Withdrawing A Guilty Plea in Nevada Upon an Ineffective Assistance of Counsel Claim
Modifying a Sentence for a Term of Years In Prison Upon the Allegation the Sentence Was Illegal for Violating the 8th Amendment to the United States Constitution's Prohibition Against Cruel and Unusual Punishment
In 2010, client was convicted of Driving Under the Influence Causing Death, a felony. Defendant retained private counsel who advised that Defendant should wave her preliminary hearing and enter a plea of guilty for the offense charged. Pursuant to negotiations, the State retained the right to argue at rendition of sentence. During the plea bargaining stage, defense counsel advised defendant that because she was under the influence at the time of the accident and the Blood Alcohol Test was unassailable, defendant would likely be convicted at trial. Defense counsel failed to conduct any meaningful investigation aside from reviewing discovery procured from the state.
Furthermore, defendant met with defense counsel on only two occasions. Defense counsel further advised that proceeding with trial would prejudice defendant's chance at probation, which was likely should a plea of guilty be quickly entered. Consequently, defendant entered a plea of guilty and was ultimately sentenced to 8 to 20 years in prison, the maximum allowable under the law. At sentencing, defense counsel called no witnesses and argued, primarily, that defendant should not be incarcerated because he has a child that would be deprived of his father if he were imprisoned.
In fact, the State was required to prove that: 1) defendant was under the influence of alcohol, and 2) the fact that defendant was intoxicated proximately caused the accident that led to the victim's death. In other words, the State was required to prove beyond a reasonable doubt that defendant's inebriation substantially contributed to the accident. Thus, defendant was misinformed and, as a result, entered his plea unknowingly and involuntarily.
In addition, defendant's sentence was the maximum allowable by law despite the fact that defendant had no significant priors, aside from a 10 year old conviction for misdemeanor DUI. Moreover, the term of imprisonment was comparable to violent crimes such as robbery, attempted murder and kidnapping as well as socially repugnant crimes such as drug trafficking and sexual assault with a minor. Furthermore, the sentence was three times the sentence recommended by the State's Division of Parole and Probation in its Pre-sentence Investigation Report, which recommended 3-12 years in prison. Therefore, the sentence may be disproportionate to the crime in violation of the 8th Amendment to the United States Constiution.
The article below discussed at length the law applicable to the issues identified above.
When a Guilty Plea May Be Withdrawn
NRS 176.165 provides that a guilty plea may be withdrawn only before sentence is imposed or imposition of sentence is suspended. However, the statute also allows a defendant to withdraw his guilty plea after sentencing to correct manifest injustice. NRS 176.165. A motion to withdraw a plea of guilty is addressed to the discretion of the court.
State v. Adams, 94 Nev. 503, 581 P.2d 868, 1978 Nev. LEXIS 599 (1978). A motion to withdraw a plea in cases where a judgment of conviction has been entered is "incident to the proceeding in the trial court under Chapter 34" and as such exists independently from the post-conviction petition for a writ of habeas corpus. Hart v. State, 116 Nev. 558, 1 P.3d 969, 2000 Nev. LEXIS 76 (2000).
When a defendant brings a motion to withdraw a guilty plea, the trial court has a duty to review the entire record to determine whether the plea was valid; a district court may not simply review the plea canvass in a vacuum, conclude that it indicates that the defendant understood what she was doing, and use that conclusion as the sole basis for denying a motion to withdraw a guilty plea. Mitchell v. State, 109 Nev. 137, 848 P.2d 1060, (1993).
The Nevada Supreme Court has held that the failure to adequately inform the defendant of the consequences of his plea created a manifest injustice that may be corrected by setting aside the conviction and allowing the defendant to withdraw his guilty plea. Meyer v. State, 95 Nev. 885, 603 P.2d 1066, (1979), overruled in part,
Little v. Warden, 117 Nev. 845, 34 P.3d 540, (2001).
