State v. Livingston

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 49498

STATE OF IDAHO, )
) Filed: October 19, 2023
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
SCOTT ALLEN LIVINGSTON, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)

Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. Hon. Cynthia K.C. Meyer, District Judge.

Judgment of conviction for possession of a controlled substance, affirmed.

Erik R. Lehtinen, Interim State Appellate Public Defender; Kimberly A. Coster,
Deputy Appellate Public Defender, Boise, for appellant.

Hon. Raúl R. Labrador, Attorney General; John C. McKinney, Deputy Attorney
General, Boise, for respondent.
________________________________________________

MELANSON, Judge Pro Tem
Scott Allen Livingston appeals from his judgment of conviction following his plea of guilty
to possession of a controlled substance. Livingston argues that the district court abused its
discretion when it denied his motion to withdraw his guilty plea. For the reasons set forth below,
we affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A vehicle driven by Livingston was stopped by a police officer after the officer observed
the vehicle drive onto a public street without stopping before the sidewalk. During the stop,
according to police reports, a drug detection dog alerted on the vehicle. A subsequent search of
the vehicle revealed methamphetamine, heroin, marijuana, and drug paraphernalia. Livingston

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was charged with possession of heroin and being a persistent violator. On July 15, 2021,
Livingston, who was represented by an attorney, entered a plea of guilty to an amended charge of
possession of methamphetamine pursuant to a plea agreement with the other charges, including
the persistent violator enhancement, to be dismissed. Pursuant to a negotiated plea agreement the
State agreed to recommend a sentence not to exceed retained jurisdiction. The agreement also
provided that Livingston would waive his right to request withdrawal of his guilty plea under
I.C.R. 331 and that, if he failed to appear in court, the State would no longer be bound by the
agreement. After the guilty plea, a presentence investigation report (PSI) was ordered by the
district court and filed on October 1, 2021. Despite Livingston’s criminal history, including
several felonies, the PSI investigator recommended retained jurisdiction. On November 2, 2021,
Livingston failed to appear for sentencing and a bench warrant was issued. His attorney (an
attorney different from the one who represented him at the entry of his guilty plea) filed a motion
to quash the warrant and reinstate bond, but Livingston again failed to appear for his rescheduled
sentencing hearing on November 23, 2021, so the bench warrant remained in effect. A few days
later, Livingston was arrested on the bench warrant and was arraigned the following day. On
December 6, 2021, Livingston, through his new attorney, filed a motion to withdraw his guilty
plea. Livingston asserted that there was just reason to withdraw his plea because he wanted to
challenge the basis of the stop and the drug dog search but was told that his only option was to
plead guilty. He contended that he did not commit a traffic infraction (the reason for the stop),
that the stop was unlawfully prolonged, and that the drug dog did not alert on his vehicle. After a
hearing, the district court denied his motion. Livingston appeals the denial of his motion to
withdraw his guilty plea, arguing only that the drug dog did not alert on his vehicle rendering the
subsequent search unconstitutional.
II.
ANALYSIS
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. Freeman, 110 Idaho 117, 121, 714

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Neither party has raised this issue on appeal. Livingston was also informed of and
acknowledged this waiver during the plea colloquy.

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P.2d 86, 90 (Ct. App. 1986). When a trial court’s discretionary decision is reviewed on appeal,
the appellate court conducts a multi-tiered inquiry to determine whether the trial court:
(1) correctly perceived the issue as one of discretion; (2) acted within the boundaries of such
discretion; (3) acted consistently with any legal standards applicable to the specific choices before
it; and (4) reached its decision by an exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429
P.3d 149, 158 (2018).
Appellate review of the denial of a motion to withdraw a plea is limited to determining
whether the district court exercised sound judicial discretion as distinguished from arbitrary action.
Id. Also of importance is whether the motion to withdraw a plea is made before or after sentence
is imposed. Idaho Criminal Rule 33(c) provides that a plea may be withdrawn after sentencing
only to correct manifest injustice. The stricter standard after sentencing is justified to ensure that
the accused is not encouraged to plead guilty to test the weight of potential punishment and
withdraw the plea if the sentence were unexpectedly severe. Freeman, 110 Idaho at 121, 714 P.2d
at 90. Accordingly, in cases involving a motion to withdraw a plea after sentencing, appellate
review is limited to reviewing the record and determining whether the trial court abused its sound
discretion in determining that no manifest injustice would occur if the defendant was prohibited
from withdrawing his or her plea. State v. Lavy, 121 Idaho 842, 844, 828 P.2d 871, 873 (1992).
However, a less rigorous standard applies to a motion made before sentencing. State v.
Ballard, 114 Idaho 799, 801, 761 P.2d 1151, 1153 (1988); State v. Ward, 135 Idaho 68, 72, 14
P.3d 388, 392 (Ct. App. 2000). Nevertheless, withdrawal of a guilty plea before sentence is
imposed is not an automatic right. State v. Dopp, 124 Idaho 481, 485, 861 P.2d 51, 55 (1993);
Ward, 135 Idaho at 72, 14 P.3d at 392. A defendant seeking to withdraw a guilty plea before
sentencing must show a just reason for withdrawing the plea. Dopp, 124 Idaho at 485, 861 P.2d
at 55; Ward, 135 Idaho at 72, 14 P.3d at 392. The just reason standard does not require that the
defendant establish a constitutional defect in his or her guilty plea. State v. Henderson, 113 Idaho
411, 413, 744 P.2d 795, 797 (Ct. App. (1987). Once the defendant has met this burden, the State
may avoid a withdrawal of the plea by demonstrating the existence of prejudice to the State. Dopp,
124 Idaho 485, 861 P.2d at 55; Ward, 135 Idaho at 72, 14 P.3d at 392. The defendant’s failure to
present and support a plausible reason will dictate against granting withdrawal, even absent
prejudice to the prosecution. Dopp, 124 Idaho at 485, 861 P.2d at 55; Ward, 135 Idaho at 72, 14

