1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 40222

STATE OF IDAHO , Plaintiff-Respondent ,

v. WAYNE D. ANDERSON, aka WAYNE D. ANDERSON, II , Defendant-Appellant

. ) ) ) ) ) ) ) ) ) ) ) 2014 Opinion No. 25

Filed: March 28, 2014
Stephen W. Kenyon, Clerk

Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Thomas J. Ryan , District Judge.
Judgment of conviction and unified sentence of forty years, with fifteen years determinate, for lewd conduct with a minor under sixteen, affirmed

. Sara B. Thomas, State Appellate Publ ic Defender; Ben Patrick McGreevy, Deputy Appellate Public Defender, Boise, for appellan t.
Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney General, Boise, for respondent.

________________________________________________ GUTIERREZ, Chief Judge Wayne D. Anderson appeals from his judgment of conviction and sentence for lewd
conduct with a minor under sixteen with a mandatory minimum sentencing enhancement for being a repeat offender . Specificall y, he contends the district court abused its discretion by denying his motion to withdraw his guilty plea and in imposing sentence. For the reasons set forth below, we affirm

. I.
FACTS AND PROCEDURE The Nampa Police Department received information that Anderson wa s sexually abusing
his thirteen

- year

- old daughter, D.A. Police contacted Anderson’s wife who reported that two of her minor daughters, C.A. and D.A., told her Anderson had sexually abused them. She stated2 that when she confronted Anderson abo ut the allegations, he admitt ed to sexually touching the girls and threatened to commit suicide. After interviewing the daughters, the officers went to interview Anderson who they found in the process of attempting to take his own life. Anderson admitted to having “ groomed” and engaged in sexual contact with D.A. Shortly after the interview, Anderson was hospitalized in a mental facility for several days. For his actions with D.A., Anderson was charged with one
count of lewd conduct with a minor child un der sixteen, Idaho Code § 18

- 1508, and one count of sexual abuse of a child under the age of sixteen years, I.C. § 18

- 1506. He was also charged with two mandatory minimum sentencing enhancements pursu ant to Idaho Code § 19

- 2520G(2) on
the basis that he wa s previously convicted of lewd conduct with a minor under sixteen in 1998 for sexually a busing his oldest daughter, E.A . Anderson was also charged with one count of sexual abuse of a minor under sixteen and a mandatory minimum sentencing enhanceme nt in

re gard to his alleged abuse of C.A. The cases were consolidated.
Anderson entered an Alford 1 guilty plea to the lewd conduct charge and one mandatory sentencing enhancement in regard to his abuse of D.A. In exchange, the State agreed to dismiss
the sexua l abuse charge and related sentencing enhancement and to dismiss the charges pertaining to C.A. The State agreed to recommend imposing a determinate term of fifteen years,

as required pursuant to the sentencing enhancement

. Prior to sentencing, Anderson filed an Idaho Criminal Rule 33(c) motion to withdraw his guilty plea, contending, among other arguments, that his plea was not voluntary because the day before entering the plea he was pressured by his wife to plead guilty. After holding two hearings and listening to a recording of
the conversation between Anderson and his wife , the district court denied the motion in a written memorandum, noting family pressure is not a valid basis to find impermissible coercion of a guilty plea.
Anderson filed a motio n to reconsider, asserting he was “ severely depressed” after speaking to his wife and at the time he entered his guilty plea. At a hearing on the motion, the district court indicated its analysis in the memorandum decision denying the motion to withdraw

t he guilty plea continued to be applicable and denied the motion to reconsider.

1 See North Carolina v. Alford , 400 U.S. 25 (1970).3 At the sentencing hearing, the State recommended the district court impose a unified sentence of life imprisonment, with the mandatory minimum of fifteen years determinate.
A nderson requested that the court impose only five years indeterminate in addition to the mandatory minimum. The district court imposed a unified sentence of forty years, with fifteen years determinate. Anderson now appeals the denial of his motion to wit hdraw his guilty plea
and his sentence.
II.
ANALYSIS
Anderson contends the district court erred by denying his motion to withdraw hi s guilty plea because he showed his plea was involuntary. He also contends the district court abused its
disc retion by imposing an excessive sentence.
A. Withdrawal of Guilty Plea
Anderson a sserts his plea was constitutionally involuntary due to the combination of his wife’s coercion and his asserted depression
, or in the alternative, that these factors constituted a just reason for withdrawal of his plea. Whether to grant a motion to withdraw a guilty plea lies in the discretion of the district court and such discretion should be liberally applied. State v.
Fr eeman , 110 Idaho 117, 121, 714 P.2d 86, 90 (Ct. App. 1986). Appellate review of the denial of a motion to withdraw a plea is l imited to determining whether the district court exercised sound judicial discretion as distinguished from arbitrary action