The Court has also held that whether or not probation is available is critical to the defendant's understanding of the consequences of his guilty plea; therefore, when an offense is not subject to probation, the district judge has a duty to insure that the record discloses that the defendant is aware of that fact. Aswegan v. State, 101 Nev. 760, 710 P.2d 83, (1985), overruled in part,
Little v. Warden, 117 Nev. 845, 34 P.3d 540, (2001). Otherwise, the district court's acceptance of a guilty plea is fatally defective.
In Warden, Nev. State Prison v. Craven, the trial court found that a defendant's plea of guilty was involuntary because he acted upon "an inference of probation" supplied by his attorney and thus allowed the defendant to withdraw his guilty plea. 91 Nev. 485, 537 P.2d 1198, (1975). There, the Nevada Supreme Court affirmed the trial court's findings. Id.
Although there is no statutory time limitation for bringing a motion to withdraw plea, the Nevada Supreme Court has ruled that imposition of some limitation on the motion is appropriate. Hart v. State, 116 Nev. 558, 1 P.3d 969 (Nev., 2000). NRS 176.165 provides that the district court may permit a defendant to withdraw a plea, after sentencing, only to "correct manifest injustice." Id. The Nevada Supreme Court has ruled that whether an "injustice" is "manifest" depends upon a variety of factors, including whether the State would suffer prejudice if the defendant is permitted to withdraw his or her plea.
Hart v. State, 116 Nev. 558, 1 P.3d 969 (Nev., 2000). Accordingly, the Nevada Supreme Court held that consideration of the equitable doctrine of laches is necessary in determining whether a defendant has shown "manifest injustice" that would permit withdrawal of a plea after sentencing. Id.
Application of the doctrine to an individual case may require consideration of several factors, including: (1) whether there was an inexcusable delay in seeking relief; (2) whether an implied waiver has arisen from the defendant's knowing acquiescence in existing conditions; and (3) whether circumstances exist that prejudice the State. See Buckholt v. District Court, 94 Nev. 631, 633, 584 P.2d 672, 673-74 (1978).
In short, the cases cited above stand for the proposition that ineffective assistance of counsel may amount to manifest injustice sufficient to allow a defendant to withdraw his plea of guilty. The next section addresses ineffective assistance of counsel at the plea bargaining stage.
Ineffective Assistance of Counsel and Plea Bargaining
In Strickland v. Washington, 466 U.S. 668 (1984), the Court noted that the right to counsel is the right to the effective assistance of counsel.
Strickland at 692; citing
McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970). Thus, the United States Supreme Court found that ineffective assistance of counsel violated a defendant's 6th amendment right to counsel and enumerated a two-prong test which defendants must satisfy to prevail on an ineffective assistance of counsel claim: 1) that counsel's performance fell below an objective standard of reasonableness; and, 2) that, but for the errors of counsel, there is a reasonable probability that the result of the proceeding would have been different.
Id. at 698.
The Court further held that in order to make a claim of ineffective assistance a defendant must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. Id. at 690. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id. The Court specifically indicated that one of defense counsel's duties is to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Id. at 691.
The Court also held that in any ineffective assistance of counsel case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments. Id. The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Id. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. Id.
The Supreme Court of Nevada evaluates a claim of ineffective assistance of trial counsel under the reasonably effective assistance test, or the Strickland test.
Kirksey v. State, 112 Nev. 980, 987-88, 923 P.2d 1102, 1107 (1996). A court may consider the two test elements in any order and need not consider both prongs if defendant makes an insufficient showing on either one. Id.
In Nevada, a defendant must raise a challenge to the validity of his or her guilty plea in the district court in the first instance, either by bringing a motion to withdraw the guilty plea, or by initiating a post-conviction proceeding under Nev. Rev. Stat. § 34.360 or Nev. Rev. Stat. § 177.315. Bryant v. State, 102 Nev. 268 (Nev. 1986). In
Bryant, the Nevada Supreme Court further held that it is then the duty of the trial court to review the entire record to determine whether the plea was valid, either by reason of the plea canvass itself or under a totality of the circumstances approach. Id. Regarding the plea canvas, in order to determine its validity, the Nevada Supreme Court held that the judge may elicit either a statement from the defendant indicating that he understands the elements of the offense, or an admission from the defendant indicating that he committed the crime charged. Id.
