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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38662

STATE OF IDAHO,

Plaintiff-Respondent,

v.

MARK ANDREW WING,

Defendant-Appellant.

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2012 Unpublished Opinion No. 439

Filed: April 10, 2012

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED 

OPINION AND SHALL NOT 

BE CITED AS AUTHORITY

Appeal from the District Court of the First Judicial District, State of Idaho, 

Kootenai County. Hon. John T. Mitchell, District Judge. 

Order denying motion to withdraw guilty plea, affirmed.

Sara B. Thomas, State Appellate Public Defender; Justin M. Curtis, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

LANSING, Judge

Mark Andrew Wing appeals from his judgment of conviction for aggravated assault, 

challenging the district court’s order that denied Wing’s motion to withdraw his guilty plea.

I.

BACKGROUND

Police responded to reports that Wing was chasing another individual through a trailer 

park, attempting to decapitate him with a sword. Wing, who appeared to be intoxicated and 

smelled heavily of alcohol, aggressively resisted arrest. He was charged with attempted murder 

in the first degree, Idaho Code §§ 18-4001, 18-4002, 18-4003, 18-306; and obstructing a peace 

officer, I.C. § 18-705. The case proceeded to a jury trial, but a mistrial was declared after 

inadmissible evidence was mentioned by a witness. A few days later, the parties negotiated a 
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plea agreement by which Wing would enter an Alford plea1 to aggravated assault, I.C. §§ 18-

901, 18-905(a) and/or (b), and the original charges would be dismissed. The Alford plea to the 

reduced charge was accepted by the trial court. 

After preparation of a presentence investigation report, but before sentencing, Wing, 

through new counsel, filed a motion to withdraw his guilty plea. As grounds for the motion, 

Wing asserted that he believed he was innocent of the offense and that his former attorney had 

failed to contact one of the witnesses that Wing had included on a witness list given to his 

attorney and to a defense investigator. The subject witness was a minister who was one of 

Wing’s neighbors. According to Wing, his former attorney said that she had contacted the 

minister but that he said Wing had been reeking of alcohol and was drunk at the time of his 

arrest. Wing testified that in a subsequent conversation with this minister, the minister said that 

he had not been contacted by Wing’s attorney. No testimony or affidavit from the minister was 

presented at the hearing on Wing’s motion to withdraw his plea. 

The district court denied the motion, noting that the court had heard no testimony from 

the minister, and the fact that Wing did not believe he was guilty did not constitute a valid reason 

to allow withdrawal of a guilty plea. The district court also noted that if withdrawal of the guilty 

plea were allowed, a persistent violator sentence enhancement could be alleged by the State, 

subjecting Wing to the possibility of a life sentence, so allowing withdrawal of the plea would 

not inure to his benefit. The court concluded that Wing had not met his burden to show a just 

cause for withdrawal of the plea and therefore denied the motion. On appeal, Wing contends that 

the district court abused its discretion in denying the motion.

II.

ANALYSIS

The decision to grant a motion to withdraw a guilty plea is left to the sound discretion of 

the district court, and such discretion should be liberally applied. State v. Arthur, 145 Idaho 219, 

222, 177 P.3d 966, 969 (2008). Our review of the denial of such a motion is limited to 

determining whether the district court exercised sound judicial discretion as distinguished from 

arbitrary action. Id. The timing of the motion is significant; when the motion is made before 

sentencing, a defendant need only show a “just reason” to withdraw the plea. I.C.R. 33(c); State 

 

1 See North Carolina v. Alford, 400 U.S. 25 (1970).
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v. Ballard, 114 Idaho 799, 801, 761 P.2d 1151, 1153 (1988). Nonetheless, even when the motion 

is presented before sentencing, if it occurs after the defendant has learned of the content of the 

PSI or has received other information about the probable sentence, the district court may temper 

its liberality by weighing the defendant’s apparent motive. State v. Mayer, 139 Idaho 643, 647, 

84 P.3d 579, 583 (Ct. App. 2004). The defendant bears the burden of showing that withdrawal 

of the plea should be allowed. State v. Dopp, 124 Idaho 481, 485, 861 P.2d 51, 55 (1993). The 

failure to present and support a plausible reason will dictate against granting withdrawal, even 

absent prejudice to the prosecution. Id. When the motion is made before sentencing, a 

defendant need only show a “just reason” to withdraw the plea, Arthur, 145 Idaho at 222, 177 

P.3d at 969; Ballard, 114 Idaho at 801, 761 P.2d at 1153, but “withdrawal is not an automatic 

right and more substantial reasons than just asserting legal innocence must be given.” Dopp, 124 

Idaho at 486, 861 P.2d at 56.

A mere assertion of innocence, by itself, is not grounds to withdraw a guilty plea. State 

v. Rodriguez, 118 Idaho 957, 960, 801 P.2d 1308, 1311 (Ct. App. 1990); State v. Akin, 139 Idaho 

160, 162, 75 P.3d 214, 216 (Ct. App. 2003); State v. Knowlton, 122 Idaho 548, 549, 835 P.2d 

1359, 1360 (Ct. App. 1992). When an assertion of innocence is made in order to withdraw a 

plea, the court must also consider the reason why the defense was not put forward at the time of 

original pleading. Rodriguez, 118 Idaho at 961, 801 P.2d at 1312. Furthermore, the good faith, 

credibility, and weight of the defendant’s assertions in support of his motion to withdraw his plea 

are matters for the trial court to decide. Knowlton, 122 Idaho at 549, 835 P.2d at 1360. See also 

State v. Brown, 121 Idaho 385, 388-89, 825 P.2d 482, 485-86 (1992). 

The fact that Wing entered an Alford plea in which he did not admit factual guilt does not 

diminish his burden to show a just reason for withdrawal of the plea. The Idaho Supreme Court 

has explained:

Federal cases hold generally that a defendant who enters an Alford-type plea is 

not “willy nilly” entitled to withdraw it, as this would render inconsequent the 

guilty plea. . . . The utility of Alford pleas will be severely reduced if defendants 

are permitted to withdraw them before sentencing for no additional reason. Such 

a holding might well lead to a reluctance on the part of prosecutors and judges to 

agree to the acceptance of such pleas. This would impair judicial efficiency by 

eliminating a useful procedure for the resolution of criminal cases; it would also 

work to the detriment of defendants. We therefore hold that a denial of factual 

guilt is not a just reason for the later withdrawal of the plea, in cases where there 

is some basis in the record of factual guilt . . . .
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Dopp, 124 Idaho at 486, 861 P.2d at 56. See also Akin, 139 Idaho at 162-63, 75 P.3d at 216-17. 

Here, the district court could properly discount Wing’s claim of innocence, for according 

to the police reports, several witnesses in addition to the victim saw Wing chasing the victim 

with a sword. Further, several police officers could attest to Wing’s intoxicated state and his 

combativeness when arrested. 

Wing’s contention that his attorney failed to contact one potential witness does not 

demonstrate good cause, for Wing presented no evidence that the witness would have provided 

any information favorable to Wing’s defense. Even Wing’s contention that the witness was not 

interviewed was unsupported by testimony from either the witness himself or from Wing’s 

former attorney.

Wing also contends that the court should not have considered, as a factor, whether 

withdrawal of the plea would have inured to Wing’s benefit. We need not address that 

contention because, whether or not the benefit to Wing was a proper consideration, Wing simply 

did not demonstrate any just cause for withdrawal of the plea, and his motion was therefore 

properly denied.

The order of the district court denying Wing’s motion to withdraw his guilty plea is 

affirmed.

Chief Judge GRATTON and Judge MELANSON CONCUR.