Agtas v. Whitley
| Decision Date | 17 June 1986 |
| Docket Number | No. CV-R-85-558-ECR.,CV-R-85-558-ECR. |
| Citation | 637 F. Supp. 1476 |
| Parties | Hasan Tashin AGTAS, Petitioner, v. Harol WHITLEY, Warden; Brian McKay, Attorney General, Respondents. |
| Court | U.S. District Court — District of Nevada |
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Oscar Goodman, Annette Quintana, Goodman, Terry, Stein & Quintana, Las Vegas, Nev., for petitioner.
Brian McKay, Atty. Gen. by David F. Sarnowski, Deputy Atty. Gen., Carson City, Nev., for respondents.
Petitioner, an inmate at the Nevada State Prison, has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He contends that his Sixth Amendment right to effective assistance of counsel and his Fourteenth Amendment due process rights were violated. Petitioner had been charged in State District Court for Douglas County with sexual assault and attempted sexual assault on a five-year old girl. He pleaded not guilty at his arraignment and personally, as well as through his attorney, waived his right to a preliminary hearing. The waiver was made after the Judge had advised Petitioner that the purpose of a preliminary hearing was to determine probable cause that an offense had been committed and that he was the one who had committed it. The Judge further informed Petitioner that at a preliminary hearing he could see and hear the State's witnesses and his attorney could examine them.
An associate of Petitioner's attorney represented him at a change of plea proceeding some three months later. The change resulted from a plea bargain agreement. Petitioner agreed to plead nolo contendere to lewdness with a child under the age of fourteen. In return, the two more serious Douglas County sexual assault charges would be dropped and, in addition, the Carson City District Attorney agreed not to prosecute Petitioner in connection with a lewdness complaint involving a ten-year old girl. The State indicated that it made the agreement because its case rested largely on the competency and credibility of the five-year old victim of the Douglas County offenses. Although she was able to recount to a psychologist, on videotape, what had happened, the prosecutor stated that it was uncertain the court would admit into evidence the testimony of such a young child.
The Judge questioned Petitioner as to his understanding of the plea bargain agreement, which was evidenced by a signed written memorandum. His attorney represented that the nolo contendere plea was motivated in part by the possibility of a civil lawsuit against him based on the same purported offenses. Also, although Petitioner did not admit guilt, his attorney said that Petitioner recognized that a jury could find him guilty based on the available evidence. The attorney noted that numerous discussions had been held with Petitioner, who had viewed the videotape and read reports on the incident. As a result of the discussions and review of the evidence, a preliminary hearing was not deemed necessary by Petitioner or his attorneys.
Petitioner himself told the Court that he knew the maximum penalty on the lewdness charge would be ten years in prison and a $10,000 fine. The Judge repeated the potential penalty. In addition, he stated the specific elements that the State would have to prove to convict Petitioner of the charge. Petitioner affirmed that he understood what those elements were. He also acknowledged that he understood that the Court would treat his nolo contendere plea as a guilty plea. The Judge told him that, if Petitioner persisted in the proposed plea change, it was very likely the Judge would revoke his bail and put him in jail. Petitioner answered that he understood. He also was told by the Court that in all probability he would be sentenced to Nevada State Prison for a term of up to ten years. The Judge stated that it was unlikely that he would grant probation, even if the Department of Parole and Probation recommended it. Petitioner said that he understood, and still wanted to plead no contest (nolo contendere). The Court made clear that a prison term was very probable, because of the nature of the offense against a five-year old child. Petitioner repeated that he wanted to plead no contest.
In answer to the Judge's questions, Petitioner indicated that he understood that the proposed change of plea would be deemed a waiver of his right to a speedy and public jury trial, of his right to confront and cross-examine the witnesses against him, and of his privilege against self-incrimination. The Judge outlined certain civil rights that would be lost by reason of being convicted of a felony. Petitioner said that he understood.
