NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-20-0000711

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,

v.

CLIFFORD ROSA, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CR. NO. 1CPC-18-0002018)

SUMMARY DISPOSITION ORDER

(By: Ginoza, Chief Judge, Leonard and Nakasone, JJ.)

Defendant-Appellant Clifford L. Rosa (Rosa) appeals

from the Judgment of Conviction and Sentence, filed on October

16, 2020, in the Circuit Court of the First Circuit (Circuit

Court).1

After entering into a plea agreement (Guilty Plea) on

August 15, 2019, Rosa was convicted of Terroristic Threatening in

the First Degree (TT1), in violation of Hawaii Revised Statutes

(HRS) § 707-716(1)(e) (2014) and sentenced to five years

imprisonment on October 16, 2020. 

On appeal, Rosa contends the Circuit Court erred by

denying his Motion to Withdraw Guilty Plea. Similar to the

arguments in his Motion to Withdraw Guilty Plea, Rosa argues on

appeal that he did not intentionally, knowingly, and voluntarily

1 The Honorable Todd W. Eddins presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-20-0000711

31-MAY-2022

09:01 AM

Dkt. 52 SO
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enter into his plea because he received ineffective assistance of

counsel and there was a changed circumstance to justify

withdrawal of his guilty plea. Rosa claims that at the time he

entered into the Guilty Plea, another criminal matter, 1CPC-19-

0001438,2 was pending, and he received ineffective assistance of

counsel when his counsel told him he would never be convicted of

a Class A felony in 1CPC-19-0001438, at most he would be

convicted of a Class B felony which was probationable, and Rosa

would then accept concurrent probation in both cases. However,

Rosa asserts, he was convicted of a Class A felony in 1CPC-19-

0001438 so he was subject to an indeterminate twenty-year

sentence and contends the Hawaii Paroling Authority (HPA) would

not look kindly upon him because he would have two criminal cases

before them. Rosa argues that because he "was the victim of

ineffective assistance of counsel and because changed

circumstances in this matter called for the withdrawal of his

guilty plea, the trial court erred in denying [his] Motion to

Withdraw Guilty Plea." 

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, we

resolve Rosa's point of error as follows, and affirm.

The denial of a motion to withdraw a plea by the trial

court is reviewed for an abuse of discretion. State v. Pedro,

149 Hawai#i 256, 271, 488 P.3d 1235, 1250 (2021).

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

governs plea withdrawals. . . . But HRPP Rule 32(d) omits a

standard controlling plea withdrawal before sentencing. [In]

evaluating pre-sentence requests for plea withdrawals[, the

trial court] should take a "liberal approach" and grant them

if the defendant has presented a fair and just reason for

[the] request and the State has not relied upon the guilty

plea to its substantial prejudice."

Id. at 270, 488 P.3d at 1249 (quoting State v. Jim, 58 Haw. 574,

576, 574 P.2d 521, 522-23 (1978)) (internal quotation marks, some

brackets, and emphasis omitted). "The defendant has the burden

2 The Honorable Todd W. Eddins presided. 

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of establishing plausible and legitimate grounds for the

withdrawal." Id. (quoting State v. Costa, 64 Haw. 564, 565, 644

P.2d 1329, 1331 (1982)). There are two fundamental bases for

demonstrating a fair and just reason: "(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." Id. at 270-71, 488 P.3d at 1249-50

(quoting State v. Gomes, 79 Hawai#i 32, 37, 897 P.2d 959, 964

(1995)). 

"In determining the voluntariness of a defendant’s

proffered guilty plea, the trial court 'should make an

affirmative showing by an on-the-record colloquy between the

court and the defendant wherein the defendant is shown to have a

full understanding of what the plea of guilty connotes and its

consequences.'" State v. Solomon, 107 Hawai#i 117, 127, 111 P.3d

12, 22 (2005) (citation omitted). 

