Joseph Stevenson was
charged with numerous offenses relating
to his sexual attacks of three women between 2007 and 2009. The evidence
against him appeared to be strong, consisting of identifications by the women
and a DNA match. The cases were consolidated, and Stevenson chose to represent
himself.
As trial approached, he attempted to
obtain a surveillance video of the Cheetahs gentlemen's club parking lot where
one of the women was sexually assaulted. When it became clear that the
State had lost the video, Stevenson moved to dismiss the charges. The district
court denied his motion on March 9, 2011.
On November 9, shortly before trial was
set to begin, Stevenson informed the district court that Cheetahs still had the
actual machine that the club had used to record surveillance footage: According
to Stevenson, the manager had unplugged the machine when the video had been
requested, but it required a password that she did not know and therefore she
could not retrieve the recording. Stevenson argued that the video should exist
on the machine's hard drive and he would not be ready for trial until he saw
it. The parties decided that a computer technician would attempt to `break
into’ the machine and access the video overnight.
The next day, without any explanation, Stevenson
pleaded guilty to two counts of attempted sexual assault.
State v. Stevenson,
2015 WL 4768841 (Supreme Court of Nevada 2015).
The Supreme Court goes on to explain that on
February 21, 2012, before sentencing, Stevenson
moved to withdraw his plea on the ground that he had been misled about the
existence of the video. According to Stevenson, he had only pleaded guilty
because his court-appointed standby counsel told him that the video could not
be viewed unless the machine was sent back to the company that made it, which
would take several months and could erase the video.
But after he pleaded guilty, Stevenson
allegedly learned that the video could be extracted in mere days and there was
no risk of damaging it in the process. The district court conducted an
evidentiary hearing regarding this claim where Stevenson's investigator, the
computer technician, and Cheetahs' manager testified. After their testimony,
the district court denied Stevenson's motion pursuant to Crawford v.
State, 117 Nev. 718, 30 P.3d 1123 (Supreme
Court of Nevada 2001), finding that his plea was entered into
knowingly, voluntarily, and intelligently.
State v. Stevenson,
supra.
In his appeal to the Supreme Court, Stevenson argued that Crawford v. State’s
exclusive focus on whether the plea was
knowing, voluntary, and intelligent lacks foundation in [Nevada Revised Statutes] 176.165. He points out that before Crawford, this court
had interpreted §176.165 to permit the withdrawal of a guilty plea
before sentencing for any `fair and just’ reason, which included reasons beyond
just whether the plea was validly entered. See State
v. Second Judicial District Court (Bernardelli), 85
Nev. 381, 455 P.2d 923, 926 (Nevada
Supreme Court 1969). (`The granting
of the motion to withdraw one's plea before sentencing is proper where for any
substantial reason the granting of the privilege seems fair and just’); . . . see
also Mitchell v. State, 109 Nev. 137, 848 P.2d 1060 (Nevada Supreme Court 1993) (holding
that the appellant presented a fair and just reason to withdraw her plea where
she had a credible claim of innocence, the State would not be prejudiced, and
only a minor amount of money was involved).
State v. Stevenson,
supra.
The Supreme Court went on to explain that in order to
resolve Stevenson's contention, it is
necessary to understand how this court's interpretation of § 176,165 has
evolved over time. In relevant part, [Nevada Revised Statutes] 176.165 provides
that a defendant who has pleaded guilty may petition the court to withdraw his
plea `before sentence is imposed or imposition of sentence is suspended.’ Although
the statute makes clear that a defendant can move to withdraw
his plea, it says nothing about the circumstances in which his
motion should be granted.
This court first outlined these
circumstances shortly after §176.165 was enacted. In Bernardelli, the
defendant argued that the district court abused its discretion by denying his motion
to withdraw his plea. Because the statute was silent regarding the issue,
we looked to federal courts for guidance, recognizing that §
176.165 was modeled after an almost identical federal rule, Federal Rule of Criminal Procedure 32(d). . . . Relying on Gearhart v. U.S., 272
F.2d 499 (U.S. Court of Appeals for the D.C. Circuit 1959), we held that a
district court may grant a motion to withdraw a guilty plea before sentencing `where
for any substantial reason the granting of the privilege seems “fair and just.”’ Bernardelli,
supra, 85 Nev. at 385, 455 P.2d at 926.
In cases subsequent to Bernardelli, we
did not explain what constituted a fair and just reason sufficient to permit
withdrawal of a plea. Instead, we acted on a case-by case basis and considered
the totality of the circumstances to determine whether allowing withdrawal
would be fair to the defendant and the State. But we were not always careful to
explain the test we were applying, see Jezierski v. State, 107
Nev. 395, 812 P.2d 355 (Nevada Supreme Court 1991) (reversing based upon `public policy’
considerations); Mitchell v. State, supra (reversing without mentioning the `fair and just’ language), and a
discussion of whether the plea was validly entered began to creep into our analysis,
Mitchell v. State, supra (explaining that the defendant bore the
burden of demonstrating that her plea `was not entered knowingly and intelligently’
(quoting Bryant v. State, 102 Nev. 268, 721 P.2d 364 (Nevada
Supreme Court 1986))).
