Crawford v. State, 35810.

Citation30 P.3d 1123,117 Nev. 718
Decision Date17 September 2001
Docket NumberNo. 35810.,35810.
PartiesDavid CRAWFORD, Appellant, v. The STATE of Nevada, Respondent.
CourtSupreme Court of Nevada

Scott L. Bindrup, Las Vegas, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.

Before SHEARING, AGOSTI and ROSE, JJ.

OPINION

By the Court, AGOSTI, J.

The body of Gloria Joann Dugan, a woman with whom David Crawford was personally involved in a relationship, was discovered on March 25, 1997. She had been shot multiple times. After the police investigated her homicide, the district attorney charged David Crawford, on March 28, 1997, with murder with the use of a deadly weapon and burglary.

At a hearing on April 10, 1997, the justice of the peace lowered Crawford's bail to $360,000.00. Crawford's parents posted the bail and he was released that day. Crawford waived his right to have the preliminary hearing which was scheduled for August 6, 1997, based upon a plea bargain he had made with the State. Crawford had agreed to enter a plea of guilty to first-degree murder with the use of a deadly weapon. He also agreed to accept a sentence of two terms of life imprisonment without the possibility of parole. Crawford and the State also agreed that sentencing would take place after Christmas 1997.

Crawford was expected to plead guilty according to the terms of the plea bargain on August 21, 1997. However, that hearing was continued after the court granted Crawford's request that he be allowed to enter his plea after his September birthday had passed.

At a hearing on November 17, 1997, Crawford, instead of pleading guilty according to the plea bargain, pleaded not guilty. The court set the matter for trial, but that trial date was continued. Crawford remained on bail and in the community for more than two years with the first-degree murder charge pending. He married and fathered a child during his time at liberty in the community.

On August 26, 1999, four days prior to his scheduled trial date, Crawford withdrew his plea of not guilty and thereafter entered a plea of guilty to first-degree murder with the use of a deadly weapon. He had executed a written plea agreement that morning, prior to the hearing on his change of plea. Crawford wanted to remain on bail until he was sentenced, and he wanted to be sentenced after Christmas 1999. After accepting Crawford's guilty plea, the court set his sentencing date for January 6, 2000. Crawford was permitted to remain at liberty on his previously posted bail. However, the court, acting on its own initiative, held a hearing one week after Crawford had pleaded guilty. The hearing concerned Crawford's bail status. Ultimately, on September 9, 1999, the court revoked Crawford's bail, and Crawford was jailed.

Crawford objected, claiming that a condition for his guilty plea was that he be allowed to remain at liberty until after Christmas. His motions for reconsideration, for a remand to justice court or, in the alternative, to withdraw his guilty plea were denied by the court. Crawford was sentenced in February 2000 to two consecutive terms of life imprisonment without the possibility of parole for Dugan's murder and for the use of a deadly weapon.

Crawford raises several issues on appeal including allegations that his due process rights under the Fourteenth Amendment were violated by the court when it displayed personal bias against Crawford by revoking his bail. We determine that this assignment of error is without merit. In our review of the record we detect no evidence of bias.

Crawford next claims that the judge engaged in an ex parte communication with Crawford's attorney. The day before Crawford pleaded guilty, a member of the judge's staff contacted Crawford's counsel and directed him to phone the judge at his home. Counsel called the deputy district attorney assigned to prosecute Crawford and told him he would be calling the court as directed. Counsel then phoned the judge, and an ex parte conversation took place.

Whenever a judge communicates with a party concerning a pending proceeding without notice to the adverse party, an ex parte communication has occurred.1 Canon 3(B)(7)(a) of the Nevada Code of Judicial Conduct prohibits a judge from engaging in ex parte communications except where circumstances require such contact for scheduling and no substantive matters or issues on the merits are discussed. The record reveals that the judge acknowledged that he engaged in ex parte communications with Crawford's attorney and claimed that these communications were restricted to scheduling matters. However, according to Crawford's counsel, the judge asked if Crawford would be pleading guilty. Counsel related Crawford's concern that if he pleaded guilty he would be jailed pending his sentencing hearing. Counsel informed the judge of his client's desire to remain on bail until he was sentenced and to be sentenced after Christmas 1999. The judge told counsel he would agree to those conditions.

It is not possible for this court to resolve this factual conflict in the context of this appeal. As a result, it is difficult to know whether this communication between the court and Crawford's counsel violated Canon 3(B)(7). Fortunately, we need not resolve this issue to decide Crawford's appeal because other error exists which requires reversal of the district court's denial of Crawford's motion to withdraw his plea of guilty. Nevertheless, we take this opportunity to indicate our disapproval of the judge's decision to communicate ex parte with counsel. Current technology, including conference calling and three-way calling, makes the dangerous practice engaged in by this judge unnecessary. By including a representative of the State in a conversation limited to questions of scheduling, the court might have avoided this embarrassing accusation of conduct which, if true, is at best unethical and at worst possible reversible error.

Error exists in this case which requires this court to reverse the judgment of conviction and remand the matter to the district court with instructions to the district court to allow Crawford to withdraw his guilty plea. When reviewing a district court's denial of a motion to withdraw a guilty plea, this court presumes that the district court properly assessed the plea's validity, and we will not reverse the lower court's determination absent abuse of discretion.2 District courts may grant a motion to withdraw a guilty plea prior to sentencing for any substantial, fair, and just reason.3 To determine whether the defendant advanced a substantial, fair, and just reason to withdraw a plea, the district court must consider the totality of the circumstances to determine whether the defendant entered the plea voluntarily, knowingly, and intelligently.4 A thorough plea canvass coupled with a detailed, consistent, written plea agreement supports a finding that the defendant entered the plea voluntarily, knowingly, and intelligently.5 Moreover, a guilty plea is presumptively valid, especially when it is entered into on the advice of counsel.6 The guidelines for voluntariness of guilty pleas require only that the record affirmatively show that the defendant entered his plea understandingly and voluntarily.7

The record lends compelling credence to Crawford's assertion that his plea of guilty was conditioned upon the court's oral promise to allow him to remain out of custody until after Christmas. That condition is not reflected in and is inconsistent with the written plea agreement which Crawford signed before his hearing and before his oral guilty plea canvass. The signed, written plea agreement contains the following language: "I am signing this agreement voluntarily, after consultation with my attorney, and I am not acting under duress or coercion or by virtue of any promises of leniency, except for those set forth in this agreement." The agreement is silent as to Crawford's custody status prior to sentencing. In contrast to the terms of the written agreement, Crawford, his counsel and the deputy district attorney engaged in a colloquy with the judge at the hearing on...

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