Boyle v. Warden, Nevada State Prison

• Decision Date: 13 December 1979
• Docket Number: No. 11792,11792
• Citation: 95 Nev. 888,603 P.2d 1068
• Parties: Robert L. BOYLE, Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent.
• Court: Nevada Supreme Court

Page 1068

603 P.2d 1068

95 Nev. 888

Robert L. BOYLE, Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent.

No. 11792.

Supreme Court of Nevada.

Dec. 13, 1979.

Stephen R. Wassner, Zephyr Cove, for appellant.

[95 Nev. 889] Richard H. Bryan, Atty. Gen., and Richard E. Thornley, Deputy Atty. Gen., Carson City, for respondent.

OPINION

PER CURIAM:

Pursuant to a plea bargain, appellant Boyle pleaded guilty on May 12, 1978, to armed robbery. NRS 200.380; NRS 193.165. The plea bargain included a commitment by the prosecution not to prosecute Boyle as an habitual criminal under NRS 207.010. Boyle was subsequently sentenced to two consecutive four-year terms in the Nevada State Prison. The First Judicial District Court denied his petition for a writ of habeas corpus and this appeal followed, appellant being represented on appeal by different counsel.

Appellant contends he made neither a voluntary nor intelligent guilty plea because (1) his attorney failed to verify whether Boyle could have been prosecuted as an habitual criminal; and, (2) the memorandum of plea bargain used the term "armed robbery" leading him to believe that he was pleading to only one offense and he would receive only one sentence.

It is well established that a plea of guilty must be entered intelligently and voluntarily. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Higby v. Sheriff, 86 Nev. 774, 476 P.2d 959 (1970); See also Patton v. Warden, 91 Nev. 1, 530 P.2d 107 (1975); Armstrong v. Warden, 90 Nev. 8, 518 P.2d 147 (1974); Heffley v. Warden, 89 Nev. 573, 516 P.2d 1403 (1973). Appellant argues that had his attorney more fully advised him about the bargain, he would not have entered a guilty plea. Thus, he argues, the plea was not taken voluntarily and intelligently as required by Higby and its progeny.

(1) In his first contention of error appellant offers no evidence that he could not have been convicted as an habitual criminal. He alleges, however, that his attorney should have verified the prior convictions before recommending to appellant that he enter into the plea bargain. Counsel's reasons for not researching this matter further appear in the record in an affidavit in which he states: "ROBERT BOYLE . . . stated to me that he had been convicted of at least two prior felonies (and he) never disputed those convictions . . . dispite the fact that he had been informed . . . of the necessary proofs required to be convicted as an habitual criminal."

"It is axiomatic that a guilty plea 'lacks the required voluntariness and understanding if entered on advice of counsel that fails to meet the minimum standards of effectiveness derived from' the Sixth Amendment." United States v. Sanderson, 595 F.2d 1021, 1022 (5th Cir. 1979). We have always maintained that to find ineffective assistance of counsel, we must find that counsel's representation was of such a low caliber as to reduce the proceeding to a sham, a farce, or a pretense. See White v. State, 95 Nev. 159, 591 P.2d 266 (1979); Warden v. Lischko, 90 Nev. 221, 523 P.2d 6 (1974). We are here urged to adopt a less stringent test, that is, whether counsel rendered reasonably effective assistance. Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978), Cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979).

Under any test, however, the presumption that an attorney has fully discharged his duties may be overcome only by strong and convincing proof to the contrary. See White v. State, supra; Shuman v. State, 94 Nev. 265, 578 P.2d 1183 (1978); Lambert v. State, 94 Nev. 68, 574 P.2d 586 (1978); Warden v. Lischko, supra. We have considered the record and perceive no foundation for the claim of ineffective assistance of counsel under any test. See White v. State, supra.

(2) Appe...