Rosa's only contention on appeal that he did not

knowingly, intelligently, and voluntarily enter into the Guilty

Plea on August 15, 2019, is that 1CPC-19-0001438 was also pending

at the time of his August 15, 2019 guilty plea for which he

received ineffective assistance of counsel due to erroneous

advice resulting in a conviction and sentence inconsistent with

what he allegedly had been told he would receive in that other

case. First, Rosa's claim that 1CPC-19-0001438 was pending is

incorrect. In 1CPC-19-0001438, an Indictment was filed on

October 3, 2019, alleging Rosa committed Robbery in the First

Degree and Robbery in the Second Degree on September 26, 2019.3

Thus, not only was 1CPC-19-0001438 not pending when Rosa entered

into his Guilty Plea on August 15, 2019, the charged crimes in

1CPC-19-001438 did not allegedly occur until September 26, 2019

(after Rosa's guilty plea in this case). Second, to the extent

that Rosa asserts ineffective assistance of counsel at a December

23, 2019 hearing, addressing the State's motion that Rosa had

3 This court takes judicial notice of the records in 1CPC-19-0001438.

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breached the plea agreement because of new criminal charges, his

claim lacks merit. At this hearing, the Circuit Court expressly

advised Rosa that if he kept his plea deal, he would potentially

face five years imprisonment. Rosa expressly acknowledged his

understanding and choice to keep his plea to TT1 and that the

court could sentence him to an open term. 

Gomes stated four factors the trial court should

consider when determining whether to grant or deny a pre-sentence

request to withdraw a plea. Pedro, 149 Hawai#i at 272, 488 P.3d

at 1251 (quoting Gomes, 79 Hawai#i at 39, 897 P.2d at 966). The

four-factor test imposes a floor in the trial court's discretion

to grant a pre-sentence motion for plea withdrawal; it

establishes one set of circumstances in which a trial court must

grant the motion based on new circumstances but does not provide

any guidance for courts when the new information or changed

circumstance is not exculpatory. Id. at 272-73, 488 P.3d at

1251-52. The Circuit Court found Rosa met none of the four

factors in Gomes. On appeal, Rosa does not dispute the Circuit

Court's findings. Therefore, the Circuit Court was not required

to allow Rosa to withdraw his guilty plea.

Nonetheless, the inability to satisfy the four-part

Gomes test is not dispositive that there is no other fair and

just reason to justify withdrawal of a plea. Pedro, 149 Hawai#i

at 274, 488 P.3d at 1253. The trial court should examine the

totality of the circumstances to determine whether there was any

fair and just reason to justify withdrawal of a plea. Id. The

trial court should consider:

(1) whether the defendant has asserted and maintained

innocence; (2) the timing of the request for the plea

withdrawal and the reasons for any delay; (3) the

circumstances underlying the plea; (4) the defendant’s

nature and background; and (5) the potential prejudice

to the prosecution caused by reliance on the plea.

Id. at 275, 488 P.3d at 1254.

In this case, the trial court could not have undertaken

the Pedro analysis, which was announced in 2021. However, the

record on appeal is fully developed to allow for appellate review

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to determine whether there was any fair and just reason

justifying withdrawal of Rosa's Guilty Plea under Pedro. Id.

(1) Whether Rosa asserted and maintained innocence

Rosa did not assert or maintain his innocence. Rosa

pled guilty and admitted to the factual basis for TT1. 

Therefore, the first Pedro factor weighs against allowing Rosa to

withdraw his plea.

(2) Rosa's timing of his request for the plea

withdrawal and the reasons for any delay

In this case, as in Pedro, 149 Hawai#i at 276-77, 488

P.3d at 1255-56, Rosa's Form K also contained language indicating

he would not be permitted to withdraw his plea but at the time

Rosa sought to withdraw his plea on July 6, 2020, he was aware

the statement was incorrect because he declined a prior

opportunity to withdraw his plea. After it was determined Rosa

breached a condition of the Guilty Plea by being arrested in

1CPC-19-0001438, on December 23, 2019, Rosa was informed that he

had two options: withdraw his plea and be tried for Assault in

the Second Degree as originally charged in this case; or keep the

guilty plea to TT1 but sentencing would change with the

possibility of him being sentenced to five years incarceration. 

Rosa stated "I think I blew a good deal," and chose "that the

case stays to TT1 and that you can sentence me to the open term." 

Rosa then twice affirmed that he understood he could withdraw the

Guilty Plea but was choosing to plead guilty to TT1. Thus, Rosa

knew of the possibility of withdrawing his plea despite the

language of the Guilty Plea well in advance of his request to

withdraw the plea on July 6, 2020. 

It appears Rosa's delay in requesting to withdraw his

guilty plea is based on the fact that sentencing in this case was

continued until after the outcome of 1CPC-19-0001438. 