The right to effective assistance of counsel applies in all stages of a criminal proceeding, including plea bargaining. See generally Hill v. Lockhart, 474 U. S. 52 (1985) (claims of ineffective assistance of counsel surrounding a plea bargain should be assessed by the two part Strickland test, requiring an initial finding that defense counsel had been ineffective and then that there was resulting prejudice);
Padilla v. Kentucky, 130 S.Ct. 1473, (2010) (Holding that "the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel");
Missouri v. Frye, 131 S.Ct. 856 (2011) (The Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected and that that right applies to "all 'critical' stages of the criminal proceedings); Lafler v. Cooper, 131 S.Ct. 856 (2011) (Where counsel's ineffective advice led to an offer's rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the actual judgment and sentence imposed).
Thus, ineffective assistance of counsel at the plea bargaining stage amounts to advise that is incorrect and has a prejudicial effect on a defendant's case. Below is a discussion of the law concerning DUI causing death in order to compare with the advice actually given in the synopsis above.
Law Regarding DUI Causing Substantial Bodily Injury or Death
NRS 484C.430 provides that if a person: (a) Is under the influence of intoxicating liquor; (b) Has a concentration of alcohol of 0.08 or more in his or her blood or breath; (c) Is found by measurement within 2 hours after driving or being in actual physical control of a vehicle to have a concentration of alcohol of 0.08 or more in his or her blood or breath; (d) Is under the influence of a controlled substance or is under the combined influence of intoxicating liquor and a controlled substance; (e) Inhales, ingests, applies or otherwise uses any chemical, poison or organic solvent, or any compound or combination of any of these, to a degree which renders the person incapable of safely driving or exercising actual physical control of a vehicle; or (f) Has a prohibited substance in his or her blood or urine in an amount that is equal to or greater than the amount set forth in subsection 3 of NRS 484C.110; and does any act or neglects any duty imposed by law while driving or in actual physical control of any vehicle on or off the highways of this state, if the act or neglect of duty proximately causes the death of, or substantial bodily harm to, another person, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 20 years and must be further punished by a fine of not less than $2,000 nor more than $5,000.
An indictment or information charging substantial bodily harm resulting from driving while intoxicated must allege the act or neglect of duty that proximately caused the bodily harm to the persons named therein. State v. Johnston, 93 Nev. 279, 563 P.2d 1147, (1977);
Anderson v. State, 85 Nev. 415, 456 P.2d 445, (1969). (Decision under former similar statute).
In Cotter v. State, 103 Nev. 303, 738 P.2d 506, 1987 Nev. LEXIS 1631 (1987), the Nevada Supreme Court expressed the standard for determining whether a defendant is "under the influence". There, the Court held that a fact-finder must determine that the driver was impaired to a degree which renders him incapable of driving safely. The Court reasoned that this ensures that there is a causal relationship between the influence of the drugs or alcohol and the event causing death or injury to the victim which remains a question of fact to be considered in light of the totality of the circumstances. Id. citing
Sheriff, Clark County v. Burcham, 198 P.3d 326, (2008). However, the Nevada Supreme Court has also held that where the defendant's blood alcohol was over .10 percent at the time of the fatal accident, no further evidence was necessary to show that he was rendered incapable of safely driving a vehicle.
Bostic v. State, 104 Nev. 367, 760 P.2d 1241, (1988).
Notwithstanding the fact that the incapable-of-safely-driving language is confined to only one of the six alternative subsections of Nev. Rev. Stat. § 484.3795(1), the Cotter court concluded that the plain reading and logical application of this statute required that this language qualify each of the six subsections. In other words, conviction of felony DUI requires proof of the driver's inability to operate the vehicle safely. Otherwise, the Court noted:
[The statute] would make felons of drivers on lawfully prescribed medications irrespective of whether the medication had any causal relationship to the event leading to the death or injury of another. It is apparent that such a result would be unfair and contrary to the intent of the Legislature in enacting the statute.
