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State v. Borero

Intermediate Court of Appeals of Hawai‘i

October 9, 2013

STATE of Hawai‘i, Plaintiff-Appellee,
v.
Alexander BORERO, III a.k.a. Alexander Borrero, III, Defendant-Appellant.

Editorial Note:

This decision has been designated as "Unpublished disposition." in the Pacific Reporter. See HI R RAP RULE 35

Appeal from the Circuit Court of the Third Circuit (Criminal No. 10-1-312).

Steven D. Strauss, Christopher P. Schlueter, (Law Offices of Steven D. Strauss), for Defendant-Appellant.

Michael S. Kagami, Deputy Prosecuting Attorney, County of Hawai‘i, for Plaintiff-Appellee.

NAKAMURA, C.J., FOLEY and GINOZA, JJ.

SUMMARY DISPOSITION ORDER

Defendant-Appellant Alexander Borero, III (Borero) appeals from the " Judgment of Conviction and Sentence" entered September 10, 2012 nunc pro tunc to September 6, 2012 in the Circuit Court of the Third Circuit [1] (circuit court).

At proceedings held May 2, 2011, Borero pled guilty to unauthorized control of propelled vehicle (count one), attempted assault in the first degree (count two), and negligent injury in the first degree (count three).

On appeal, Borero contends: (1) the circuit court abused its discretion when it denied " [Borero's] Motion to Withdraw Guilty Plea Entered May 2, 2011," (2) the circuit court abused its discretion when it denied " [Borero's] Motion For Reconsideration of the Findings of Fact, Conclusions of Law, and Order Denying [Borero's] Motion to Withdraw Guilty Plea" (motion to reconsider), and (3) that he was denied effective assistance of counsel.

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, as well as the relevant statutory and case law, we conclude Borero's appeal is without merit.

(1) The circuit court did not abuse its discretion when it denied " [Borero's] Motion to Withdraw Guilty Plea Entered May 2, 2011."

" Generally, we review the trial court's denial of a motion to withdraw guilty plea for abuse of discretion." State v. Topasna, 94 Hawai‘i 444, 452, 16 P.3d 849, 857 (App.2000). If our review of the court's discretion hinges on the constitutional inquiry whether the defendant knowingly, intelligently, and voluntarily entered his or her plea of guilty, we review de novo. Id.

" A defendant does not enjoy an absolute right to withdraw his or her guilty plea." Id. at 451, 16 P.3d at 856. Where the motion is made before sentencing, " 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." Id. at 451, 16 P.3d at 856.

There are two recognized bases for a " fair and just reason" to withdraw a guilty plea: (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." Id. at 452, 16 P.3d at 857. The defendant has the burden of establishing plausible and legitimate grounds for the withdrawal. Id. at 451, 16 P.3d at 856.

Borero contends he did not knowingly, intelligently, or voluntarily waive his right to trial because Borero's former counsel (former counsel): (1) was unaware of Borero's third-grade reading level and prior psychological history, (2) provided Borero with an incomplete " sentencing analysis," (3) did not provide Borero with copies of police photographs, and (4) devoted little time to Borero's case. However, the circuit court's plea colloquy and testimony of Borero's former counsel refute Borero's contention.

The circuit court fully apprised Borero of his rights as required by Hawai‘i Rules of Penal Procedure (HRPP) Rule 11(c), (d), and (f). Before accepting his plea, the circuit court ensured Borero understood how sentencing would work under the agreement:

THE COURT: [I]n exchange for your plea to the charges in the complaint superseding indictment and your agreement to pay applicable restitution in the amount to be determined at the time of sentencing the State has agreed to cap its request to a total of 20 years in prison as a mandatory minimum, uh, with a mandatory minimum sentence of three years and four months inclusive of the sentences you have already received in CR Number 5-1-103, Criminal Number 10-1-94K, Criminal Number 10-1-130, Criminal Number 10-1-263K.
I take it what I just read, [former counsel], means that they would, uh, the— whatever mandatory minimum sentence would be three years and four months concurrent?
[FORMER COUNSEL]: It would be total of three years and four months, Judge. So in other words Mr. Borero would serve— would receive a mandatory minimum of a total of three years and four months.
....
THE COURT:— it could be in the combination of zero mandatory minimum for the Class C's and three-four for the Class B?
[FORMER COUNSEL]: Correct.
....
THE COURT: All right. The exact division of sentences and determination of which counts in criminal numbers shall run concurrently or consecutively to be determined by [Borero] and communicated to the Adult Probation Department by or before the deadline for [Borero's] input. State would not ask for extended terms of incarceration.
Okay. That's the extent of your understanding of your plea agreement with the ...

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