Harker v. State, 111219 NVCA, 78556-COA

Docket Nº:78556-COA
Opinion Judge:Gibbons, C.J.
Party Name:PAUL LINDEN HARKER, A/K/A PAUL LYNDEN HARKER, Appellant, v. THE STATE OF NEVADA, Respondent.
Judge Panel:Tao, Bulla, Judges. Hon. Gary Fairman, District Judge.
Case Date:November 12, 2019
Court:Court of Appeals of Nevada
 
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PAUL LINDEN HARKER, A/K/A PAUL LYNDEN HARKER, Appellant,

v.

THE STATE OF NEVADA, Respondent.

No. 78556-COA

Court of Appeals of Nevada

November 12, 2019

UNPUBLISHED OPINION

ORDER OF AFFIRMANCE

Gibbons, C.J.

Paul Linden Harker appeals from a judgment of conviction entered pursuant to a guilty plea of possession of a controlled substance. Seventh Judicial District Court, White Pine County; Gary Fairman, Judge.

Harker claims the district court abused its discretion by basing its decision to deny his presentence motion to withdraw his guilty plea on his failure to appear at the evidentiary hearing the district court set for his motion.

A defendant may move to withdraw a guilty plea before sentencing, NRS 176.165, and "a district court may grant a defendant's motion to withdraw his guilty plea before sentencing for any reason where permitting withdrawal would be fair and just," Stevenson v. State, 131 Nev. 598, 604, 354 P.3d 1277, 1281 (2015). The district court's ruling on a presentence motion to withdraw a guilty plea "is discretionary and will not be reversed unless there has been a clear abuse of that discretion." State v. Second Judicial Dist. Court (Bernardelli), 85 Nev. 381, 385, 455 P.2d 923, 926 (1969).

Harker claimed in his motion that he received additional discovery after he entered his guilty plea which demonstrated that no fingerprints were obtained from the plastic baggy that contained methamphetamine residue. He asserted this new evidence changed his analysis of his probability of success at trial and therefore he would like to proceed to trial. The district court set the motion for an evidentiary hearing, but Harker failed to appear and consequently no evidence was presented to support his reasons for withdrawing his guilty plea.

The district court made the following findings. Harker's motion was not accompanied by an affidavit that supported its factual contentions as required by 7JDCR 7(7). Harker did not appear at the evidentiary hearing that the district court conducted pursuant to 7JDCR 7(11). "There is no evidence showing that the motion has merit and everything about this motion has to do with...

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