In 1CPC-19-0001438, a jury verdict finding Rosa guilty

of Count 1 (Robbery in the First Degree) and Count 2 (Robbery in 

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the Second Degree) was rendered on March 12, 2020. On May 7,

2020, a deputy public defender requested the Office of the Public

Defender (OPD) be allowed to withdraw from representing Rosa in

both cases and filed nearly identical Motions to Withdraw as

Counsel. Counsel indicated Rosa requested withdrawal by the OPD

because he was dissatisfied with the evidence presented during

the jury trial, believed the complaining witness in Count 1

fabricated testimony that he had a firearm and the complaining

witness in Count 2 fabricated testimony that he took her purse. 

Rosa claimed counsel should have been aware he was suffering from

internal bleeding during trial4 and that counsel should have

attached medical records to his motion for emergency release

showing he had been transported to Straub when arrested in 1CPC19-0001438. Rosa was also upset counsel did not meet with him on

May 6, 2020, and while discussing the process for a motion to

withdraw plea on May 7, 2020, Rosa became irate and left the

meeting. 

On May 26, 2020, the Circuit Court orally granted

counsel's request to withdraw in this case but denied the request

without prejudice in 1CPC-19-0001438 until after sentencing

because the dispute involved trial strategy issues. The Circuit

Court then found Rosa guilty as charged and imposed a sentence in

1CPC-19-0001438. The same day, the Circuit Court then

reconsidered the denial of counsel's request to withdraw in 1CPC19-0001438 and ordered new counsel be appointed in both cases. 

On May 26, 2020, a Judgment of Conviction and Sentence was

entered in 1CPC-19-0001438. 

On July 6, 2020, Rosa's new counsel moved to withdraw

the Guilty Plea in this case. There is nothing in the record

linking the Guilty Plea with a specific outcome in 1CPC-19-

0001438 or to sentencing conditions favorable to Rosa in either

case. Rosa knew sentencing in this case would be delayed until

4 Counsel noted, however, that Rosa did not obtain any medical

attention or treatment during trial or immediately thereafter. 

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after 1CPC-19-0001438 was determined. Thus, Rosa cannot claim

that a fair and just reason to withdraw his plea in this case is

that there would be two criminal convictions before the HPA when

he knew it was a possibility by delaying sentencing and awaiting

the outcome of 1CPC-19-0001438. 

Rosa's claim that he was assured by his prior counsel

in 1CPC-19-0001438 that he would only be convicted of a

probationable felony does not present a fair and just reason to

withdraw his plea because he was not assured probation in either

1CPC-19-0001438 or this case. The possibility of simultaneous

sentences of imprisonment for two separate criminal cases was

known to Rosa. Rosa unduly delayed his request to withdraw his

Guilty Plea because the reasons he provided were not related to

the present case, sentencing was delayed to coincide with the

outcome of 1CPC-19-0001438, and Rosa only moved to withdraw the

plea after he learned of the unfavorable outcome of 1CPC-19-

0001438 which had no connection to the Guilty Plea. Therefore,

the second Pedro factor weighs against allowing Rosa to withdraw

his plea.

(3) The circumstances underlying Rosa's plea

In Pedro, the court noted there were four features of

the circumstances surrounding the pleas which favored allowing

their withdrawal: the pleas were spur of the moment, the pleas

were entered well in advance of trial, the defendant did not have

requested discovery materials at the time of entering the pleas,

and the defendant faced severe potential consequences if the

pleas were withdrawn. Id. at 278-80, 488 P.3d at 1257-59. 

On December 28, 2018, Rosa was originally charged by

Felony Complaint with Assault in the Second Degree. During a

hearing on January 7, 2019, exhibits attached to the Felony

Complaint were unsealed and copies were given to Rosa pursuant to

HRPP Rule 16. On February 25, 2019, Rosa filed a Motion to

Continue Trial Week and Extend Pretrial Motions Deadline which

requested the March 11, 2019 trial date be rescheduled because,

although counsel reviewed the case records and files, counsel

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would be away from the office for a significant amount of time

leading up to the trial week. Trial was rescheduled to May 13,

2019, but on May 6, 2019, Rosa again requested a continuance

because he was recently released from the hospital and counsel

wanted to meet with Rosa to prepare and discuss potential

defenses. Trial was rescheduled to June 17, 2019, but on June 7,

2019, the State requested a continuance because it was in

discussions with Rosa about a global settlement. Rosa objected

to the State's request for a continuance but trial was continued

again until September 9, 2019. On August 15, 2019, Rosa appeared

for a change of plea hearing and entered into the Guilty Plea. 

Rosa's Guilty Plea was not entered spur of the moment

and the parties engaged in negotiations for a global settlement

prior to his change of plea hearing. 

