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State of Idaho v. Kerry S. Thomas

March 6, 2013

STATE OF IDAHO, PLAINTIFF-RESPONDENT,
v.
KERRY S. THOMAS,
DEFENDANT-APPELLANT.



Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael E. Wetherell, District Judge.

The opinion of the court was delivered by: Lansing, Judge

2013 Opinion No. 16 Stephen W. Kenyon, Clerk

Order denying motion to withdraw guilty plea, affirmed.

Kerry S. Thomas appeals from the denial of his motion to withdraw his guilty plea. He asserts that he should have been permitted to withdraw his plea because before pleading guilty he was incorrectly advised of the maximum sentence he could receive.

I.

BACKGROUND

This is Thomas's second appeal from the denial of his motion to withdraw his guilty plea. The background for this case was set forth in State v. Thomas, Docket No. 36947 (Ct. App. Mar. 3, 2011) (unpublished), as follows:

Thomas was arrested and charged with seven counts of transfer of body fluid which may contain HIV, Idaho Code § 39-608. At the time, Thomas was on parole for a 1997 conviction of this same crime, and when the allegations in this case were revealed, his parole was revoked and he was ordered to serve the remainder of his sentence. The state agreed that it would drop five of the alleged counts in return for Thomas pleading guilty to two counts. There was no agreement on sentencing. During the plea colloquy, the court stated: Mr. Thomas, it is my understanding that you are going to be pleading guilty this morning to two counts of intentionally transferring the HIV virus and that you understand that each of those could expose you to a sentence of up to 15 years in prison and a fine up to $5,000, or both; and that because sentences can be imposed consecutively in Idaho, you are at risk for imprisonment for up to 30 years, fines of up to $10,000, or both, and restitution should that be appropriate to any victim in this case. Is that correct?

(Emphasis added.) Thomas answered that he understood. The court continued with the plea colloquy and accepted Thomas's plea. At sentencing, the court imposed a unified sentence of fifteen years with ten years determinate for each of the two counts to be served consecutively. The sentence was also ordered to run consecutive to the remainder of the current sentence--approximately three (3) years--Thomas was serving on the 1997 conviction.

Thomas filed an Idaho Criminal Rule 33(c) motion to withdraw his guilty plea and requested a hearing on the matter. The court denied defendant's request for hearing, without prejudice, but granted him leave to file a supporting brief, detailing the factual and legal basis for his motion. In the event Thomas could make a prima facie showing of manifest injustice, the court stated it would then grant a hearing on the motion. Six months later, Thomas filed a "renewed motion" with supporting memorandum to withdraw his guilty plea on the grounds he was not advised that he could receive a consecutive sentence. By memorandum decision and order, the court summarily denied Thomas's motion because it found that Thomas was specifically advised that consecutive sentences could be imposed. Thomas appeal[ed].

In Thomas's first appeal, this Court held that while it was clear Thomas had been advised that the sentences for the counts to which he pleaded guilty in 2009 could be imposed consecutively, it was not clear whether he had been advised that these new sentences could be made consecutive to the sentence he was already serving for his 1997 conviction. Id. Therefore, we remanded with instructions to hold a hearing on Thomas's motion to withdraw his plea. Id.

On remand, the State conceded that Thomas had not been warned that the court could order that the sentences on the new counts be served consecutively to the remaining portion of the sentence from his 1997 conviction. However, the State suggested that the error could be remedied by modifying Thomas's sentence. Following a hearing, the district court followed the State's suggestion and modified Thomas's sentences in this case by ordering that they be served consecutively to each other but concurrently with the remaining portion of any sentence he was already serving. The court then denied Thomas's motion to withdraw his guilty plea, reasoning that even if Thomas had been improperly advised as to the maximum potential sentence, any possible prejudice was eliminated by the sentence modification. Thomas appeals.

II.

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