Cotter, 738 P.2d at 507-08. See also
Bostic, 760 P.2d at 1242-43;
Etcheverry v. State, 107 Nev. 782, 821 P.2d 350, 351 n.1 (1991) (reading Nev. Rev. Stat. § 484.3795 for felony DUI involving intoxication by liquor to include requirement of inability to drive safely).
Thus, in order to sustain a conviction for DUI causing death the State must prove: 1) intoxication, and 2) proximately causing the death of the victim. This is contrary to the advice furnished above and amounts to ineffective assistance of counsel.
Modification of An Illegal Sentence
NRS 176.555 provides this court the authority to correct an illegal sentence. The Nevada Supreme Court has held that the inherent power to correct an illegal sentence, like the inherent power to modify sentences based on mistakes about a defendant's record, must necessarily include the power to entertain a motion to correct an illegal sentence. Edwards v. State, 112 Nev. 704, 918 P.2d 321, (1996).
A motion to correct an illegal sentence is an appropriate vehicle for raising the claim that a sentence is facially illegal at any time; however, such a motion cannot be used as a vehicle for challenging the validity of a judgment of conviction or sentence based on alleged errors occurring at trial or sentencing. Issues concerning the validity of a conviction or sentence, except in certain cases, must be raised in habeas proceedings. Edwards v. State, 112 Nev. 704, 918 P.2d 321, (1996). Thus, a sentence that violates the 8th Amendment to the United States Constitution is an illegal sentence a may be modified as a result. The applicable law concerning cruel and unusual sentences in non-capital cases is discussed below.
Law Regarding Cruel And Unusual Punishment-Applicability When Sentence is Within Statutory Range
The Eighth Amendment to the United States Constitution prohibits "cruel and unusual" punishments. 8th Amend. U.S. Const. The cruel and unusual punishment clause is fully applicable to the states on the basis of the due process clause of Fourteenth Amendment.
Robinson v California, 370 US 660, (1962). The Eighth Amendment prohibition against cruel and unusual punishment limits power of legislative body to establish penalties for crimes, restricts courts when sentencing convicted defendants, and protects prisoners from excesses of prison authorities in executive branch.
Williams v Mussomelli, 722 F2d 1130, (1983, CA3 Pa). Moreover, the Eighth Amendment prohibits punishments that involve unnecessary and wanton infliction of pain, are grossly disproportionate to severity of crime for which inmate was imprisoned, or are totally without penological justification.
Caldwell v Miller, 790 F2d 589, (1986, CA7 Ill). Also, the United States Supreme Court takes into account objective evidence of contemporary values before determining whether particular punishment comports with fundamental human dignity that Eighth Amendment protects.
Ford v Wainwright, 477 US 399, 91 L Ed 2d 335, 106 S Ct 2595, (1986).
In Weems v. United States the Court held that United States Constitution guaranteed proportionate sentencing. 217 U.S. 349 (1910). Under that approach, the Court held that a fifteen-year prison term of "cadena temporal" was unconstitutionally disproportionate for the offense of falsifying a public document. Id. at 365. While recognizing the "wide range of power that the legislature possesses" in defining crimes and fixing punishments, the Court asserted that it was "a precept of justice that punishment for crime should be graduated and proportioned to [the] offense." Id. at 379 and 367. To illustrate the disproportionate relationship between Weem's punishment and offense, the Court compared his crime to more serious crimes that had more lenient penalties and also to the comparable federal offense of falsifying public documents, which would have merited, at most, two years imprisonment. Id. at 380-81.
"The Eighth Amendment, which forbids cruel and unusual punishments, contains a 'narrow proportionality principle' that 'applies to noncapital sentences.'" Ewing v. California, 538 U.S. 11, 20, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003) (citations omitted). The Supreme Court has identified three factors that may be relevant to a determination of whether a sentence is so disproportionate to the crime committed that it violates the Eighth Amendment: "(1) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions."
Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983).
TheRummel v. Estelle and Solem v. Helm Decisions
In Rummel v. Estelle the United States Supreme Court adopted a restrictive approach to proportionality review. 445 U.S. 263 (1980). There, the Court held that a mandatory life term with a possibility of parole was not a disproportionate punishment for a third-felony offender convicted under a Texas recidivist statute. Id. at 285. The Court reasoned that only in very rare and extreme cases could a sentence be overturned as unconstitutionally disproportionate. Id. at 276.
The dissent challenged the majority's narrow view of the proportionality principle and offered three objective factors that judges could rely upon to review the proportionality of sentences. Rummel, 445 U.S. at 295 (Powell, J., dissenting). According to Justice Powell, reviewing courts were: (1) to examine the nature of the offense and the accompanying sentence; (2) to perform an intra-jurisdictional comparison of the defendant's sentence to those imposed for other crimes in that jurisdiction; and finally (3) to perform an inter-jurisdictional comparison by looking at sentences imposed for the same crime in other jurisdictions. After applying this three-part analysis, the dissent concluded that Rummel's sentence was disproportionate to the offenses he committed. Id. at 295-302.
Three years later, in Solem v. Helm the Court found a sentence of life imprisonment without possibility of parole to be unconstitutionally disproportionate when imposed on a seven-time nonviolent felony offender. 463 U.S. at 279-80. There, the Court stated that "as a matter of principle . . . a criminal sentence must be proportionate to the crime for which the defendant has been convicted." 463 U.S. at 290. In applying the
Rummel dissent's three-prong analysis, the Court found that while Helm's offenses were relatively minor, his punishment was the most severe that could be implemented in South Dakota. Id. at 297. It also found that the few crimes punishable by life imprisonment in South Dakota were quite grave in comparison to Helm's offenses. Id. at 298. Finally, it found that Helm "was treated more severely than he would have been in any other State." Id. at 300. The Court therefore concluded that Helm's sentence was unconstitutionally disproportionate.
Harmelin v. Michigan, 11 S. Ct. 2680, (1991)
In 1991, in Harmelin v. Michigan, the Court attempted to reconcile
Solem. 111 S. Ct. 2680 (1991). There, Justice Kennedy stated that the Court's decisions had always recognized a "narrow" proportionality principle, as in
Rummel, but that the comparative analysis of
Solem was to be retained and utilized only after a threshold comparison had led to an inference that the sentence was grossly disproportionate. Id. at 2702 and 2707. Justice Kennedy also enumerated the five essential principles of proportionality review, stating that: (1) the legislature holds a position of primacy in establishing prison terms for crimes; (2) the Eighth Amendment does not dictate adherence to any one penological theory; (3) federalism promotes differing penal schemes; (4) proportionality review must be as objective as possible; and (5) the Eighth Amendment does not require strict proportionality between crime and sentence. Id. at 2703-05. Concluding that Harmelin's conduct posed a grave threat to society, Kennedy found that it was not unreasonable for the Michigan legislature to impose such a harsh sentence. Id. at 2705.
Proportionality of 8-20 Year Sentence Under the Circumstances
Here, the sentence rendered was comparable to malum in se crimes such as robbery, kidnapping, manslaughter and attempted murder that require willful and malicious conduct. The sentence is also comparable to reprehensible crimes such as drug trafficking and sexual assault, also crimes that require willful conduct that is damaging to society at large.
Defendant's crime was one that was not intentional and could, at worst, be categorized as grossly reckless. However, modern science may mitigate that conclusion. The nature of addiction is such that one's will and judgment is overcome in service to the addiction. Moreover, addiction is considered a medical condition that requires treatment, not a crime that demands imprisonment; hence, drug court. It is arguable that in the instant matter is the result of the defendant's medical condition and not his gross indifference to human life. Viewing the matter in the light makes the crime alleged far less egregious and reprehensible.
Thus, under the circumstances, the sentence rendered is arguably unconstitutional and should be modified.