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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 45532

STATE OF IDAHO,

Plaintiff-Respondent,

v.

FREDRICK D. ROY,

Defendant-Appellant.

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Filed: December 31, 2018

Karel A. Lehrman, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Second Judicial District, State of Idaho, Nez 

Perce County. Hon. Jay P. Gaskill, District Judge. 

Opinion and order denying motion to withdraw guilty plea and appoint new 

counsel, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Andrea W. Reynolds, 

Deputy Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney 

General, Boise, for respondent. 

________________________________________________

GRATTON, Chief Judge 

Fredrick D. Roy appeals from the judgment of conviction and the opinion and order 

denying his motion to withdraw guilty plea and appoint new counsel. Roy challenges the district 

court’s denial of the motion to appoint new counsel. For the reasons set forth below, we affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Roy pled guilty to unlawful possession of a firearm, Idaho Code § 18-3316. The district 

court accepted the terms of the plea agreement and imposed a sentence of two years determinate; 

however, the court stayed the execution of the sentence pending Roy’s appeal from the denials of 

a motion to suppress and a motion in limine. On appeal, this Court affirmed the district court. 

State v. Roy, Docket No. 44472 (Ct. App. May 24, 2017) (unpublished). 
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Following issuance of the remittitur, the district court held a sentencing hearing. At the 

sentencing hearing, the court imposed a sentence of two years determinate. Also at the hearing, 

Roy requested that the $10,000 cash bond that his mother had posted on his behalf be released to 

his mother’s estate. Following the hearing, the district court entered the judgment of conviction 

and an order of bond forfeiture or release, which required “that the Bond be applied to Fines, 

Costs and to any other Funds as Ordered by the Court” before any remaining sums could be 

disbursed to the estate of Roy’s mother. 

Thereafter, Roy filed a pro se motion to withdraw guilty plea and appoint new counsel.

Roy attached a receipt from the district court to the motion that showed $8,905.77 of the

$10,000.00 cash bond had been applied to amounts owing by Roy. Before the district court 

considered the motion to withdraw guilty plea and appoint new counsel, Roy also filed a pro se 

notice of appeal and motion for appointment of appellate counsel. The district court 

subsequently denied the motion to withdraw guilty plea and motion to appoint new counsel. In 

the opinion and order denying the motion to withdraw guilty plea and motion to appoint new 

counsel, the court wrote: “The Defendant also sought substitution of counsel in this motion. 

Subsequently, the Defendant filed a second appeal in this matter. The Defendant will be 

appointed counsel for that appeal, therefore, the motion for substitution of counsel is moot.” Roy 

timely appeals.

II.

ANALYSIS

On appeal, Roy asserts the district court abused its discretion in denying the motion to 

appoint new counsel. The State, however, asserts the district court did not abuse its discretion in

denying the motion. We agree. 

When a trial court’s discretionary decision is reviewed on appeal, the appellate court 

conducts a multi-tiered inquiry to determine whether the lower court correctly perceived the 

issue as one of discretion, acted within the boundaries of such discretion, acted consistently with 

any legal standards applicable to the specific choices before it, and reached its decision by an 

exercise of reason. State v. Herrera, ___ Idaho ___, ___, 429 P.3d 149, 158 (2018).

Roy argues the district court abused its discretion in concluding Roy’s motion for 

appointment of counsel was moot because it did not act consistently with the applicable legal 
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standard. According to Roy, the court should have considered the motion to appoint new 

counsel under the standard set forth in I.C. § 19-852(2)(c), which provides:

An indigent person who is entitled to be represented by an attorney under 

subsection (1) of this section is entitled: 

. . . . 

(c) To be represented in any other post-conviction or postcommitment proceeding that the attorney or the indigent person considers 

appropriate, unless the court in which the proceeding is brought 

determines that it is not a proceeding that a reasonable person with 

adequate means would be willing to bring at his own expense and is 

therefore a frivolous proceeding.

Roy contends that because the court did not find the motion to withdraw guilty plea frivolous, he 

had the right to the assistance of counsel on that motion pursuant to I.C. § 19-852(2)(c). 

The State argues Roy failed to show that the district court abused its discretion because 

Roy was, in fact, represented by appointed counsel when he filed his post-judgment pro se 

motions. Additionally, the State argues he misinterprets the motion before the district court as a 

motion for the appointment of counsel when the court properly construed it as a motion for 

substitution of counsel. Thus, the State contends any issue regarding substitution should not be 

considered because on appeal Roy did not make any arguments that the district court erred by 

denying the motion for substitution of counsel. Alternatively, the State argues that even if the 

substitution of counsel issue is considered on appeal, the district court properly denied Roy’s 

motion for substitution of counsel because Roy was only entitled to substitute counsel upon a 

showing of good cause and none of the issues claimed by Roy rose to the level of good cause. 

