Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. Randy J. Stoker, District Judge.
The opinion of the court was delivered by: Gratton, Chief Judge
2012 Unpublished Opinion No. 619
THIS IS AN UNPUBLISHED
OPINION AND SHALL NOT
BE CITED AS AUTHORITY
Order denying motion to withdraw guilty plea, affirmed.
Erick Nathan Gendron appeals from the district court's denial of his motion to withdraw his guilty plea, Idaho Criminal Rule 33(c). We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to a plea agreement, Gendron pled guilty to felony driving under the influence, Idaho Code §§ 18-8004, 18-8005(9). Before sentencing, Gendron moved to withdraw his guilty plea, asserting counsel that represented him at the time he entered his guilty plea failed to obtain and review the video recording of his breathalyzer test and, therefore, was unable to evaluate whether the test was administered in compliance with the required standards for breath testing. The district court denied the motion, finding that Gendron's guilty plea waived any claim that his attorney should have conducted additional discovery. The district court further found that no just reason existed for allowing Gendron to withdraw his guilty plea. Gendron timely appeals.
Gendron contends that the district court erred in denying his motion to withdraw his guilty plea. Gendron argues that his prior attorney's alleged failure to obtain a potentially exculpatory video provided a just reason to withdraw his guilty plea. In the district court, Gendron asserted that his counsel failed to obtain the videotape of the administration of the breathalyzer test and was therefore unable to evaluate whether the test was conducted in compliance with regulations prior to his guilty plea. On appeal, Gendron now asserts that just cause exists because he has lost the ability to review the video, presumably because, to the extent it ever existed, it is no longer available.*fn1 The State argues that the district court's denial of the motion was appropriate and that Gendron did not establish a just reason to withdraw his guilty plea.
Whether to grant a motion to withdraw a guilty plea lies in the discretion of the district court and such discretion should be liberally applied. State v. Freeman, 110 Idaho 117, 121, 714 P.2d 86, 90 (Ct. App. 1986). Appellate review of the denial of a motion to withdraw a plea is limited to determining whether the district court exercised sound judicial discretion as distinguished from arbitrary action. Id. The defendant bears the burden of proving, in the district court, that the plea should be withdrawn. State v. Hanslovan, 147 Idaho 530, 535, 211 P.3d 775, 780 (Ct. App. 2008). In ruling on a motion to withdraw a guilty plea, the district court must determine, as a threshold matter, whether the plea was entered knowingly, intelligently, and voluntarily. Id. at 536, 211 P.3d at 781. If the plea was voluntary, in the constitutional sense, then the court must determine whether other reasons exist to allow the defendant to withdraw the plea. Id. When the motion is made prior to sentencing, the defendant must present a just reason for withdrawing the plea. Id. at 535, 211 P.3d at 780. Where the defendant moves to withdraw his guilty plea before the imposition of sentence, "but after [he] has read the presentence report or received other information about his probable sentence, the court is to exercise broad discretion, but may temper its liberality by weighing the defendant's apparent motive." State v. Johnson, 120 Idaho 408, 411, 816 P.2d 364, 366 (Ct. App. 1991) (citation omitted).*fn2
The district court, upon reviewing the record of the change of plea hearing, concluded that Gendron entered his plea knowingly, voluntarily, and intelligently and, in so doing, specifically waived any claim that his attorney should have conducted additional discovery. In addition, the district court concluded that any failure of defense counsel to have obtained the video of the breath test before Gendron pled guilty did not constitute just reason for withdrawal of his plea because he failed to show that the video would have provided a defense or would otherwise have affected his decision to plead guilty.
Gendron testified under oath when he entered his plea that: (1) he understood the charges and potential consequences; (2) he was giving up his right to trial and to present evidence in his defense; (3) he had discussed the case ...