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P.3d at 392. The good faith, credibility, and weight of the defendant’s assertions in support of a
motion to a withdraw plea are matters for the trial court to decide. State v. Hanslovan, 147 Idaho
530, 537, 211 P.3d 775, 782 (Ct. App. 2008); see also State v. Acevedo, 131 Idaho 513, 516, 960
P.2d 196, 199 (Ct. App. 1998). The district court is encouraged to liberally grant its discretion in
granting a motion to withdraw guilty plea. State v. Wyatt, 131 Idaho 95, 97, 952 P.2d 910, 912
(Ct. App. 1998): Henderson, 113 Idaho at 414, 744 P.2d at 798. However, even when the motion
is presented before sentencing, if it occurs after the defendant has learned of the content of the PSI
or has received other information about the probable sentence, the district court may temper its
liberality by weighing the defendant’s apparent motive. State v. Arthur, 145 Idaho 219, 222, 177
P.3d 966, 969 (2008); State v. Mayer, 139 Idaho 643, 647, 84 P.3d 579, 583 (Ct. App. 2004).
Because Livingston’s motion was filed prior to sentencing, he must show a just reason to
withdraw his guilty plea. The Idaho Supreme Court has explained application of the just reason
standard as follows:
The determination whether a defendant has shown a just reason for withdrawal of
the plea is a factual decision committed to the discretion of the trial court. Given
the fact-intensive nature of the inquiry, this Court has not previously attempted to
define what constitutes a “just reason” for withdrawal of a guilty plea. Among
other factors, the trial court should consider: (1) whether the defendant has credibly
asserted his legal innocence; (2) the length of delay between the entry of the guilty
plea and the filing of the motion; (3) whether the defendant had the assistance of
competent counsel at the time of the guilty plea; and (4) whether the withdrawal of
the plea will inconvenience the court and waste judicial resources.
State v. Sunseri, 165 Idaho 9, 14, 437 P.3d 9, 14 (2018).
The first Sunseri factor involves a credible assertion of innocence. Livingston asserts that
he is innocent and argues that, in order for a drug dog to give a valid alert, it must sit and that the
dog in this case did not sit. He asserts that he has a potentially successful argument that the
evidence seized from the vehicle should be suppressed because there was no positive alert for
drugs by the dog. Livingston testified at the hearing on his motion to withdraw his guilty plea that
he told his first attorney that the drug dog “didn’t seem to have hit on [Livingston’s] car at all” and
that he had “asked one of the officers about it” and the officer “said [the dog] hit in a way that
[Livingston] would not notice.” Other evidence presented at the hearing on Livingston’s motion
included bodycam and dashcam videos. From those videos, the district court, ruling from the
bench, found that the dog did not sit. The district court went on to state that “what we don’t have

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today--and, again, it’s not a motion to suppress--we don’t have the full evidence. But we don’t
have evidence of what the dog’s final alert is, and so that’s--that’s problematic.” The district court
went on to state, “I can see where [defense counsel] would say ‘I think I can make a case out of
this.’ Particularly after the Howard case.”2 “But, nevertheless, it’s pretty incomplete at this point
in time. But there’s potential,3 I suppose, for a claim there with respect to the drug dog. There
may be other things that would come into play.”4 Livingston presented no evidence that the drug

