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NO. CAAP-19-0000439

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.

THEO PEDRO, Defendant-Appellant

APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT

(CASE NO. 2FFC-18-0000252(4))

SUMMARY DISPOSITION ORDER

(By: Ginoza, C.J., and Leonard and Wadsworth, JJ.)

Defendant-Appellant Theo Pedro (Pedro) appeals from the

Judgment; Conviction and Sentence; Notice of Entry (Judgment),

entered on May 15, 2019, in the Family Court of the Second

Circuit (Family Court).1/ After pleading no contest, Pedro was

convicted of four counts of Sexual Assault in the Second Degree,

in violation of Hawaii Revised Statutes (HRS) § 707-730(1)(a)

(2014),2/ and sentenced to ten years of imprisonment on each

count, to be served concurrently, with credit for time served. 

Prior to sentencing, Pedro filed a motion to withdraw

his no contest plea. The Circuit Court heard the motion and

orally denied it on May 10, 2019. The Circuit Court entered its

1/ The Honorable Richard T. Bissen, Jr. presided.

2/ HRS § 707-730(1)(a) provides:

(1) A person commits the offense of sexual assault in the second

degree if:

(a) The person knowingly subjects another person to

an act of sexual penetration by strong

compulsion[.]

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000439

24-AUG-2020

08:08 AM
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written "Findings of Fact, Conclusions of Law, and Order Denying

Defendant's Motion to Withdraw No Contest Plea" on June 18, 2019.

On appeal, Pedro contends that the Circuit Court abused

its discretion in: (1) denying Pedro's motion to withdraw his no

contest plea prior to sentencing; and (2) sentencing Pedro to the

"open" ten-year term of imprisonment. In connection with his

first point of error, Pedro challenges the Circuit Court's

Findings of Fact (FOF) Nos. 2, 4, 5, and 6, and Conclusions of

Law (COL) Nos. 12 and 13. 

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the arguments advanced and the issues raised by the parties, as

well as the relevant statutory and case law, we resolve Pedro's

contentions as follows. 

(1) "Hawai#i law regarding plea withdrawals is governed

by [Hawai#i Rules of Penal Procedure (HRPP)] Rule 32(d) (2012)

and case law construing the rule." State v. Sanney, 141 Hawai#i

14, 24, 404 P.3d 280, 290 (2017). HRPP Rule 32(d) provides, in

relevant part: 

(d) Withdrawal of Plea. A motion to withdraw a plea

of guilty or of nolo contendere may be made before sentence

is imposed or imposition of sentence is suspended; provided

that, to correct manifest injustice the court, upon a

party's motion submitted no later than ten (10) days after

imposition of sentence, shall set aside the judgment of

conviction and permit the defendant to withdraw the plea.

Under Rule 32(d), a defendant does not have an absolute

right to withdraw his plea of guilty or no contest. See State v.

Krstoth, 138 Hawai#i 268, 274, 378 P.3d 984, 990 (2016); State v.

Smith, 61 Haw. 522, 523, 606 P.2d 86, 88 (1980). However, "a

liberal approach is to be taken when a motion to withdraw a plea

is made under [Rule] 32(d) before sentence is imposed." State v.

Nguyen, 81 Hawai#i 279, 286, 916 P.2d 689, 696 (1996) (quoting

State v. Adams, 76 Hawai#i 408, 411, 879 P.2d 513, 516 (1994)).

The court should grant such a motion before sentencing

"if the defendant has presented a fair and just reason for his

[or her] request and the State has not relied upon the plea to

its substantial prejudice[.]" State v. Gomes, 79 Hawai#i 32, 36,

897 P.2d 959, 963 (1995) (quoting Adams, 76 Hawai#i at 411, 879

P.2d at 516); see also State v. Guity, 144 Hawai#i 557, 561, 445

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P.3d 138, 142 (2019) ("After entry of a plea of guilty or [no

contest] and before sentence, the court should allow the

defendant to withdraw the plea for any fair and just reason."

(quoting Sanney, 141 Hawai#i at 22, 404 P.3d at 288)). There

are, in turn, "two fundamental bases of demonstrating 'fair and

just reasons' for granting withdrawal of a plea: (1) the

defendant did not knowingly, intelligently or voluntarily waive

his or her rights; or (2) changed circumstances or new

information justify withdrawal of the plea."3/ Gomes, 79 Hawai#i

at 37, 897 P.2d at 964 (citing State v. Jim, 58 Haw. 574, 574

P.2d 521 (1978)). Under either of the Gomes bases, "[t]he

defendant has the burden of establishing plausible and legitimate

grounds for the withdrawal." Id. at 36, 897 P.2d at 963 (quoting

State v. Costa, 64 Haw. 564, 565, 644 P.2d 1329, 1331 (1982)). 

