State v. Rosa

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-MAY-2022
09:01 AM
Dkt. 52 SO

NO. CAAP-XX-XXXXXXX

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-XX-XXXXXXX)

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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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-XX-XXXXXXX, 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-XX-XXXXXXX 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-XX-XXXXXXX was pending is
incorrect. In 1CPC-XX-XXXXXXX, 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-XX-XXXXXXX 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-XX-XXXXXXX.

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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-XX-XXXXXXX, 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-XX-XXXXXXX.
In 1CPC-XX-XXXXXXX, 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 1CPC-
XX-XXXXXXX. 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-XX-XXXXXXX 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-XX-XXXXXXX. The same day, the Circuit Court then
reconsidered the denial of counsel's request to withdraw in 1CPC-
XX-XXXXXXX and ordered new counsel be appointed in both cases.
On May 26, 2020, a Judgment of Conviction and Sentence was
entered in 1CPC-XX-XXXXXXX.
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-XX-XXXXXXX 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-XX-XXXXXXX.
Rosa's claim that he was assured by his prior counsel
in 1CPC-XX-XXXXXXX 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-XX-XXXXXXX 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-XX-XXXXXXX, 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-XX-XXXXXXX. 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 English-
language 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: /s/ Lisa M. Ginoza
Chief Judge
Walter J. Rodby,
for Defendant-Appellant /s/ Katherine G. Leonard
Associate Judge
Loren J. Thomas,
for Plaintiff-Appellee /s/ Karen T. Nakasone
Associate Judge

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