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State v. Hunter4/19/2005
plea of guilty or no contest for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea. The defendant has the burden of proving a fair and just reason exists for the withdrawal of the plea. In evaluating whether a fair and just reason exists, we adopt the factors used by the federal courts. See Hickok, 907 F.2d at 985; Harrison, 303 F. Supp. 2d at 1244. The standard for post-sentencing plea withdrawals which is manifest injustice, remains unchanged.
With the standard for reviewing pre-sentence plea withdrawals clarified, we now turn to Defendant's argument that the district court erred in denying his motion to withdraw his no contest plea. Defendant raises several arguments in support of his motion to withdraw his plea. Defendant is not challenging the plea procedure itself under Rule 5-303(E) NMRA. As discussed in the previous section, Defendant contends that the Missouri court lacked jurisdiction, therefore the custody modification order upon which the custodial interference charges are based is invalid. Defendant also argues that his plea was entered upon the advice of ineffective counsel. Defendant asserts that his lawyer erroneously advised him that he had no defenses to the charges against him. Defendant also argues that his attorney advised him that if he entered a no contest plea, he would only get probation, and that entering the plea was the quickest way to get out of jail to be with his daughter who had recently been raped.
The district court, in denying Defendant's first motion to withdraw his plea, stated the following:
IT IF THE FINDING OF THE COURT that there is insufficient evidence to require the Court to set aside its prior finding that the plea was knowing, intelligent and voluntary and further that the tape of the plea hearing reflects that the Defendant clearly understood the advice by the Court that "once we finish this process here today, there won't be any changing your mind later as to your plea."
The district court denied Defendant's subsequent motions to withdraw his plea without a hearing. The language of the court's finding indicates that the court believed Defendant had to establish a manifest error to withdraw his plea. As we discussed, pre- sentence plea withdrawals may be granted upon the showing of a fair and just reason. Defendant does not necessarily need to establish that the plea was not knowing, intelligent, and voluntary or that he had ineffective assistance of counsel. Defendant only needs to establish a fair and just reason for the withdrawal, taking into account the seven criteria we have adopted.
We find the following facts in the record to be important in evaluating Defendant's request to withdraw his plea. Defendant entered a "straight-up" plea of no contest, meaning he received nothing from the State in return for his plea. Defendant's attorney testified that she did not discuss the possibility of a conditional plea with Defendant, which would have allowed the jurisdictional issue to be addressed and not waived by the entry of a plea. Defendant's attorney further testified that she did not believe Defendant had any valid defenses, and she advised him to contact a civil attorney to challenge the Missouri order. Over the course of the case, Defendant was represented by three different counsel. We also note that the crime of custodial interference requires intent. Section 30-4-4(B). If, as Defendant testified, he contacted a civil attorney and believed at all times he had a valid custody order granting him custody of the children, Defendant may have a complete factual defense to the charges. While we make no determination based on these li
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