. Id. When a trial court’s discretionary decision is reviewed on appeal, the appellate court conducts a multi

- tiered inquiry
to determine: (1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it; and (3) whether the lower court reached its decision by an exercise of reason. State v. Hedger , 115 Idaho 598, 600, 768 P.2d 1331, 1 333 (1989). The first step in analyzing a motion to withdraw a guilty plea is to determine whether the plea was knowingly, intelligently, and voluntarily made. State v. Hanslovan , 147 Idaho 530, 536, 211 P.3d 775, 781 (Ct. App. 2008) ; State v. Rodrigu ez , 118 Idaho 957, 959, 801 P.2d 1308, 1310 (Ct. App. 1990) . If the plea is constitutionally valid, the court must then determine whether
the defendant has show n a nother just reason for withdrawing the plea. Idaho Criminal
Rule 33(c); State v. Flowers , 1 50 Idaho 568, 571, 249 P.3d 367, 370 (2011) . This just reason4 standard does not require that the defendant establish manifest injustice or a constitutional defect in the guilty plea. Flowers , 150 Id aho at 571, 249 P.3d at 370 ; State v. Henderson , 113 Idaho 411, 413, 744 P.2d 795, 797 (Ct. App. 1987). If he does so, the State may avoid the granting of the motion by showing prejudice would result if the plea were withdrawn. Flowers , 150 Idaho at 571, 249 P.3d at 370. The defendant’s failure to present and support a plausible reason will dictate against granting withdrawal, even absent prejudice to the prosecution. State v. Dopp , 124
Idaho 481 , 485, 861 P.2d 51, 55 (1993). The good faith, credibility, and weight of the defendant’s assertions in suppor t of his motion to withdraw his plea are matters for the trial court
to decide. Hanslovan , 147 Idaho at 537, 211 P.3d at 782

. Anderson argues he should have been allowed to withdraw his guilty plea given the combination of the pressure exerted by his wife and his “ severe depression” at the time
, which rendered his plea involuntary or amounted to just reason to withdraw the plea. In regard to the
former reason
, which he asserted in his initial motion to withdraw his plea , Anderson stated in an affidavit th at the day prior to entering his plea, he spoke with his wife and explained to her that
he was “ fighting for my life.” In response, Anderson stated his wife told him to “ ‘stop trying to

save my life’ and that I was harming our children.” Anderson further indicated that his wife

“ made it absolutely clear that she wanted me to plead guilty.” “ As a result of hearing my wife tell me that she did not want me to live anymore,” Anderson stated in the affidavit, “ I was completely devastated mentally and emotionally” and “ decided that I was going to plead guilty so I could fulfill my wife’s wishes and die in prison.” Anderson averred that at the change of plea hearing, he was “ distraught” over what his wife had said and therefore answered the judge’s questions in a manner to expedite the judge accepting the plea rather than being truthful. It was a week later, Anderson asserted, that he “ began to truly reflect upon and understand” what he had
done and realized he “ had acted in haste, and while under the influence of the pain and grief caused by what my wife had said to me.” The district court denied the motion based on the
well

- established rule that anxiety and pressure from a defendant’s family does n ot constitute impermissible coercion. See Hanslovan
, 147 Idaho at 537

- 38, 211 P.3d at 782

- 83 (noting that

“ anxiety and pressure from the defendant’s family situation do not constitute impermissible coercion”); State v. Nath , 141 Idaho 584, 586, 114 P.3d 1 42, 144 (Ct. App. 2005) (rejecting the defendant’s argument that his guilty plea was involuntary because pleading guilty was the only option that would allow him to be rele ased to care for family members)

.5 In his motion to reconsider the district court’s denial of his motion to withd raw his plea,
Anderson asserted he was “ severely depressed” after talking to his wife, including when he entered his guilty plea. He argued the district court did not adequately question him as to his
mental and emotional st a te and the plea was not voluntarily made because he “ was under undue mental duress and severe depression.” In an o ral ruling rejecting the motion
, the district court noted that although the issue of depression was not specifically raised in the first motion to withdraw the plea, “ the reality is that, in effect, [it] was considered by the court when the defendant was claiming that he was of such diminished capacity tha t he was unduly influenced by a family member.” On this basis, the court surmised that the analysis set forth in its initial memorandum decision denying Anderson’s motion to withdraw his guilty plea was applicable to
the motion to reconsider. On appeal, Anderson concedes that family pressure, alone, has been found insufficient to render a guilty plea involuntary, but contends that this pressure i n combination with his asserted depression constituted impermissible coercion that amounted to a constitutiona lly involuntary plea or, at least, amounted to a ju st reason to withdraw his plea. We address the constitutional
issue first. Determining whether a plea was entered knowingly and intelligently involves a
three