This confusion came to a head in Crawford, when,
for the first time, we focused the `fair and just’ analysis solely upon
whether the plea was valid, holding that `[t]o determine whether the defendant
advanced a substantial, fair, and just reason to withdraw a plea, the district
court must . . . determine whether the defendant entered the plea voluntarily,
knowingly, and intelligently.’ Crawford
v. State, supra. Since Crawford, we have repeatedly observed
that the only relevant question when considering whether a defendant should be
permitted to withdraw his plea before sentencing is whether the plea was
entered into knowingly, voluntarily, and intelligently. In applying this
standard, we have refused to permit withdrawal of pleas that were valid even if
the defendant presented an otherwise fair and just reason for withdrawing his
plea.
State v. Stevenson,
supra (emphasis in the original).
The Supreme Court then took up the issue as to whether the
withdrawal standard announced in Crawford is
supported by §176.165. `[Q]uestions of statutory construction, including the
meaning and scope of a statute, are questions of law, which this court reviews
de novo.’ City of Reno v. Reno Gazette–Journal, 119 Nev. 55, 63 P.3d
1147 (Nevada Supreme Court 2003). `When
Nevada legislation is patterned after a federal statute or the law of another
state, it is understood that the courts of the adopting state usually follow
the construction placed on the statute in the jurisdiction of its inception.’ Advanced Sports Info., Inc. v. Novotnak, 114
Nev. 336, 956 P.2d 806 (1998) (internal quotation marks omitted).
As we observed in Bernardelli ,§ 176.165 was modeled
after Federal Rule of Criminal Procedure 32(d). Around the time that the
statute was enacted, federal courts interpreting Rule 32(d) allowed a
defendant to withdraw his guilty plea `”if for any reason the granting of the privilege
seems fair and just.”’ Gearhart v. U.S., 272 F.2d 272 F.2d (U.S. Court of Appeals for the D.C. Circuit
1999) (quoting Kercheval v. U.S. 274 U.S. 220 (U.S. Supreme Court 1927)); see
also U.S. v. Stayton, 408 F.2d 559 (U.S. Court of Appeals for the 3d Circuit 1969) (`In weighing motions for withdrawal of a guilty plea
before sentencing, the test to be applied by the trial courts is fairness and
justice’).
What constituted a fair and just reason
was unsettled, and a conflict eventually emerged between courts who held that
withdrawal should be permitted in almost every circumstance and courts who held
that the defendant must first present a plausible ground for withdrawal.
Federal Rule of Criminal Procedure 32(d) (advisory committee's note (1983)). But under either view, withdrawal was permitted for reasons other
than merely whether a plea was knowing, voluntary, and intelligent. See,
e.g., Kadwell v. U.S., 315 F.2d 667 (U.S. Court of Appeals for the 9th Circuit 1963) (`Rule 32(d) imposes no limitation upon the
withdrawal of a guilty plea before sentence is imposed, and such leave should
be freely allowed’). . . ; U.S. v. Sambro, 454 F.2d 918 (U.S. Court
of Appeals for the D.C. Circuit 1971) (`a judge may but need not allow
presentence withdrawal when the defendant establishes that there are
circumstances which might lead a jury to refuse to convict notwithstanding his
technical guilt of the charge. Or, a judge might allow withdrawal
because the defendant has become aware of some collateral consequences of conviction
which he wants to avoid’ (internal citation omitted)).
More recently, federal courts have
expressly rejected the notion that the “fair and just” analysis turns upon the
validity of the plea. U.S. v. Ortega–Ascanio, 376 F.3d 879 (U.S.
Court of Appeals for the 9th Circuit 2004). Thus, the statement in Crawford which
focuses the `fair and just’ analysis solely upon whether the plea was knowing,
voluntary, and intelligent is more narrow than contemplated by [Nevada Revised
Statutes § 176.165 We therefore disavow Crawford's exclusive
focus on the validity of the plea and affirm that the district court must
consider the totality of the circumstances to determine whether permitting
withdrawal of a guilty plea before sentencing would be fair and just.
State v. Stevenson,
supra (emphasis in the original).
The Supreme Court then explained that,
[h]aving determined that a district
court may grant a defendant's motion to withdraw his guilty plea before
sentencing for any reason where permitting withdrawal would be fair and just,
we turn now to the reasons Stevenson has given as to why withdrawal was
warranted.
The crux of Stevenson's argument below
as to why he should be allowed to withdraw his plea was that the members of his
defense team lied about the existence of the video in order to induce him to
plead guilty. The district court considered this contention and gave Stevenson
considerable leeway to demonstrate how he was lied to or misled. Stevenson
struggled to articulate a cohesive response, pointing instead to circumstances
which, viewed in context, were neither inconsistent nor suspicious.
