CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS. CAAP-13-0000059; FC-CR. NO. 11-1-0288(4).
Benjamin E. Lowenthal for petitioner.
Richard K. Minatoya for respondent.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
[135 Hawai'i 362] OPINION
The central issue is whether the family court erred in denying Defendant Eddie A. Garcia's Motion to Withdraw his Plea of No Contest before sentencing.
Garcia was charged with continuous sexual assault of a minor under the age of fourteen, and abuse of a family or household member. Garcia initially pleaded not guilty, but changed his plea pursuant to a plea agreement with the State of Hawai'i. Garcia agreed to plead no contest, and to serve twenty years of imprisonment for continuous sexual assault and one year for abuse, to run concurrently. In turn, the State agreed to remain silent at Garcia's minimum term hearing before the Hawai'i Paroling Authority (HPA). The family court accepted the plea agreement, found Garcia guilty as charged, ordered the preparation of a pre-sentence investigation (PSI) report, and scheduled Garcia's sentencing hearing.
The Deputy Prosecuting Attorney (Prosecutor) then submitted a letter and three exhibits to the probation office for inclusion in Garcia's PSI report. Prosecutor's letter commented on the significance of the exhibits and drew conclusions that included recommendations relevant to sentencing. For example, the letter described Garcia as a " master manipulator" who avoided responsibility for his " sexually predatory" actions, and contended that there should be " no factors" which would weigh against imprisonment and a " lengthy" list of factors supporting imprisonment. (Emphasis in original).
Before sentencing, Garcia moved to withdraw his no contest plea, arguing that Prosecutor's submission constituted a breach of the plea agreement and was a fair and just reason to withdraw his guilty plea because Prosecutor knew the letter and exhibits would be transmitted to the HPA. The parties eventually stipulated that the submission would have been forwarded to the HPA for its consideration at the minimum term hearing. However, the family court denied the motion to withdraw because Garcia filed his motion before sentencing, and therefore the PSI report containing Prosecutor's submission could be intercepted before it reached
[135 Hawai'i 363] the HPA. Although the family court denied Garcia's motion, it ordered that the PSI report be stricken from the record and kept under seal, ordered that a new PSI report be prepared by a probation officer other than the one who prepared the first report, and prohibited the State from communicating with the probation officer responsible for preparing the new PSI report.
Pursuant to Garcia's plea, the family court convicted Garcia of the two counts and sentenced him to twenty years of incarceration for continuous sexual assault and one year for abuse of a family or household member, to run concurrently. On appeal, the Intermediate Court of Appeals (ICA) concluded that the family court did not err in denying Garcia's motion to withdraw his no contest plea.
We conclude that Garcia's motion should have been granted. Prosecutor's submission of the letter and exhibits, despite the plea agreement, was a fair and just reason for Garcia's withdrawal of his plea, and the State had not relied upon the guilty plea to its substantial prejudice. Accordingly, we vacate the family court's Findings and Order and the judgment on appeal of the ICA, and remand the case to the family court for further proceedings consistent with this opinion.
A. Family Court Proceedings
On August 24, 2010, a Maui High School administrator contacted the Maui Police Department (MPD) because a fifteen-year-old student reported being sexually assaulted by her father. Later that day, after MPD detectives interviewed the student and her mother, MPD identified Garcia, the student's father, arrested him, took him into custody, and served him with a restraining order. Garcia confessed to hitting his daughter (Daughter) with plastic coat hangers on the backs of her legs, and later confessed in detail to sexually abusing Daughter on a regular basis since she was ten years old. Garcia confessed that he started engaging Daughter in sexual touching when she was ten years old, and started having sexual intercourse with her when she was around twelve years old. He confessed that at first he had sexual intercourse with her only once per week, but that the frequency increased over time to four to six times per week.
Garcia was charged with one count of Continuous Sexual Assault of a Minor Under the Age of Fourteen Years in violation of HRS § 707-733.6, and one count of Abuse of a Family or Household Member in violation of HRS § 709-906.
Garcia pleaded not guilty, but later entered a no contest plea pursuant to a plea agreement. Under the plea agreement, Garcia agreed to plead no contest, and to serve twenty years of imprisonment for continuous sexual assault and one year for abuse, to run concurrently. The State, in turn, agreed to " remain silent at the minimum term hearing [before the HPA]."
During the change-of-plea colloquy, the family court asked Garcia several questions to determine whether he understood the terms of the plea agreement. When the family court asked Garcia if he could speak, read, write, and understand English, and whether he understood the terms of the plea agreement, Garcia responded in the affirmative. Garcia also responded in the affirmative when the court asked if he understood that by entering his plea of no contest, he was giving up his constitutional rights to plead not guilty and have a jury trial. When the family court asked Garcia if he understood that he would receive a twenty-year sentence and thus was not eligible for probation, Garcia again responded in the affirmative.