- part inquiry: (1) whether the defenda nt’s plea was voluntary in the sense that he understood the nature of the charges and was not coerced; (2) whether the defendant knowingly and intelligently waived his rights to a jury trial, to confront his accusers, and to refrain from incriminating hims elf; and (3) whether the defendant understood the consequences of pleading guilty. Dopp , 124 Idaho at 484, 861 P.2d at 54 ; State v. Carrasco , 117 Idaho 295, 297, 787 P.2d 281, 283 (1990). On appeal, Idaho law requires that voluntariness of the guilty ple a and waiver must be reasonably infer red from the record as a whole. Dopp , 124 Idaho at 484, 861 P.2d at 54;
Carrasco , 117 Idaho at 300, 787 P.2d at 286

. The defe ndant has the burden of proving the plea should be withdrawn. Carrasco , 117 Idaho at 298, 787 P.2d at 284 ; State v. Rose , 122 Idaho 555, 559, 835 P.2d 1366, 1370 (Ct. App. 1992)

. Failure to present and support a plausible reason, even absent prejudice to the prosecution, will weigh against granting withdrawal. Rose , 122 Idaho at 559, 835 P.2d at 1370; Rodriguez , 118 Idaho at 959, 801 P.2d at 1310. Additionally, as noted above, t he good faith, credibility, and weight of the defendant’s assertions in support of his motion to withdraw his plea6 are matters for the trial court to decide. Hanslova n , 147 Idaho at 537, 211 P.3d at 782 . Here, in response to Anderson’s motion to reconsider, the district court found Anderson was not of such

“ diminished capacity” that his plea was rendered involuntary. This finding is supported by the
record. Anderson presented no evidence, aside from his personal assertions, that he was suffering from depression such that he was not competent to ren der a voluntary plea. Although Anderson alleged he was hospitalized in a mental facility for three days following a suic ide attempt just prior to his arrest, he presented no evidence that his mental health was still compromised six months later when he entered his plea, let alone that it was compromised to the degree that it rendered his plea involuntary. Furthermore, d esp ite his hospitalization, at the hearing on An derson’s motion to reconsider
, defense counsel admitted that Anderson had not been diagnosed with depression or any other mental disorder or prescribed any medication by the time of the guilty plea hearing. Nor did Anderson inform the district court of any mental or emotional issues during the court’s lengthy inquiry at his change of plea hearing. Based on this record, the district court did not abuse its discretion by not accepting Anderson’ s unsupported

asser tions that he was suffering from depression that rose to a level r endering his plea involuntary. Given that family pressure alone is insufficient to prove coercion, and that the district court acted within its discretion in determining Anderson’s asserted depression did not diminish his capacity to enter a guilty plea, we also determine the district court did not abuse its discretion in rejecting Anderson’s contention that the combination of these asserted factors rendered his guilty plea unconstitutionall y involuntary. For similar reasons, Anderson has also not shown that the district court abused its discretion in determining that the above factors did not constitute other just reason for withdrawal of his plea. As explained above
, the weight of the defendant’s assertions in support of his motion to withdraw his plea are matter s for the trial court to decide, Hanslovan , 147 Idaho at 537, 211 P.3d at 782 , and here, the district court did not regard Anderson’s assertion of depression as rising to the le vel of diminishing his capacity. In addition, the district court indicated it reviewed the recording of Anderson’s alleged coercive conversation with his wife
and articulated its contents in the memorandum , concluding it did not constitute impermissible

c oercion. That family pressure does not amount to impermissible coercion is clearly supported7 by Idaho law and the district court was free to disregard Anderson’s assertion in this regard

. 2 Even had the district court given credence to Anderson’s assertio n that he was under significant mental distress from the combination of his asserted depression and his family situation when entering the plea, it would not require a finding of just reason to withdraw the plea. See Dopp , 124 Idaho at 483

- 86, 861 P.2d at 53

- 56 ( affirming the denial of a motion to withdraw a guilty plea even though a defendant was under extreme emotional stress prior to the plea entry ); State v.
Hawkins , 117 Idaho 285, 288, 787 P.2d 271, 274 (1990) (affirming the district court’s denial of the defendant’s motion to withdraw his guilty plea even where a psychiatrist testified that the defendant’s decision making process when pleading guilty was significantly influenced by the defendant’s emotional condition and depressed mood). T he district court did not err in determining that these factors, even when considered together, did not amount to just cau se for withdrawal of the plea.
B. Sentence Review
Anderson also contends the district court abused its discretion by imposing a unified forty

