Gamble v. State, 11652

• Decision Date: 20 December 1979
• Docket Number: No. 11652,11652
• Citation: 95 Nev. 904,604 P.2d 335
• Parties: Lester GAMBLE, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 335

604 P.2d 335

95 Nev. 904

Lester GAMBLE, Appellant, v. The STATE of Nevada, Respondent.

No. 11652.

Supreme Court of Nevada.

Dec. 20, 1979.

Richard A. Wright, Las Vegas, for appellant.

Richard H. Bryan, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty., Las Vegas, for respondent.

OPINION

PER CURIAM:

Lester Gamble appeals from the district court's denial of his petition for post-conviction relief, in which he sought to withdraw his plea of guilty to a charge of attempted grand larceny or, in the alternative, to obtain specific enforcement of his plea bargain. We reverse the judgment of the district court and remand for further proceedings.

In December, 1977, appellant Gamble was arraigned on a charge of grand larceny and entered a plea of not guilty. As a result of negotiations with the prosecutor, a plea agreement was reached: Gamble, who was then on probation for a previous conviction, agreed to stipulate to the revocation of probation and to plead guilty to the present grand larceny charge; the prosecution promised not to file an unrelated grand larceny charge against appellant and to agree to the imposition of concurrent sentences on the present grand larceny charge and on the probation revocation. After a proper canvass by the district judge, which included the fact that the plea was being entered pursuant to plea negotiations and that the prosecutor was agreeing to the imposition of a concurrent sentence, the plea of guilty was accepted and entered on February 17, 1978. While in custody after the entry of the plea, appellant was hospitalized with an ailment whose nature is not disclosed by the record.

On March 15, 1978, a hearing was held in Department 8 of the Eighth Judicial District Court to revoke appellant's probation. Appellant was represented by a different public defender than the one representing him in the instant case, and the State was represented by a different deputy district attorney. No reference was made to the plea negotiations in the instant case, and no attempt was made to have appellant stipulate to the revocation of probation. After the hearing, probation was revoked and appellant was sentenced to a ten year prison term.

On March 28, 1978, a sentencing hearing was held in Department 7 of the Eighth Judicial District Court on the charge at issue in the instant case. It appeared then that the appellant had not stipulated to the revocation, but it was the first either defense counsel or the prosecutor had heard of the probation revocation hearing. As the deputy district attorney put it, "I just don't have any explanation for what's happened." That hearing was continued.

The final sentencing hearing occurred on April 11, 1978. At this hearing, the deputy district attorney represented that appellant had "refused" to stipulate to the revocation of his probation, and recommended that the maximum sentence on the present grand larceny charge be imposed to run Consecutively to the sentence imposed as a result of the probation revocation. The appellant then stated that, if the sentence was not to be imposed as agreed in the plea negotiations, he wished to withdraw his plea of guilty. Appellant's counsel argued that the plea bargain had been broken through no fault of appellant but rather through inadequate communication within the district attorney's office and between that office and defense counsel. The district judge imposed a five year sentence, to run consecutively to that on the probation revocation. Gamble sought post-conviction relief in the district court, contending that the prosecution had not kept its promises in the plea bargain, that his guilty plea was therefore involuntary, and that, as a result, he should be permitted to withdraw the plea. The district court denied his petition after a hearing which consisted of argument of counsel and consideration of the points and authorities submitted; and this appeal followed.

We find that the hearing held by the district court was insufficient to establish the appellant's alleged breach of the plea bargain. When more than a bare allegation is made that a guilty plea was induced by promises made by the prosecution Vaillancourt v. Warden, 90 Nev. 431, 529 P.2d 204 (1974), we have chosen to follow the Ninth Circuit Court of Appeals, which held, in Schoultz v. Hocker, 469 F.2d 681 (9th Cir. 1972), that an evidentiary hearing is required to determine whether a promise was made to the defendant. Fine v. Warden, 90 Nev. 166, 521 P.2d 374 (1974). Similarly, when the prosecution contends that it should be released from its obligations under a plea bargain because of an alleged breach of the agreement by the defendant, an evidentiary hearing is required to determine whether the defendant actually breached the agreement, and, if so, whether the breach is sufficiently material to warrant releasing the prosecution from its promises. United States v. Donahey, 529 F.2d 831 (5th Cir. 1976); See also United States v. Nathan, 476 F.2d 456 (2d Cir. 1973).

The reason for this rule is the requirement of fairness in plea negotiations recognized in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). When a plea bargain is made and a guilty plea entered thereon, the promises of the prosecutor are part of the inducement of the plea (as the judge in this case specifically noted); and it is axiomatic that "(n)o guilty plea which has been induced by an unkept plea bargain can be permitted to stand." Bryan v. United States, 492 F.2d 775, 778 (5th Cir.) (en banc), Cert. denied, 419 U.S. 1079, 95 S.Ct. 668, 42 L.Ed.2d 674 (1974). Since the defendant relinquishes constitutional protections by pleading guilty, a waiver of those protections must be knowingly and...