When Petitioner denied guilt of any sexual offense against the child, the Court asked the prosecutor to disclose the kind of evidence that was available. The prosecutor said that the Sheriff's office had been contacted by the child's mother, who reported that something had happened. The child then told a Sheriff's investigator what the Petitioner had done to her. Further investigation with a friend of the victim's family revealed that a ten-year old girl in Carson City also purportedly had been abused by Petitioner. The Sheriff's investigator interviewed at length the ten-year old. A psychologist then was hired by the Douglas County District Attorney's office. The videotape was made by the psychologist and the five-year old victim, with the aid of a red flag (bad touch), green flag (good touch) approach and anatomically correct dolls. The little girl placed the dolls together in the manner that Petitioner had been in contact with her, and said that it was Petitioner who had so touched her. The tape was twenty to twenty-five minutes long. A doctor had examined the girl several days after the incident and had found redness, but couldn't declare whether it had resulted from penetration.
The Court questioned Petitioner concerning the evidence. Petitioner verified that he had heard the prosecutor's rendition of the evidence and also had read the police reports. The Judge then insisted that Petitioner (and not his attorney) tell why he persisted in pleading nolo contendere, which would be treated as a guilty plea. Petitioner responded: "The reason I pled no contest is because the other accusation has a punishment of life sentence and that's the reason why, your Honor." In answer to further questioning by the Court, Petitioner said that he agreed with his lawyer that there was a substantial likelihood he would be convicted of the sexual assault charges if the little girl testified. He stated that he had fully discussed the case with his lawyer and was satisfied with his representation. Petitioner affirmed his understanding that he would be waiving any defense to the action by pleading nolo contendere.
The Judge said: Petitioner said that he understood. The Court then declared that whether the psychologist or the five-year old even could testify at trial were issues that would have to be resolved if Petitioner went to trial. If such testimony were held to be inadmissible, the Judge said, the case would be dismissed. Petitioner stated that he understood. Nevertheless, he reiterated that he still wanted to plead no contest. Petitioner said that he was changing his plea freely and voluntarily and that no one had threatened him or made any promises to him. The Judge then asked, "Again, you understand you can be subject to the full ten years in the State Prison?" Petitioner said that he understood.
The Court then specifically asked Petitioner: "You are waiving the right to have this matter remanded for a preliminary hearing so you could hear this girl testify; is that correct?" The answer was, "Yes." In response to a further question, Petitioner indicated that he understood that evidence of the purported Carson City offense might not be admissible in the case in which he was changing his plea. When Petitioner told the Court that he was following his lawyer's advice, the Judge informed him that the final decision was his own and should be based on the evidence against him. Petitioner said that he still felt that the correct decision would be to plead nolo contendere. The Court accepted that plea, revoked Petitioner's bail and set the case for sentencing.
A sentencing proceeding was held some two and one-half months later. Petitioner was represented by his original attorney, rather than the associate who had been present for the change of plea. After pointing out that Petitioner continued to deny having committed any offense, his lawyer called two witnesses. They testified that Petitioner had babysat their small children and that they still trusted him completely.
The Court then invited Petitioner to say anything he wished. He reiterated his innocence. Nevertheless, he affirmed that he still wanted to plead no contest. Petitioner again acknowledged his fear that he might be convicted of a more serious offense with a potentially longer prison term, if the little girl testified. The Judge reminded Petitioner that he had not yet determined whether the five-year old child was even competent to testify. Petitioner repeated that he wanted to plead no contest. He then was sentenced to a term of ten years in the Nevada State Prison.
Six months later a different lawyer filed, on Petitioner's behalf, a motion to modify sentence or, in the alternative, to permit withdrawal of his plea. The ground alleged was that the Court had been acting under mistaken belief and misapprehension of the facts when it had sentenced Petitioner. The attorney pointed out that Petitioner had been born and raised in Turkey and had had no prior dealings with the criminal justice system in the United States. He had understood his original lawyer to say that so long as P...
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Agtas v. Whitley, 86-2306
...assistance of counsel claim. The facts are thoroughly outlined in the published decision of the district court. Agtas v. Whitley, 637 F.Supp. 1476 (D.Nev.1986). We summarize them Agtas was charged in Nevada state court with sexual assault and attempted sexual assault on a five-year-old girl......