- year sentence, with fifteen years determinate
, upon his guilty plea to lewd conduct with a sentencing enhancement for b eing a repeat sexual offender. Specifically, he contends the sentence is excessive given any view of the facts because the district cour t did not give adequate consideration to the relevant mitigating factors. An appellate review of a sentence is based on an abuse of discretion standard. State v.
Burdett , 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illega l,
the a ppellant has the burden to show it is unreasonable, and thus a clear abuse of discretion.
State v. Brown , 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such an abuse of discretion if it is shown to be unreasonable upon th e facts of the case. State v. Nice , 103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it

2 In arguing that the written and recorded conversations in the record between Anderson and his wife “do not reveal any overbearing influence by Anderson’s wife on Anderson’s decision

- making that would justify the withdrawal of his plea,” the State points out there were actually several instances contained in the record where Anderson took steps to persuade his wife to act in his favor. For example, while in pretrial custody, Anderson wrote a letter asking his wife to “fight to con ceal the truth from [the State]” and to tell his attorney that his daughters were “determined to withdraw their testimony and that they want to sign a deposition [sic] to the fact claiming what they said against me is not true.” As part of the plea agreem ent, the State agreed not to file a charge of intimidation of a witness against Anderson for sending this letter.8 appears at the time of sentencing that confinement is necessary “ to accomplish the primary objective of protecting society and t o achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a given case.” State v. Toohill , 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982 ). Where an appellant contends the sentencing court imposed an

exces sively harsh sentence, we conduct an independent review of the record, having regard for the nature of the offense, the character of the offender, and the protection of th e public interest.
State v. Reinke , 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App . 1982). When reviewing the length of a sentence, we consider the defendant’s entire sentence. State v. Oliver , 144 Idaho 722, 726, 170 P.3d 387, 391 (2007). On appeal, Anderson contends the district court did not adequately consider two mitigating fac tors: Anderson’s “ successful[]” military service from 1987 to 1996 and his mental health issues, namely his asserted depression. As the State points out, bec ause Anderson pled guilty to the sentencing enhancement, the district court was required to impos e a minimum determinate sentence of fifteen years. Thus, Anderson may only challenge the district court’s imposition of the forty

- year indeterminate portion.
In deciding to impose a significant indeterminate term of incarceration, the district court

m entioned several relevant co n siderations. First the court noted that after Anderson’ s first lewd
conduct conviction in 1998 , he was given the opportunity to be rehabilitated, but yet he

re offended with two of his other daughters. In addition, the court n oted it was personally convinced Anderson was guilty of the offense, but Anderson’s defense was essentially to “ call[] [his] daughters liars,” which was detrimental to their recovery from the incidents. The court noted that Anderson primarily thinks of hi mself and had never apologized to his family or expressed any remorse. Given the fact that Anderson had “ essentially sexually abused three of [his] biological daughters,” the court determined that imposition of a significant term of
indeterminate incarcer ation to follow the fifteen years determinate was required to ensure supervision of Anderson in the community should he be released. The State points out that Anderson’s sexual victimization of his daughters dates back to at least 1996. In 1998, Anderso n confessed to abusing his oldest daughter and indicated the abuse bega n when she was approximately two and a half years old. A fter A nderson pled guilty
to lewd conduct for this incident, he completed sexual offender treatment and a “ strict protection pla n” was put into place upon his return to live at the residence with his daughters. Despite this9 treatment and the pr ecautions taken in his home , Anderson began sexually abusing his middle daughter within two to three years of satisfying his prior lewd conduct sentence. He began abusing his youngest daughter as well. When charged in this case
, Anderson attempted to
influence his wife and daughte rs to cover up his criminal behavior. Given the nature of the
crime s , the fact that Anderson reoffended even after receiving sexual offender treatment and th en attempted to conceal his actions when caught, Anderson fails to carry his burden to show this

s entence is excessive even when his military service and asserted mental health issues are taken
into consideration. The district court did not abuse its sentencing discretion by imposing a forty

- year indeterminate term of incarceration

. III.
CONC LUSION
Anderson has not shown the district court erred by determining that pressure from Anderson’s wife and his asserted depression did not render his plea involuntary or constitute a just reason for allowing withdrawal of the plea. Nor has Anderson sho wn that the district court abused its discretion in imposing sentence. Anderson’s judgment of conviction and sentence are
affirmed. Judge GRATTON and Judge MELANSON CONCUR.