellant Andrew Keoni Kaoihana (Kaoihana) appeals from the Judgment of Conviction and Sentence filed on September 3, 2010, in the Circuit Court of the First Circuit (Circuit Court). *fn1 On July 9, 2008, Kaiohana waived his right to a trial, and pled guilty to one count of Burglary in the Second Degree in violation of Hawaii Revised Statutes (HRS) § 708-811 (1993) (Burglary) and one count of Attempted Theft in the First Degree in violation of HRS §§ 705-500 and 708-830.5 (1993 & Supp. 2010) (Attempted Theft). On September 18, 2009 Kaoihana moved to withdraw his guilty pleas. After a hearing, on January 28, 2010, the Circuit Court entered an order denying Kaoihana's motion to withdraw his plea. On September 3, 2010, the Circuit Court sentenced Kaoihana to five years imprisonment on the Burglary count and ten years imprisonment on the Attempted Theft count, with mandatory minimum sentences stemming from Kaoihana's repeat offender status.
On appeal, Kaoihana raises a single point of error, contending that the Circuit Court erred by not allowing him to withdraw his guilty pleas.*fn2
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Kaoihana's contention as follows:
As explained by defense counsel at the hearing on the motion to withdraw guilty pleas, Kaoihana changed his pleas to guilty so that he could enter into treatment at the Sand Island Treatment Center. However, after Kaoihana was later terminated from the program, he wanted to withdraw his pleas. Kaoihana argued below, as he argues on appeal, that the colloquy of the Circuit Court *fn3 was inadequate because "the Court failed to inform [him] that [he] had a right to persist in his pleading not guilty and proceed to trial no matter how strong the evidence was against him.' In addition, Kaoihana argues that the plea was not valid because the Circuit Court "should have discussed the elements of what constituted an attempted theft[.]" A defendant does not have an absolute right to withdraw a guilty plea. See, e.g., State v. Jim, 58 Haw. 574, 575, 574 P.2d 521, 522 (1978). In State v. Topasna, 94 Hawaii 444, 16 P.3d 849 (App. 2000), this court discussed the withdrawal of a guilty plea:
Accordingly, when the motion to withdraw guilty plea is made after sentence is imposed, the "manifest injustice" standard applies to the court's consideration of the motion. On the other hand, where . . . the motion is made before the court passes sentence, a more liberal approach is to be taken, and the motion should be granted if the defendant has presented a fair and just reason for his request and the prosecution has not relied upon the guilty plea to its substantial prejudice.
Where the record pertaining to the motion to withdraw guilty plea is complete, . . . the defendant has the burden of establishing plausible and legitimate grounds for the withdrawal.
The two fundamental bases for showing a "fair and just reason" for withdrawing a guilty plea are (1) that the defendant did not knowingly, intelligently and voluntarily waive the rights relinquished upon pleading guilty, or (2) that changed circumstances or new information justify withdrawal of the plea.
Where the first fundamental basis is concerned, . . . the defendant is entitled to withdraw the guilty plea if (1) the defendant has not entered the plea knowingly, intelligently, and voluntarily; (2) there has been no undue delay in moving to withdraw the plea; and (3) the prosecution has not otherwise met its burden of establishing that it relied on the plea to its substantial prejudice.
Generally, we review the trial court's denial of a motion to withdraw guilty plea for abuse of discretion.
. . . [If] our evaluation of the court's exercise of its discretion hinges solely upon the constitutional inquiry whether [the defendant] knowing[ly], intelligently and voluntarily entered his [or her] pleas of guilty[,] . . . the underlying and determining mode of review . . . is de novo, i.e., according to the right/wrong standard, based upon an examination of the entire record.
Id. at 451-52, 16 P.3d at 856-57 (internal quotation marks, citations, and original brackets ...