2
The district court was referring to State v. Howard, 169 Idaho 379, 496 P.3d 865 (2021),
which was issued October 5, 2021, approximately three months after Livingston entered his guilty
plea. Howard involved a canine search of a car. The Idaho Supreme Court reversed a conviction
where evidence established that a drug dog was trained to sit or lie down when drugs were detected
but that the dog sometimes “froze” or looked back at his trainer for a reward before properly
indicating as he had been trained to do. The dog’s handler testified that, during the walk around
of the car, the dog was showing indications that the scent of a controlled substance was present in
the car and that the dog stopped and looked back at the handler for a reward and then put its nose
into the car through an open window before indicating (by sitting) as it was trained to do. The
Court held that the intrusion of the dog’s nose into the car without probable cause violated the
Fourth Amendment. As for the dog’s behavior before properly indicating, the Court reasoned that
it could not know from the evidence admitted whether the dog’s freezing and looking back at his
handler was a reliable indication that narcotics were present, and the Court could not determine
whether the handler’s subjective belief that the dog had detected narcotics was objectively
reasonable. The Court was careful to note that trial courts are not equipped to independently
interpret a dog’s behavior without objective evidence and that, without objective evidence bearing
on the reliability of a dog’s behavior, a court is left with little more than intuition about the
significance of that behavior and intuition is not evidence.
3
Although the district court found Livingston’s claim had “potential,” the standard requires
the argument to be “plausible.” Livingston makes no argument that a “potentially successful”
argument on a motion to suppress is the equivalent of a “plausible” argument on a motion to
suppress. The viability of Livingston’s argument rests on his attorney’s claim that a valid alert by
a drug dog requires the drug dog sit as the alert. Livingston presents no evidence to support this
assertion and, as such, fails to establish it is either a plausible or potentially successful argument.
4
The district court then went on to offer an apparent alternative rationale for its ruling. The
court noted that Livingston had admitted there might or might not be a “bong” in the vehicle in
response to police questioning after the search of his vehicle commenced which would have given
the officers probable cause to search. The district court stated that, “even if there hadn’t been a
valid dog alert, once someone says that there’s illegal paraphernalia in the car that would raise
probable cause for a search.” Since it is alleged that Livingston’s admission occurred after the
search began, he argues that probable cause must be based upon facts known at the time of the
search and that admissions flowing directly from an illegal search cannot be used in determining

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dog used in this case alerted by sitting. Livingston’s counsel argued that, in his experience, drug
dogs are trained to sit down when drugs are detected but argument of counsel is not evidence.
Absent such evidence Livingston has not shown that he has a just reason to withdraw his plea.
The second Sunseri factor is consideration of the delay between the entry of the plea and
the motion to withdraw the plea. There was a delay of nearly five months between Livingston’s
guilty plea and his motion to withdraw his plea. The delay was caused by Livingston’s repeated
failures to appear. His counsel told the district court that Livingston was “willing to admit that all
of the delays in this case so far are on him and not the state.” Significantly, because of Livingston’s
failures to appear, the State was no longer obligated to follow the agreed upon sentencing
recommendation of “not to exceed retained jurisdiction.” So, Livingston, because of his own acts,
was faced with the possibility of a harsher sentencing recommendation. Livingston’s motion came
after he had received the PSI report recommending retained jurisdiction. As the district court
stated, what Livingston showed the Court was “that he really has changed his mind. That he
doesn’t want any longer to stand on that guilty plea. That he wants to give it a shot. But that’s
not--not the reason, not a good reason, not a just reason for withdrawing a guilty plea.”
The third Sunseri factor requires a determination of whether the defendant had competent
counsel when the guilty plea was entered. Livingston’s second attorney admitted that the first
attorney was competent. The district court found Livingston’s first attorney was a “competent
attorney and everyone agrees. I think it is a matter of different advice.” The district court further
found that, “based on what I have in front of me, what I’ve been able to view, I don’t believe that
[first attorney] gave bad advice. Frankly I’m not saying that I think [second attorney] would be
giving bad advice either, but it is different advice.”
The fourth Sunseri factor involves a determination of whether the withdrawal of the plea
will inconvenience the trial court and waste judicial resources. The district court did not make any
specific findings in this regard, but the Sunseri factors are neither mandatory nor exclusive. The
district court did consider other factors. For example, the district court, prior to ruling on the

whether probable cause existed. While this is an accurate statement of the law, it is unavailing for
Livingston because the district court ruled that he failed to show that the dog did not alert. At
most, the alternative ruling is superfluous.

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motion, listened to an audio recording of the extensive and thorough plea colloquy “to confirm
what was in the court minutes, to confirm any tone of voice, any hesitancy, any questions, anything
that arose.” The district court noted, “I am asking Mr. Livingston the questions: Have you had
enough time with your attorney? Are you satisfied with the nature and quality of legal services
you’ve been provided?” Livingston answered yes to these questions. The district court stated that,
if Livingston had “a concern about the validity of the stop, that would have been the time to raise
that concern.” The district court also noted that there was no evidence that Livingston had asked
his attorney to do anything the attorney had not done.
The district court considered the Sunseri factors, as well as other evidence relevant to its
decision. The district court correctly perceived its decision as one of discretion, acted within the
boundaries of such discretion, acted consistently with the legal standards applicable to the specific
choices before it, and reached its decision by an exercise of reason. Livingston has failed to show
that the district court erred in denying his motion to withdraw his guilty plea.
IV.
CONCLUSION
The district court did not err in denying Livingston’s motion to withdraw his guilty plea.
Therefore, Livingston’s judgment of conviction for possession of a controlled substance is
affirmed.
Chief Judge LORELLO and Judge HUSKEY, CONCUR.

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