After considering Stevenson's
arguments, as well as the testimony presented at the multiple evidentiary
hearings, the district court found that no one lied to Stevenson about the time
it would take to determine whether the video could be extracted or otherwise
misled him in any way. The district court also found that Stevenson's testimony
in this regard was not credible. We must give deference to these findings so
long as they are supported by the record, see Little v. Warden, 117
Nev. 845, 34 P.3d 540, (Nevada Supreme
Court 2001) (giving deference to factual findings made by the district
court in the course of a motion to withdraw a guilty plea), which they are.
Based on these findings, withdrawal was not warranted on this ground.
State v. Stevenson,
supra.
The court then went on to point out that
[s]imilarly unconvincing is Stevenson's
contention that he was coerced into pleading guilty based on the compounded pressures
of the district court's `erroneous’ evidentiary ruling regarding his motion to
suppress the video, standby counsel's pressure to negotiate a plea, and time
constraints.
We need not consider whether the lower
court's ruling regarding the video was correct, because even assuming it was not,
undue coercion occurs when `a defendant is induced by promises or threats which
deprive the plea of the nature of a voluntary act.’ Doe v. Woodford, 508
F.3d 563 (U.S. Court of Appeals for the 9th Circuit 2007). . . , not where a
court makes a ruling later determined to be incorrect, see
generally Brady v. U.S., 397 U.S. 742 (U.S. Supreme Court 1970) (`[A]
voluntary plea of guilty intelligently made in the light of the then applicable
law does not become vulnerable because later judicial decisions indicate that
the plea rested on a faulty premise’).
Moreover, time constraints and pressure
from interested parties exist in every criminal case, and there is no
indication in the record that their presence here prevented Stevenson from
making a voluntary and intelligent choice among the options available. See Doe
v. Woodford, 508 F.3d. 563 (U.S.
Court of Appeals for the 9th Circuit 2007) (`The test for
determining whether a plea is valid is whether the plea represents a voluntary
and intelligent choice among the alternative courses of action open to the
defendant’); Miles v. Dorsey, 61 F.3d 1459 (U.S. Court of Appealsfor the 10th Circuit 1995) (`Although deadlines, mental anguish,
depression, and stress are inevitable hallmarks of pretrial plea discussions,
such factors considered individually or in aggregate do not establish that [a
defendant's] plea was involuntary’).
State v. Stevenson,
supra.
Next, the Supreme Court took up the facts in this case and
the issue of the plea,
[f]inally, we reject Stevenson's implied contention
that withdrawal was warranted because he made an impulsive decision to plead
guilty without knowing, definitively, whether the video could be viewed.
Stevenson did not move to withdraw his
plea for several months, which contradicts his suggestion that he entered his
plea in a state of temporary confusion while in the throes of discovering that
the video was not easily accessible. See U.S. v. Alexander, 948
F.2d 1002 (U.S. Court of Appeals for the 6th Circuit 1991) (explaining
that one of the goals of the fair and just analysis `is to allow a hastily
entered plea made with unsure heart and confused mind to be undone, not to
allow a defendant to make a tactical decision to enter a plea, wait several
weeks, and then obtain a withdrawal if he believes that he made a bad choice in
pleading guilty’). . . ; U.S. v. Barker, 514 F.2d 208 (U.S. Court
of Appeals for the D.C.Circuit 1975) (`A swift change of heart is itself
strong indication that the plea was entered in haste and confusion’).
Most importantly, Stevenson relied upon
the uncertainty surrounding the video as leverage to negotiate an extremely
favorable plea despite the apparently strong evidence against him. See U.S.
v. Ensminger, 567 F.3d 587 (U.S. Court of Appeals for the 9th Circuit 2009) (`The
guilty plea is not a placeholder that reserves [a defendant's] right to our
criminal system's incentives for acceptance of responsibility unless or until a
preferable alternative later arises. Rather, it is a grave and solemn act,
which is accepted only with care and discernment’). . . .
State v. Stevenson,
supra.
The Court of Appeals therefore held that
[c]onsidering the totality of the
circumstances, we have no difficulty in concluding that Stevenson failed to
present a sufficient reason to permit withdrawal of his plea. Permitting him to
withdraw his plea under the circumstances would allow the solemn entry of a
guilty plea to `become a mere gesture, a temporary and meaningless formality
reversible at the defendant's whim.’ U.S. v. Barker, supra. This we cannot
allow.
State v. Stevenson,
supra.
And in a final footnote at the end of its opinion, the court
noted that Stevenson
urges us to consider his `colorable
claim of innocence’ when evaluating whether he presented a fair and just reason
for withdrawing his plea. See Woods v. State, 114 Nev. 468,
958 P.2d 91 (Nevada Supreme Court 1998). Stevenson fails to support his
contention that he has a colorable claim of innocence.
State v. Stevenson, supra.
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