When a trial court denies a motion to withdraw a plea,

"the trial court's determination will not be disturbed on appeal

unless abuse of discretion is clearly shown." Nguyen, 81 Hawai#i

at 286, 916 P.2d at 696 (citing Smith, 61 Haw. at 523, 606 P.2d

at 88). "The burden of establishing abuse of discretion is on

appellant and a strong showing is required to establish it." Id.

at 286, 916 P.2d at 696 (quoting State v. Faulkner, 1 Haw. App.

651, 654, 624 P.2d 940, 943 (1981)). An abuse of discretion

occurs "only if the trial court has clearly exceeded the bounds

of reason or disregarded rules or principles of law or practice

to the substantial detriment of a party litigant." Id. at 286-

87, 916 P.2d at 696-97 (citing State v. Merino, 81 Hawai#i 198,

211, 915 P.2d 672, 685 (1996)). 

Pedro contends that he met his burden to withdraw his

no contest plea because "the record supports [his] version of

events," which is that "he did not understand his charges, he did

not receive his copy of the discovery until post change of plea

and there was an alleged complaining witness recantation that was

not investigated." 

Pedro's assertion that he did not understand the

charges against him appears to raise a claim under the first

Gomes basis — that he did not knowingly, intelligently or

3/ We refer to these two bases as the "Gomes bases." 

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voluntarily waive his rights. In this regard, Pedro challenges

FOF Nos. 2 and 4, which state:

2. There has been no evidence presented to challenge

that the no contest plea was not knowingly, intelligently,

and voluntarily given.

. . . .

4. There has been no evidence presented to show that

[Pedro] did not understand all the proceedings, to include

the change of plea proceeding, in this case.

The record supports these findings, and we are not left

with a definite and firm conviction that a mistake has been made. 

At a hearing on January 7, 2019, Pedro's then-counsel informed

the Circuit Court that Pedro and the State had reached a plea

agreement, under which Pedro agreed, among other things, to enter

a no contest plea to four counts of sexual assault in the second

degree. At that time, pursuant to HRPP Rule 11(c), the Circuit

Court carefully reviewed the entire change-of-plea form with

Pedro. At the outset, the Circuit Court noted the presence of

the interpreter to assist Pedro. Pedro acknowledged that he had

the assistance of the interpreter, as well as his attorney, in

reviewing the change of plea form. The Circuit Court then

established Pedro's age, level of education, and language

competency, and confirmed that at the time of the hearing, Pedro

had a clear mind.

During the colloquy with the Circuit Court, Pedro

confirmed he understood the original charges against him, as well

as the reduced charges of sexual assault in the second degree. 

The following exchange occurred:

THE COURT: . . . Two says, I have received a written

copy of the original charges in this case. The charges have

been explained to me. I understand the original charges

against me. 

Is that true?

[PEDRO]: Yes, sir.

THE COURT: I told my lawyer all of the facts I know

about the case. My lawyer explained the government's

evidence against me, my possible defenses, and the facts

which the government must prove in order to convict me. 

Is that all true?

[PEDRO]: Yes, your Honor.

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THE COURT: Item three reads, I understand the reduced

charges of sexual assault in the second degree in counts one

through four with which the government has agreed to charge

me, instead of the original charges of sexual assault in the

first degree. 

Is that true?

[PEDRO]: Right, your Honor.

The Circuit Court also confirmed that Pedro understood the

penalties, including the maximum term of imprisonment, that could

be imposed for the offenses to which Pedro was pleading. 

Regarding Pedro's jury trial waiver, the following

exchange took place:

THE COURT: . . . Please pay special attention to

paragraph five. These are your constitutional rights, and

they are guaranteed to you. 

Starts with, I know I have the right to plead not

guilty and have a speedy and public trial by jury or by the

Court. 

Do you understand you have that right?

[PEDRO]: Yes, your Honor.

THE COURT: Do you understand that by entering your

plea today you are giving up that right and there will be no

trial of any kind?

[PEDRO]: Yes, your Honor.

THE COURT: Next says, I know in a trial the

government is required to prove my guilt beyond a reasonable

doubt. I know I can see, hear and question witnesses who

testify against me, and I may call my own witnesses to

testify for me at trial. 