[135 Hawai'i 364] The family court asked Garcia if he understood that Prosecutor agreed to " remain silent at the minimum term hearing[,]" to which Garcia responded in the affirmative; the family court did not ask Garcia to explain his interpretation of the meaning of Prosecutor's promise. The family court accepted Garcia's no contest plea, informed the parties that the court would sentence Garcia in accordance with the terms of the plea agreement, found Garcia guilty on both counts, ordered the preparation of a PSI report, and on June 1, 2012, scheduled Garcia's sentencing hearing for August 1, 2012.
In late June and early July of 2012, Garcia's family and friends submitted letters in support of Garcia to Adult Client Services (ACS) for inclusion in Garcia's PSI report. In a letter dated July 1, 2012, Daughter asked the court to consider lessening Garcia's sentence because her mother was struggling to take care of four children and needed Garcia's financial support.
On July 23, 2012, Prosecutor submitted a letter and three accompanying exhibits to ACS for inclusion in Garcia's PSI report. Prosecutor's letter explained that the State understood that Garcia's sentence was predetermined by the plea agreement, but nevertheless wanted " to point out some aggravating factors[.]"
Prosecutor's letter described the contents and commented on the significance of the three exhibits submitted to ACS along with the letter. The letter drew attention to Garcia's confession, which was attached as Exhibit 1, that Garcia began using Daughter as his sexual partner when she was ten years old and continued doing so " on an almost daily basis" until her friends reported the conduct when Daughter was fifteen. The letter pointed out that the types and frequency of sexual abuse recounted by Garcia in his confession matched Daughter's statements. The letter stated that even after Garcia confessed, he " took every available route to avoid having to take responsibility for his aberrant and sexually predatory actions." (Emphasis in original). The Prosecutor added that Garcia " pretended to be this caring parent who wanted to make it easy on his daughter and accept responsibility from the beginning with the police, but true to his real character, that did not last long." The letter continued by stating that Garcia " soon pulled the 'I don't speak English card,'" and requested an interpreter for trial even though the record, which included a letter written by Garcia in a prior case and which Prosecutor attached as Exhibit 2, demonstrated that Garcia had an " excellent level of command of English[.]" Prosecutor argued that Garcia " demonstrated that he is a master manipulator, who cannot be trusted." (Emphasis in original).
Prosecutor's letter further noted that a letter written by Daughter, which was attached as Exhibit 3, revealed that Garcia violated the August 24, 2010 restraining order when he asked his wife to ask Daughter to write him a letter about her feelings. Prosecutor stated that " [o]f course" this was a violation of the restraining order, but this violation was not charged, and this violation demonstrated that Garcia was " still manipulating everyone."
Prosecutor's letter concluded that the three exhibits revealed that Garcia caused his family, and especially Daughter, to experience severe hardships.
The letter asserted that " [g]iven the facts of this case, . . . Garcia should have a lengthy list of factors supporting imprisonment[,]" and " that there should be no factors listed to withholding imprisonment." (Emphasis in original).
On July 25, 2012, Garcia's defense counsel moved to withdraw as counsel, because Garcia asserted to the court that the defense counsel tricked him into changing his plea. At the hearing on the motion to withdraw, Garcia testified that he wanted a new attorney to help him file a motion to withdraw his no contest plea. Prosecutor opposed the defense counsel's motion to withdraw, arguing that Garcia's allegation that he was tricked was an attempt to manipulate the system. The family court granted the motion, but clarified that it was doing so only because it found that the relationship between Garcia and his public defender could not be repaired. The family court explained that a new attorney would be appointed to appear
[135 Hawai'i 365] at sentencing, but not to help Garcia file a motion to withdraw his plea because Garcia had already changed his plea and been found guilty.
On September 13, 2012, with the assistance of a new attorney (Dunn), Garcia filed a motion to withdraw his no contest plea on the grounds that: " (1) the State violated its plea agreement with [Garcia]; and (2) [Garcia's] No-Contest plea was not voluntarily made." Garcia explained in a declaration that Dunn informed him that Prosecutor breached the plea agreement by submitting a " scathing letter with attached exhibits" for inclusion in the PSI report, because Prosecutor knew that the submission would be transmitted to the HPA. He argued this constituted a fair and just reason for withdrawal and that the State had not relied upon his guilty plea to its substantial prejudice. Garcia also explained that he told his public defender that he did not want to enter into the plea agreement because he did not understand its terms, but entered into the agreement nonetheless because his public defender told him " that failure to change [his] plea as scheduled would be perceived as an insult to the Court[.]"
In opposition to Garcia's motion to withdraw his no contest plea, the State argued that Garcia did not meet his burden to show a fair and just reason for withdrawal of his plea, in pertinent part because Prosecutor's " letter complies with the plea agreement and does not make any recommendation for a minimum term to the [HPA]." The State also argued that if the court found that Prosecutor's letter did breach the plea agreement, " the remedy would be to strike the letter from the PSI [report] rather than allow the Defendant to withdraw his plea of no-contest." Finally, the ...