Hubbard v. State

• Decision Date: 07 July 1994
• Docket Number: No. 24549,24549
• Citation: 877 P.2d 519,110 Nev. 671
• Parties: Roy Emery HUBBARD, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 519

877 P.2d 519

110 Nev. 671

Roy Emery HUBBARD, Appellant, v. The STATE of Nevada, Respondent.

No. 24549.

Supreme Court of Nevada.

July 7, 1994.

As Amended Aug. 19, 1994.

Rehearing Denied July 22, 1996.

James J. Jackson, State Public Defender, James P. Logan, Appellate Deputy Public Defender, Carson City, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, William Schaeffer, Dist. Atty., and Hy Forgeron, Sp. Deputy Dist. Atty., Eureka County, for respondent.

OPINION

PER CURIAM:

This is an appeal from a judgment of conviction made pursuant to an Alford plea of four counts of lewdness with a minor. For reasons stated below, we affirm the decision of the district court.

FACTS

In February 1992, appellant Roy Emery Hubbard ("Hubbard"), age 61, was arrested on several counts of lewdness with a minor, attempted sexual assault and sexual assault. In March 1993, he was bound over for trial on five criminal counts. Count one alleged that between 1980 and April 1982 Hubbard committed a lewd and lascivious act upon his granddaughter who was approximately five to six years old at the time ["Granddaughter I"]. Count two alleged that between August 1985 and 1987 Hubbard committed a lewd and lascivious act upon Granddaughter I. Count three alleged that between 1980 and April 1982, Hubbard subjected Granddaughter I to digital sexual penetration. Count four alleged that between August 1985 and 1987, Hubbard attempted to subject another granddaughter, who at the time was approximately seven to eight years old ["Granddaughter II"], to sexual penetration. Count five alleged that between 1981 and April 1982, Hubbard committed a lewd and lascivious act upon Granddaughter II, who was approximately three years old at the time.

On May 11, 1982, Hubbard was convicted of extortion and kidnapping in the first degree with the use of a deadly weapon. He was incarcerated from May 1982 to July 25, 1985. Therefore, the offenses with which he was charged in the instant case took place both before and after his incarceration on the unrelated charges.

A jury trial was held during which both victims testified. Hubbard also testified on his own behalf. Following the close of his direct testimony and after conferring with his counsel, Hubbard decided to enter into a plea agreement. The State agreed to dismiss count three and amend count four from attempted sexual assault to lewdness with a minor. Hubbard agreed to plead guilty to four counts of lewdness with a minor. Hubbard stated that he did not want to enter such a plea, but felt he had to in view of a letter which was plaintiff's exhibit A.

The letter to which Hubbard referred was a letter he had written to his wife. In it, Hubbard admits to having touched his granddaughters in an inappropriate manner, though he claimed they initiated the contact against his wishes. In exchange for Hubbard's guilty plea, the State agreed not to use the letter and to ask the court not to consider it at sentencing.

Prior to accepting his plea, the court questioned Hubbard extensively about his reasons for entering a plea of guilty. Hubbard's counsel explained to the court that Hubbard, having admitted to touching the victims, though not to satisfy his own sexual desires, was entering an Alford plea in order to have the more serious charges dropped. After questioning Hubbard, the court made a finding that Hubbard offered his plea voluntarily, knowingly, and intelligently; that there was a factual basis for the plea; that Hubbard understood the nature of the offenses to which he was pleading guilty; that he understood the range of possible punishment and consequences; and that he understood his constitutional rights. The court then accepted Hubbard's plea.

On the day of sentencing, Hubbard filed a motion to withdraw his plea of guilty on the ground that he had not entered his plea knowingly, voluntarily or intelligently. In his supporting affidavit, Hubbard stated that during trial he had been "suddenly confronted" with the letter he had written to his wife and that he had not known the State had possession of the letter. He stated that he had been "unable to make a voluntary decision due to the tremendous pressure and was unable to think intelligently and to make an informed decision due to [his] tremendous surprise and confusion." He had not realized that both the pre-sentence report and the court would consider allegations made by Granddaughter I and Granddaughter II concerning sexual acts. He claimed the reason for his plea was that while he was not guilty, he was afraid the statements he had made in the letter would be misinterpreted by the jury.

Before sentencing, the court conducted a hearing on Hubbard's motion. During questioning by his counsel, Hubbard stated that he had been required to make his decision to plead guilty within "three to five minutes." He claimed that anything he had done to Granddaughter I had been at her request. Further, he reiterated his statements in his affidavit that he had not been aware that allegations by the victims would be considered in the pre-sentence report. The court admitted the letter, which, prior to that time had not been admitted. Hubbard testified that he understood the significance of an Alford plea. However, after seeing the pre-sentence report, he had decided to try to withdraw his plea. As to the time Hubbard had to make his decision, Hubbard's counsel stated that he recalled Hubbard having an hour and a half. The court noted that Hubbard had been given between one and one half hours and two hours to make his decision.

Following the hearing, the court denied Hubbard's motion and found him guilty of four counts of lewdness with a minor under the age of fourteen years. The court then imposed four consecutive ten-year sentences.

Hubbard appeals and makes the following arguments: (1) the district court abused its discretion in denying his presentence motion to withdraw his Alford plea; and (2) prosecution of both the pre-1985 acts and the post-1987 acts should have been barred by the statute of limitations. We will address both of Hubbard's arguments as well as the issue as to whether the entering of an Alford plea acts as a waiver of any statute of limitations defense.

DISCUSSION

As stated above, Hubbard agreed to plead guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), after he learned that the prosecution had obtained and planned to offer the letter he had written to his wife. He later moved to withdraw his plea, but the court denied his motion.

Hubbard now claims that he should have been given at least until the following day to make his decision. In addition, his misconception concerning the court's consideration of the victims' allegations was enough to allow him to withdraw his plea.

This court has held that a guilty plea is presumptively valid, and the defendant has the burden of establishing that the plea was not entered knowingly and intelligently. Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986). Absent an abuse of discretion, the district court's decision regarding the validity of a guilty plea will not be reversed on appeal. Id. A guilty plea will be considered properly accepted if the trial court canvassed the defendant to determine whether the defendant knowingly and intelligently entered the plea. Baal v. State, 106 Nev. 69, 72, 787 P.2d 391, 394 (1990).

We conclude that the district court did not abuse its discretion in denying Hubbard's motion to withdraw his guilty plea. The district court thoroughly canvassed Hubbard prior to accepting his plea of guilty. Hubbard responded that he understood the charges, the consequences...