Do you understand you have those rights?

[PEDRO]: Yes, your Honor.

THE COURT: Do you understand that by entering your

plea today you are giving up those rights?

[PEDRO]: Yes, your Honor.

THE COURT: Next says, I understand I have the right

to take the stand to testify. And I have the right not to

testify at trial. 

Do you understand you have those rights?

[PEDRO]: Yes, your Honor.

THE COURT: Do you understand that by entering your

plea today you are giving up those rights? There will be no

trial. Again, there will be no trial.

[PEDRO]: Yes, your Honor.

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THE COURT: It's not on the form, but I want you to

know that a jury is made up of 12 members of our community. 

You may participate in the selection of that jury through

your attorney. The jury's verdict must be unanimous, which

means they must all agree. 

If you waive your right to a jury trial, then a judge

and a judge alone will determine your guilt or innocence. 

Do you have any questions about that?

[PEDRO]: No, your Honor.

THE COURT: The last line in item five reads, I know

by pleading, I give up the right to file any pretrial

motions, and I give up the right to a trial and may be found

guilty and sentenced without a trial of any kind. I also

give up the right to appeal anything that has happened in

this case to me. 

Do you have any questions about what I've just

explained to you?

[PEDRO]: No, your Honor.

The Circuit Court informed Pedro that "if [he] sign[ed]

this [change-of-plea] form a second time in open court [he would]

be acknowledging that the Court has personally questioned [him]

and that [he] understood this form before signing it a second

time." The court also told Pedro that "if [he did] not

understand the form, or if [he did] not agree with it, then do

not sign it." Pedro then signed the form, and the court found

him guilty of the four charges of sexual assault in the second

degree. 

In the face of this record, Pedro argues that his

"unrebutted testimony" during the subsequent May 14, 2019

sentencing hearing showed that he did not understand the charges

against him. However, Pedro did not testify at the sentencing

hearing. His only statement during the hearing was his unsworn

allocution immediately prior to the Circuit Court imposing

sentence. At that time, the following exchange occurred

regarding the charges:

THE COURT: I read your letters [to the court], Mr.

Pedro. Is there anything else you wish to add?

[PEDRO]: Um --

THE COURT: You wrote those letters?

[PEDRO]: Yes, sir. I, yeah.

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THE COURT: Was there anything else you wanted to add

in addition to that? You wanted me to read those letters;

right --

[PEDRO]: Yes, sir.

. . . .

[PEDRO]: I didn't know what was my, um, charges.

THE COURT: You didn't know your charges?

[PEDRO]: Yeah.

THE COURT: Okay. Well, you seem to write about it in

your letter though. Like you wrote about what you said you

didn't do, based on what you must have known you were

accused of doing. 

You didn't write about a burglary. You didn't write

about a shoplift. You didn't write about a stolen car. 

You wrote about having consensual sex with a 17 year

old. So you knew what the case was about; right?

[PEDRO]: Yeah, but I never really know what the

whole --

THE COURT: Well, then why did you write the letter

the way you wrote it? What did you think this case was

about?

[PEDRO]: Because they told me when I went to -- um,

when they took me to MPD they told me that I was charged

with, um, sexual assault.

THE COURT: And when did they tell you that? The

night you got arrested?

[PEDRO]: Yeah.

THE COURT: Okay. So you knew that before you even

met your lawyer.

[PEDRO]: Yes, sir.

On this record, we conclude that Pedro did not meet his

burden of establishing a fair and just reason for withdrawal of

his no contest plea under the first Gomes basis. We thus

conclude that the Circuit Court did not abuse its discretion in

ruling that Pedro failed to establish that he did not waive his

rights knowingly, intelligently, or voluntarily when he entered

his plea.4/

4/ We also conclude that FOF No. 5 was not clearly erroneous. There,

the Circuit Court found "that although English is not [Pedro's] first

language, his authorship of three (3) handwritten letters to the Court, all

written in English, is indicative of his understanding of all of the

proceedings in this case. In addition a court appointed interpreter was also

provided for Defendant." In challenging this finding, Pedro asserts only that

"[t]here was no evidence in the record to suggest that [Pedro] authorized

continued . . . 

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Pedro also asserts that "he did not receive his copy of

the discovery until post change of plea and there was an alleged

complaining witness recantation that was not investigated." 

These contentions appear to raise a claim under the second Gomes

basis – that there were changed circumstances or new information

that justified withdrawal of Pedro's plea. To withdraw a plea on

this basis, Pedro must, as an initial matter, "advance[] a claim

of new information or changed circumstances with factual support

that, if believed by a reasonable juror, would exculpate [him]. 

