Opinion
NO. CAAP-16-0000027
03-29-2017
STATE of Hawai‘i, Plaintiff-Appellee, v. Eric DOTTERER, Defendant-Appellant.
On the briefs: Charles M. Cryan, Deputy Public Defender, for Defendant-Appellant. Artemio C. Baxa, Special Deputy Prosecuting Attorney, County of Maui, for Plaintiff-Appellee.
On the briefs:
Charles M. Cryan, Deputy Public Defender, for Defendant-Appellant.
Artemio C. Baxa, Special Deputy Prosecuting Attorney, County of Maui, for Plaintiff-Appellee.
(By: Nakamura, Chief Judge, and Ginoza, J., with Fujise, J., dissenting)
Defendant-Appellant Eric Dotterer (Dotterer) appeals from the Judgment entered by the District Court of the Second Circuit (District Court) on December 17, 2015. On appeal, Dotterer argues that the District Court erred in denying his motion to withdraw his no contest plea. We agree with Dotterer, vacate the Judgment, and remand for further proceedings.
The Honorable Blaine J. Kobayashi presided over Dotterer's entry of his no contest plea and ruled on his motion to withdraw his no contest plea.
I.
On September 27, 2015, Dotterer was arrested for driving under the influence of an intoxicant (OVUII). Plaintiff-Appellee State of Hawai‘i (State) filed a complaint charging Dotterer with OVUII, in violation of Hawai‘i Revised Statutes (HRS) § 291E-61(a)(1) and/or HRS § 291E-61(a)(4) (Supp. 2016). On the day after his arrest, Dotterer appeared in District Court and entered a plea of no contest to the OVUII charge.
HRS § 291E-61(a) provides in relevant part:
(a) A person commits the offense of operating a vehicle under the influence of an intoxicant if the person operates or assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an amount sufficient to impair the person's normal mental faculties or ability to care for the person and guard against casualty; [or]
...
(4) With .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of blood.
On November 5, 2015, prior to sentencing, Dotterer orally moved to withdraw his no contest plea because the defense "just got discovery yesterday." The District Court continued the case to permit Dotterer to file a written motion. In support of Dotterer's written motion, Dotterer's counsel filed a declaration which asserted that discovery materials not available to Dotterer when he pleaded no contest revealed, among other things, that Dotterer was arrested after colliding with a horse in the middle of Hana Highway; that it was dark and raining very heavily; that as a result of the collision, Dotterer was "seriously injured," complained of pain to his legs and arms, and believed he may have swallowed glass from his shattered windshield and that glass shards may have contacted his eyes; and that field sobriety tests were administered to him while he had a bleeding eye, had "glass [s]hards in his insides," and was recovering from a traumatic collision with a horse. Defense counsel's declaration stated that the discovery materials also revealed that an analysis of Dotterer's blood draw showed that his blood alcohol content was 0.070 grams per 100 milliliters of blood—below the legal limit. Defense counsel noted that Dotterer's no contest plea was taken directly following the traumatic accident in which he was injured and while he remained in custody, and defense counsel asked the District Court "to consider the exceptional circumstances in the events leading up to [Dotterer] entering the ‘no contest’ plea, as a basis for allowing the withdrawal of his plea."
The Honorable Douglas J. Sameshima presided over the November 5, 2015, hearing.
II.
A defendant who seeks to withdraw a plea of no contest after sentence is imposed must make a showing of "manifest necessity" in order to obtain relief. State v. Nguyen , 81 Hawai‘i 279, 286, 916 P.2d 689, 697 (1996). However, if (as in this case) the defendant moves to withdraw the plea before sentencing, a more liberal standard applies. The court should grant a motion to withdraw a no contest or guilty plea before sentencing if the defendant can show: (1) a fair and just reason for the request; and (2) the prosecution has not relied upon the plea to its substantial prejudice. Id.
There are two fundamental bases for showing a "fair and just reason" for withdrawing a plea: (1) the defendant's plea was not entered knowingly, intelligently, or voluntarily; or (2) changed circumstances or new information justify withdrawal of the plea. State v. Gomes , 79 Hawai‘i 32, 37, 897 P.2d 959, 964 (1995). With respect to the second basis,
a defendant is entitled to withdraw his or her nolo contendere plea before imposition of sentence where: (1) the defendant has never expressly admitted guilt; (2) the defendant advances a claim of new information or changed circumstances with factual support that, if believed by a reasonable juror, would exculpate the defendant; (3) there has been no undue delay in moving to withdraw the plea; and (4) the prosecution has not otherwise met its burden of establishing that it relied on the plea to its substantial prejudice.
Id. at 39, 897 P.2d at 966.
III.
Here, it is undisputed that after pleading no contest, Dotterer and his counsel received new information regarding his blood analysis that showed that Dotterer's blood alcohol content was below the legal limit. This evidence provided a complete defense to the HRS § 291E-61(a)(4) portion of the OVUII charge and also provided evidence of an exculpatory nature with respect to the HRS § 291E-61(a)(1) portion of the charge. This evidence, if available, would have been material and significant to Dotterer's decision regarding whether to enter a no contest plea. The post-plea discovery relating to the injuries sustained by Dotterer and his complaints to the arresting officer also provided evidence that could have served to support a defense to the HRS § 291E-61(a)(1) portion of the charge. The State does not contend on appeal that it would have been substantially prejudiced if the District Court had permitted Dotterer to withdraw his plea. In addition, Dotterer did not expressly admit guilt, and he expeditiously moved to withdraw his no contest plea after receiving the post-plea discovery material. Under these circumstances, we conclude that Dotterer presented fair and just reasons for the withdrawal of his no contest plea and that the District Court abused its discretion in denying Dotterer's motion to withdraw the plea.
