354 P.3d 1277 (Nev. 2015), 62965, Stevenson v. State

Docket Nº:62965
Citation:354 P.3d 1277, 131 Nev.Adv.Op. 61
Opinion Judge:PICKERING, J.
Party Name:JOSEPH JAMIL STEVENSON, Appellant, v. THE STATE OF NEVADA, Respondent
Attorney:Casey A. Landis, Las Vegas, for Appellant. Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Respondent.
Judge Panel:BEFORE SAITTA, GIBBONS and PICKERING, JJ.
Case Date:August 13, 2015
Court:Supreme Court of Nevada
 
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Page 1277

354 P.3d 1277 (Nev. 2015)

JOSEPH JAMIL STEVENSON, Appellant,

v.

THE STATE OF NEVADA, Respondent

No. 62965

Supreme Court of Nevada

August 13, 2015

Appeal from a judgment of conviction, pursuant to a guilty plea, of two counts of attempted sexual assault. Eighth Judicial District Court, Clark County; Elissa F. Cadish, Judge.

Affirmed.

Casey A. Landis, Las Vegas, for Appellant.

Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Respondent.

BEFORE SAITTA, GIBBONS and PICKERING, JJ.

OPINION1

Page 1278

PICKERING, J.

NRS 176.165 allows a defendant who has pleaded guilty, but not been sentenced, to petition the district court to withdraw his plea. When this court first examined NRS 176.165, we held that a court may grant such motions for any substantial reason that is " fair and just." See State v. Second Judicial Dist. Court ( Bernardelli ), 85 Nev. 381, 385, 455 P.2d 923, 926 (1969). Many years later, we significantly narrowed that holding, stating that the only relevant question when determining whether a defendant presented a fair and just reason sufficient to permit withdrawal of his plea is whether the plea was knowingly, voluntarily, and intelligently entered. Crawford v. State, 117 Nev. 718, 721-22, 30 P.3d 1123, 1125-26 (2001). In this appeal, we consider whether Crawford's exclusive focus on the validity of the plea is supported by NRS 176.165. We hold that it is not. We also hold that appellant failed to present a fair and just reason favoring withdrawal of his plea and therefore affirm his judgment of conviction.

I.

Appellant 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,

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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, 117 Nev. at 721-22, 30 P.3d at 1125-26, finding that his plea was entered into knowingly, voluntarily, and intelligently.

II.

Stevenson argues that Crawford's exclusive focus on whether the plea was knowing, voluntary, and intelligent lacks foundation in NRS 176.165. He points out that, before Crawford, this 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. See Bernardelli, 85 Nev. at 385, 455 P.2d at 926 (" 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." (internal quotation marks omitted)); see also Mitchell v. State, 109 Nev. 137, 141, 848 P.2d 1060, 1062 (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).

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