Gomes, 79 Hawai#i at 39, 897 P.2d at 966.

Here, Pedro does not explain the nature of the

"discovery" he claims to have received after pleading no contest,

and the record does not reveal what it was. Indeed, this issue

was not raised in Pedro's motion to withdraw his no contest plea.

At the sentencing hearing, Pedro stated that after signing the

plea agreement, "a day -- couple of days or weeks after, I got my

discovery[,]" and "I found some false story on that." He did not

describe the "discovery." In response to questioning by the

Circuit Court, Pedro appeared to acknowledge that he had the

police reports for his case before pleading no contest, but he

had not read them because they were with his prisoner property at

the jail. Regardless, absent any indication in the record of the

nature of the later-acquired "discovery" or the "false story"

that it allegedly contained, Pedro did not advance a claim of new

information with factual support that, if believed by a

reasonable juror, would exculpate him. 

Pedro also claimed for the first time at the May 14,

2019 sentencing hearing that the complaining witness (CW) was

"recanting." At that time, the Circuit Court allowed Pedro's

mother (JP) to testify. Initially, JP stated: "[T]hey talk to

my cousin and tell her that they ask her. And she said he didn't

have anything to do with it, with the accusation[.]" In response

to questioning by the Circuit Court, JP clarified that her

 continued . . . 

[sic] the letters solely by himself, and without any assistance." However,

the Circuit Court directly asked Pedro whether he wrote the letters, and he

responded, "Yes, sir. I, yeah." And Pedro points to nothing in the record

indicating that he wrote the letters with assistance. 

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cousin, Bonet, had talked to her; another family member, Marilyn,

had talked to Bonet; and the CW had talked to Marilyn. JP stated

that she had spoken to Bonet about the matter three days earlier,

on May 11, 2019. She did not know when Bonet spoke to Marilyn,

or when Marilyn spoke to the CW. JP further testified that, per

Bonet, the CW told Marilyn that "[i]t was not her doing[,]" and

"[i]t wasn't her . . . that made up the story." The Circuit

Court summarized JP's testimony, which she confirmed, as follows: 

"Bonet told you that Marilyn told her that [the CW] said, it

wasn't her, and whoever made up a story." 

In FOF Nos. 20 and 21, the Circuit Court found as

follows:

20. The Defendant's mother's testimony is

contradicted by [Pedro's] very own handwritten letters to

the Court admitting that the sexual encounters did occur

between him and the [CW] but that it was consensual.

21. The Court finds that [Pedro's] motion to withdraw

his plea, based on his counsel's understanding that the [CW]

had recanted her allegations, lacks credibility and

believability.

In COL Nos. 9-12, the Circuit Court concluded:

9. The Court does not find the Defendant's mother

credible, as to the information put forth by Defense Counsel

that the [CW] recanted the allegations against [Pedro].

10. A recantation would entail the [CW] stating that

this was not a sexual assault but, a consensual sexual

encounter. The information provided was that someone, other

than the [CW], made the information about [Pedro] and the

[CW] up. That is not a recantation by the [CW].

11. Based on [Pedro's] own handwritten letters to the

court the sexual encounter occurred between him and the

[CW].

12. There was no recantation, no change of

circumstances, and nothing in the testimony of Defendant's

mother that requires a delay in sentencing for further

investigation by Defense Counsel.

Of these FOFs and COLs, Pedro challenges only COL No.

12. FOF Nos. 20 and 21, and COL Nos. 9, 10, and 11, are

therefore binding on appeal and support COL No. 12. See State v.

Rapozo, 123 Hawai#i 329, 334 n.4, 235 P.3d 325, 330 n.4 (2010);

Amfac, Inc., v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 125,

839 P.2d 10, 31 (1992). Pedro does not contend, and we do not

find, that COL No. 12 reflects the application of an incorrect

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rule of law. Accordingly, on this record, we conclude that COL

No. 12 is not wrong. 

Furthermore, we find no abuse of discretion in the

Circuit Court's decision not to credit JP's testimony regarding

the CW's alleged recantation. See Jim, 58 Haw. at 578, 574 P.2d

at 524 ("The trial court did not believe the defendant and found

his reasons for withdrawal to be without sufficient merit. On

the record before us we find no abuse of judicial discretion."). 

