Review Denied Jan. 13, 2014.
Judgment granting post-conviction relief, affirmed.
Greg S. Silvey, Star, for appellant. Hon. Lawrence G. Wasden, Attorney General;
Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.
In this appeal from a judgment granting him post-conviction relief, Gregory Scott McAmis argues that although the district court properly determined that he was entitled to post-conviction relief, it erred in ordering resentencing as a remedy rather than permitting him to withdraw his guilty plea.
McAmis was charged with grand theft, felony, Idaho Code §§ 18-2403, 18-2407, and the State alleged that he was subject to a
persistent violator sentence enhancement, I.C. § 19-2514. The parties reached a plea agreement under which McAmis would plead guilty to grand theft. In exchange, the State agreed, inter alia, to dismiss the persistent violator enhancement and recommend a unified sentence of five years in prison with two years determinate, suspended in favor of probation. The State did not make that recommendation. Instead, the prosecutor recommended incarceration, consistent with a recommendation of the presentence investigator. McAmis's counsel did not object but instead commented that he " apparently ... misunderstood the nature of the plea discussions with the State." The trial court imposed a unified eleven-year sentence with five years determinate. This sentence is running concurrently with McAmis's sentence in another case.
McAmis took an appeal, and this Court affirmed his sentence and the district court's denial of a motion by McAmis for reduction of the sentence. State v. McAmis, Docket No. 35945, 2009 WL 9151136 (Ct.App. Sept.29, 2009) (unpublished). No claim of a breach of the plea agreement was raised on the direct appeal.
McAmis then filed a petition for post-conviction relief alleging that he was entitled to relief because the prosecutor breached the plea agreement and because his defense counsel was ineffective in not objecting to the breach. After conducting an evidentiary hearing, the district court determined that the State did breach the plea agreement and that McAmis was entitled to relief. That determination has not been challenged in this appeal.
At the evidentiary hearing, McAmis was repeatedly asked what remedy he was seeking. He responded in various ways, but ultimately asked to receive a specific sentence (a prison sentence of five years with credit for the five years he had served, followed by probation), and if the court could not guarantee that sentence, then he wanted to be permitted to withdraw his guilty plea. The district court informed McAmis that the available options were limited: the court would either permit McAmis to withdraw his guilty plea or order that he be resentenced in a proceeding where the State would be required to make the recommendation it had agreed to make. After the district court explained these options, McAmis stated that he wanted to withdraw his guilty plea. Likewise, McAmis's attorney requested that McAmis be allowed to withdraw the plea. The district court did not permit withdrawal of the guilty plea, but instead ordered specific performance of the plea bargain in a new sentencing proceeding.
McAmis appeals, arguing that the district court erred when it ordered specific performance instead of permitting withdrawal of his plea. He argues that the district court had discretion to order either remedy and abused that discretion because the trial court's analysis of the remedy issue was based on a single erroneous ...