In Pedro, the court noted the pleas were entered well

in advance of trial when no motions in limine were adjudicated,

jurors were not summoned, and trial was not imminent, thus,

judicial resources consumed in allowing a withdrawal of a plea

was near nil and would not undermine the efficient administration

of justice. Id. at 279, 488 P.3d at 1258. In this case, Rosa's

June 10, 2019 motion in limine was not adjudicated, no jury trial

was demanded, and trial was imminent but continued three times. 

Thus, it does not appear withdrawal of Rosa's plea would

undermine the efficient administration of justice. 

No claim was made by Rosa that discovery material was

not received, either at the time Rosa entered into the Guilty

Plea or when he requested to withdraw it. 

The original charge of Assault in the Second Degree and

the amended charge of TT1 to which Rosa pled guilty are both

Class C felonies subjecting him to up to five years

incarceration. HRS §§ 707-711(2) (2014), 707-716(2) (2014), and

706-660(1)(b) (2014). Withdrawal of the Guilty Plea would have

resulted in recision of a guilty plea to five counts of violating

a temporary restraining order in 1FFC-18-0000607. However, the

charges against Rosa in three other cases were dismissed with

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prejudice on September 3, 2019, instead of being dismissed

without prejudice as agreed to in the Guilty Plea. Thus, Rosa

would face significantly fewer consequences by withdrawing his

guilty plea. The circumstances underlying Rosa's plea weigh

against allowing withdrawal of the Guilty Plea.

(4) Rosa's nature and background

In Pedro, the court stated "[a] youthful defendant, or

a defendant with limited mental faculties, education, or Englishlanguage proficiency may be poorly equipped to thoughtfully

consider a plea's implications." 149 Hawai#i at 280, 488 P.3d at

1259. The Pedro court also noted the extent of the colloquy

discussing whether the defendant understood the charge and

complexity of the terminology of the charge as additional factors

when weighing whether the fourth factor was in favor of allowing

withdrawal of a plea. Id. The defendant in Pedro was only asked

whether he understood the reduced charges of sexual assault in

the second degree in comparison to sexual assault in the first

degree and the Pedro court stated "[t]he legal terminology

surrounding different sexual assault charges can be complex." 

Id. 

During Rosa's colloquy, he indicated he was 50 years

old, was one credit shy of graduating from Kailua High School,

and read, wrote, spoke, and understood English. Rosa's

presentence report indicated he was born and raised in Hawai#i. 

Rosa was not merely asked whether he understood the charge, Rosa

was also asked whether he understood the elements of the offense

that the State was required to prove beyond a reasonable doubt

and whether he had any questions about the offense. Rosa then

recited the factual basis for the crime, agreed that was what

happened, and affirmed he fully understood what the crime was all

about. Thus, the fourth factor weighs against allowing Rosa to

withdraw his plea. 

(5) The potential prejudice to the

prosecution caused by reliance on the plea

"In evaluating whether there is a fair and just reason

for plea withdrawal, the court should weigh any prejudice to the

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prosecution caused by reliance on the defendant's plea." Pedro,

149 Hawai#i at 280, 488 P.3d at 1259 (internal quotation marks

and citation omitted). "In some cases, even a showing of

substantial prejudice to the prosecution may be outweighed by

other factors strongly favoring withdrawal." Id. at 281, 488

P.3d at 1260. In this case, the prejudice to the State is

substantial. On September 3, 2019, twenty-four charges in three

different cases were dismissed with prejudice. Thus, the State

was barred from prosecuting those charges even if Rosa was

allowed to withdraw his plea. The other Pedro factors do not

outweigh the substantial prejudice to the State and the fifth

Pedro factor weighs heavily against allowing Rosa to withdraw his

plea. Under the totality of the circumstances, Rosa did not

present a fair and just reason for the withdrawal of the Guilty

Plea. Therefore, the Circuit Court did not abuse its discretion

by denying the Motion to Withdraw Guilty Plea.

Therefore, IT IS HEREBY ORDERED that the Judgment of

Conviction and Sentence, filed on October 16, 2020, in the

Circuit Court of the First Circuit, is affirmed.

DATED: Honolulu, Hawai#i, May 31, 2022.

On the briefs:

Walter J. Rodby,

for Defendant-Appellant

Loren J. Thomas,

for Plaintiff-Appellee

/s/ Lisa M. Ginoza

Chief Judge

/s/ Katherine G. Leonard

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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