What must a court consider before permitting withdrawal of a guilty plea?

Guilty Plea

Stevenson v. State (Nev. Supreme Ct. – Aug. 13, 2015)

NRS 176.165 allows a defendant who has pleaded guilty, but not been sentenced, to petition the district court to withdraw his plea. The issue is whether a 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.

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.

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. at 718, 30 P.3d 1123 (2001), finding that his plea was entered into knowingly, voluntarily, and intelligently. Stevenson appealed.

Stevenson argued that Crawford’s exclusive focus on whether the plea was knowing, voluntary, and intelligent lacked foundation in NRS 176.165. He pointed out that, before Crawford, the Nevada Supreme Court had interpreted NRS 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.

The Nevada Supreme Court explained in this case that in order to resolve Stevenson’s contention, it was necessary to understand how the court’s interpretation of NRS 176.165 had evolved over time. In relevant part, NRS 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. The court first outlined these circumstances shortly after NRS 176.165 was enacted. In State v. Second Judicial Dist. Court (Bernardelli), 85 Nev. 381, 455 P.2d 923 (1969), 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, the court looked to federal courts for guidance, recognizing that NRS 176.165 was modeled after an almost identical federal rule, Fed. R. Crim. P. 32(d). Relying on Gearhart v. United States, 272 F.2d 499 (D.C. Cir. 1959), the court 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.

The Court further explained that in cases subsequent to Bernardelli, the court did not explain what constituted a fair and just reason sufficient to permit withdrawal of a plea. Instead, the court 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, the Court believed that in the past, it was not always careful to explain the test it was applying, and a discussion of whether the plea was validly entered began to creep into its analysis. This confusion came to a head in Crawford, when, for the first time, the court focused the fair and just analysis solely upon whether the plea was valid, holding that to 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. Since Crawford, the court has 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, the court has refused to permit withdrawal of pleas that were valid even if the defendant presented an otherwise fair and just reason for withdrawing his plea.

The Court in this case then considered whether the withdrawal standard announced in Crawford was supported by NRS 176.165.

The Court again reiterated that NRS 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. 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. But, under either view, withdrawal was permitted for reasons other than merely whether a plea was knowing, voluntary, and intelligent. More recently, federal courts have expressly rejected the notion that the fair and just analysis turns upon the validity of the plea.

Thus, the Court noted that the statement in Crawford which focuses on the fair and just analysis solely upon whether the plea was knowing, voluntary, and intelligent was more narrow than contemplated by NRS 176.165. The Court, therefore, disavowed Crawford’s exclusive focus on the validity of the plea and affirmed 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.

Having 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, the Court turned to the reasons Stevenson had given as to why withdrawal was warranted. The crux of Stevenson’s argument in the district court 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. The Court explained that it must give deference to these findings so long as they are supported by the record. Based on these findings, the Court found that withdrawal was not warranted on this ground.

The Court found that 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, unconvincing. The Court explained that it 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. Moreover, time constraints and pressure from interested parties exist in every criminal case, and there was no indication in the record that their presence here prevented Stevenson from making a voluntary and intelligent choice among the options available.

Finally, the Court rejected 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 contradicted 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. The Court explained that, Stevenson relied upon the uncertainty surrounding the video as leverage to negotiate an extremely favorable plea despite the apparently strong evidence against him.

Considering the totality of the circumstances, the Court concluded that Stevenson failed to present a sufficient reason to permit withdrawal of his plea. The Court explained that by 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.

Visit the Nevada Appellate Report for more legal news.

 

Leave a Reply

Your email address will not be published. Required fields are marked *