The district court correctly construed Roy’s motion to appoint new counsel as a motion 

for substitution of counsel. The record reveals that Roy was represented by a court-appointed 

attorney at the time he filed the motion to appoint new counsel. At that time Idaho Criminal 

Rule 44.1 provided:

No attorney may withdraw as an attorney of record for any defendant in 

any criminal action without first obtaining leave and order of the court . . . . 

Leave to withdraw as the attorney of record for a defendant may be granted by the 

court for good cause. Provided, an attorney may withdraw at any time after the 

final determination and disposition of the criminal action . . . but in the event of 

conviction an attorney may not withdraw without leave of the court until the 

expiration of the time for appeal from the judgment of conviction.

I.C.R. 44.1 (2015). The magistrate granted Roy’s application for appointment of a public 

defender, and he was represented by court-appointed counsel throughout his case. Roy’s 
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appointed counsel never obtained leave or an order from the district court permitting him to 

withdraw as attorney of record in this matter. In the district court’s order appointing the State 

Appellate Public Defender to represent Roy on his initial appeal to this Court, the district court 

explicitly ordered Roy’s court-appointed trial counsel to “continue to represent [Roy] in all other 

aspects of this case, subject to the further order of this court.” In compliance with this order, 

Roy’s court-appointed attorney appeared with Roy at the sentencing hearing following the 

issuance of the remittitur from Roy’s initial appeal. The record clearly reveals that the district 

court never signed an order allowing Roy’s appointed counsel to withdraw, and Roy filed the 

motion to withdraw guilty plea and appoint new counsel before the expiration of the time for 

appeal from the judgment of conviction. Thus, when Roy filed the pro se motion to withdraw 

guilty plea and appoint new counsel, less than one month after the sentencing hearing, he was 

still represented by his court-appointed public defender. 

The text of Roy’s motion also supports the conclusion that Roy was still represented by 

court-appointed counsel at the time he filed the motion to appoint new counsel. Roy referenced 

his appointed public defender by name several times in the motion. He also closed the motion by 

asking the court to “find [defense counsel] to be ineffective and Appoint Counsel who is capable 

of compliying [sic] with the rule 11 Plea agreement.” Roy’s decision to file the motion to 

withdraw guilty plea and appoint new counsel pro se effectively cut his own counsel out of the 

proceedings, and he has failed to show from the record that his court-appointed counsel would 

not or could not assist with the motion to withdraw guilty plea. Because Roy was represented by 

court-appointed counsel at the time he filed the motion to appoint new counsel, the district court 

correctly construed Roy’s motion to appoint new counsel as a motion for substitution of counsel. 

Furthermore, the court did not act inconsistently with applicable law because there was no 

violation of I.C. § 19-852(2)(c). 

Moreover, Roy made no showing that he needed substitute counsel. Roy was attempting 

to use the motion to withdraw guilty plea as a vehicle for recovering the cash bond that he 

alleged had been unlawfully applied to fines and debts before being relinquished to his mother’s 

estate.1

 The bases of Roy’s motion to withdraw guilty plea were: (1) an unsupported allegation 

 1 The bond matter is not relevant to the withdrawal of Roy’s guilty plea, but we make no 

comment on the application of the bond to fines, costs, and to any other funds as ordered by the 

court before any remaining sums could be disbursed to the estate of Roy’s mother.
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that the State had violated the Rule 11 plea agreement, and (2) an allegation that Roy’s courtappointed counsel was either unable or unwilling to file an appeal in the Ninth Circuit Court of 

Appeals. Roy suggests on appeal that if the court had granted his motion to appoint new 

counsel, then counsel could have assisted him in properly challenging, among other things, the 

district court’s application of the $10,000.00 cash bond posted by his mother to amounts owed 

by Roy, or the constitutionality of I.C. § 19-2908.

2 However, the district court correctly 

determined that there was “no basis for allowing [Roy] to withdraw his guilty plea,” and denied 

the motion. Again, Roy failed to show that his court-appointed counsel would not or could not 

assist with the motion to withdraw guilty plea. Accordingly, it was within the district court’s 

discretion to deny the motion for appointment of new counsel.

III.

CONCLUSION

The district court did not abuse its discretion by denying the motion to appoint new 

counsel. Accordingly, we affirm the judgment of conviction and the opinion and order denying 

his motion to withdraw guilty plea and appoint new counsel.

Judge GUTIERREZ and Judge HUSKEY CONCUR. 

 2 Idaho Code § 19-2908 provides:

When bail has been posted by cash deposit and remains on deposit at the 

time of the judgment, the clerk of the court shall, under the direction of the court, 

apply the money in satisfaction of fines, fees, costs and restitution imposed in the 

case and fines, fees, costs and restitution that have been imposed against the 

defendant in any other criminal action, and after satisfying the fines, fees, costs 

and restitution, shall refund the surplus, if any, to the person posting the cash 

deposit.