On this record, Pedro failed to present a plausible claim of new

information or changed circumstances under Gomes, and the Circuit

Court did not abuse its discretion in denying Pedro's motion to

withdraw his no contest plea on this basis.5/ See 79 Hawai#i at

36, 897 P.2d at 963.

(2) Pedro contends that the Circuit Court abused its

discretion in sentencing him to an open ten-year term because he

"did not take the matter to trial[,] thereby saving the State the

time and expense . . . [and] thereby alleviating an already

burdened court calendar[.]" Pedro further contends that a

probation sentence would have been more appropriate because there

was no applicable mandatory minimum or extended term. 

Pedro has failed to show that the Circuit Court abused

its discretion or that it did not consider the factors in HRS

§ 706-606 (2014).6/ The Hawai#i Supreme Court has stated:

5/ Because Pedro failed to meet his initial burden, his alleged undue

delay in moving to withdraw, and the State's purported reliance upon the plea,

need not be addressed. We therefore do not decide whether FOF No. 6 was

clearly erroneous or COL No. 13 was wrong. 

6/ HRS § 706-606 states, in relevant part:

The court, in determining the particular sentence to be

imposed, shall consider:

(1) The nature and circumstances of the offense and

the history and characteristics of the

defendant;

(2) The need for the sentence imposed:

(a) To reflect the seriousness of the offense,

to promote respect for law, and to provide

just punishment for the offense;

(b) To afford adequate deterrence to criminal

conduct;

continued . . .

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A sentencing judge generally has broad discretion in

imposing a sentence. The applicable standard of

review for sentencing or resentencing matters is

whether the court committed plain and manifest abuse

of discretion in its decision. Factors which indicate

a plain and manifest abuse of discretion are arbitrary

or capricious action by the judge and a rigid refusal

to consider the defendant's contentions. And,

generally, to constitute an abuse it must appear that

the court clearly exceeded the bounds of reason or

disregarded rules or principles of law or practice to

the substantial detriment of a party litigant.

State v. Kong, 131 Hawai#i 94, 101, 315 P.3d 720, 727 (2013)

(quoting State v. Rivera, 106 Hawai#i 146, 154–55, 102 P.3d 1044,

1052–53 (2004), overruled on other grounds by State v.

Maugaotega, 115 Hawai#i 432, 442–43, 168 P.3d 562, 572–73

(2007)). "The weight to be given the factors set forth in HRS

§ 706–606 in imposing sentence is a matter generally left to the

discretion of the sentencing court, taking into consideration the

circumstances of each case." Id. (quoting State v. Akana, 10

Haw. App. 381, 386, 876 P.2d 1331, 1334 (1994)). "[A]bsent clear

evidence to the contrary, it is presumed that a sentencing court

will have considered all the factors." State v. Hussein, 122

Hawai#i 495, 518, 229 P.3d 313, 336 (2010) (ellipses, emphasis,

and brackets omitted). 

Here, the record demonstrates that the Circuit Court

weighed many factors before determining Pedro's sentence. For

example, the court read the pre-sentence investigation report, as

well as the letters that Pedro had sent to the court, and allowed

Pedro to address the court before sentencing. The record also

shows that in weighing the sentencing factors, the Circuit Court

 continued . . .

(c) To protect the public from further crimes

of the defendant; and

(d) To provide the defendant with needed

educational or vocational training,

medical care, or other correctional

treatment in the most effective manner;

(3) The kinds of sentences available; and

(4) The need to avoid unwarranted sentence

disparities among defendants with similar

records who have been found guilty of similar

conduct.

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emphasized the nature and circumstances, as well as the

seriousness, of Pedro's offense — four counts of sexual assault

in the second degree against a 17-year-old girl. See State v.

Sacoco, 45 Haw. 288, 293-94, 367 P.2d 11, 14 (1961). In this

context, the Circuit Court specifically rejected probation as an

appropriate sentence; the court also declined to impose

consecutive sentences, which could have resulted in a 40-year

term of imprisonment. We conclude that on this record, the

Circuit Court did not abuse its discretion in sentencing Pedro to

ten years of imprisonment instead of probation.

Therefore, the Judgment; Conviction and Sentence;

Notice of Entry, entered on May 15, 2019, in the Family Court of

the Second Circuit, is affirmed. 

DATED: Honolulu, Hawai#i, August 24, 2020.

On the briefs:

Shawn A. Luiz

for Defendant-Appellant.

Richard B. Rost,

Deputy Prosecuting Attorney,

County of Maui,

for Plaintiff-Appellee.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Katherine G. Leonard

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

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