We disagree with the State's contention that Dotterer waived his claim that the new exculpatory evidence in the post-plea discovery justified the withdrawal of his plea. Although Dotterer's primary argument was that his plea was not entered knowingly, intelligently, or voluntarily, the pleadings filed in connection with Dotterer's motion to withdraw his plea provided the District Court with sufficient notice that Dotterer was also relying on his receipt of the new discovery information. Indeed, the District Court noted that based on its review of Dotterer's motion, "one of the main reasons" why Dotterer wanted to withdraw his plea was the information received by his counsel after he entered his plea.
IV.
Based on the foregoing, we vacate the District Court's Judgment, and we remand the case for further proceedings consistent with this Summary Disposition Order.
DISSENTING OPINION BY FUJISE, J.
We review the trial court's denial of a pre-sentence motion to withdraw a plea for an abuse of discretion. State v. Gomes , 79 Hawai‘i 32, 36, 897 P.2d 959, 963 (1995). An abuse occurs when the court "has clearly exceeded the bounds of reason or has disregarded rules or principles of law or practice to the substantial detriment of a party litigant." State v. Merino , 81 Hawai‘i 198, 211, 915 P.2d 672, 685 (1996) (citation and internal quotation marks omitted). A pre-sentence motion to withdraw a plea may be granted if the defendant can show a "fair and just reason," either that the plea was not entered knowingly, intelligently or voluntarily, of that changed circumstances or newly discovered evidence, warrants the withdrawal. Gomes , 79 Hawai‘i at 37, 897 P.2d at 964. Because I disagree that the denial of Defendant-Appellant Eric Dotterer's (Dotterer) motion to withdraw his plea, based on the post-plea disclosure of the results of a blood draw taken when Dotterer was arrested for Driving Under the Influence of an Intoxicant was an abuse of discretion, I respectfully dissent.
Hawai‘i Revised Statutes (HRS) § 291E-61(a) (Supp. 2016) provides, in pertinent part,
(a) A person commits the offense of operating a vehicle under the influence of an intoxicant if the person operates or assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an amount sufficient to impair the person's normal mental faculties or ability to care for the person and guard against casualty;
....
(4) With .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of blood.
Dotterer argues that the blood test result, delivered to him in discovery months after his plea and revealing that his blood-alcohol content (BAC) was .07 and thus under the legal limit, qualified as newly discovered evidence for the purposes of withdrawing his plea. However, that blood test could not have been conducted without Dotterer's knowledge, and Dotterer does not contest that the blood was drawn on the date of his arrest. Therefore, Dotterer knew that a test documenting his BAC existed, although he did not know what the test result was, at the time of his plea. It is the test result, not the fact of the test, that became available after Dotterer's plea. "Newly available" evidence is not the same as "newly discovered" evidence and does not qualify as a fair and just reason to withdraw a plea. United States v. Showalter , 569 F.3d 1150, 1155 (9th Cir. 2009) citing United States v. Lockett , 919 F.2d 585, 591-92 (9th Cir. 1990) (witness who refused to testify at trial later agrees to testify for the defense).
Indeed, to be considered competent evidence of intoxication, the testing must be completed within three hours of the violation. HRS § 291E-3(a) (Supp. 2016).
Moreover, in my opinion, it is highly questionable that this evidence "was relevant evidence in [Dotterer's] favor that could have at least plausibly motivated a reasonable person in [his] position not to have pled guilty had he known about the evidence prior to pleading." United States v. Garcia , 401 F.3d 1008, 1011-12 (9th Cir. 2005). While the test result showed Dotterer's BAC was .07 and therefore under the level required for a conviction for OVUII pursuant to HRS 291E-61(a)(4), it does not call into question whether he was driving under the influence under HRS 291E-61(a)(1) with which he was also charged. In fact, it would have established not only that he had alcohol in his system at the time of the offense, but that it was just shy of the statutory presumption, and therefore supportive of the conclusion he was intoxicated at the time. See , HRS § 291E-3(b)(1) and (2) (Supp. 2016).
HRS § 291E-3(b)(1) and (2) provides,
(b) In any criminal prosecution for a violation of section 291E-61 or 291E-61.5, the amount of alcohol found in the defendant's blood or breath within three hours after the time of the alleged violation as shown by chemical analysis or other approved analytical techniques of the defendant's blood or breath shall be competent evidence concerning whether the defendant was under the influence of an intoxicant at the time of the alleged violation and shall give rise to the following presumptions:
(1) If there were .05 or less grams of alcohol per one hundred milliliters or cubic centimeters of defendant's blood or .05 or less grams of alcohol per two hundred ten liters of defendant's breath, it shall be presumed that the defendant was not under the influence of alcohol at the time of the alleged violation; and
(2) If there were in excess of .05 grams of alcohol per one hundred milliliters or cubic centimeters of defendant's blood or .05 grams of alcohol per two hundred ten liters of defendant's breath, but less than .08 grams of alcohol per one hundred milliliters or cubic centimeters of defendant's blood or .08 grams of alcohol per two hundred ten liters of defendant's breath, that fact may be considered with other competent evidence in determining whether the defendant was under the influence of alcohol at the time of the alleged violation, but shall not of itself give rise to any presumption.
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For these reasons, I conclude that the District Court did not abuse its discretion in denying Dotterer's motion to withdraw his plea and would affirm.