Heffley v. Warden, Nevada State Prison

• Decision Date: 27 December 1973
• Docket Number: No. 7278,7278
• Citation: 89 Nev. 573,516 P.2d 1403
• Parties: James HEFFLEY, Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent.
• Court: Nevada Supreme Court

Page 1403

516 P.2d 1403

89 Nev. 573

James HEFFLEY, Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent.

No. 7278.

Supreme Court of Nevada.

Dec. 27, 1973.

Legarza, Lee & Barengo, Reno, for appellant.

Robert List, Atty. Gen., Carson City, Robert E. Rose, Dist. Atty. and Kathleen M. Wall, Deputy Dist. Atty., Reno, for respondent.

OPINION

GUNDERSON, Justice:

Appellant originally was charged with several crimes, and as a recidivist. Plea bargaining resulted in abandonment of all charges, except one of receiving stolen property (NRS 205.275), to which appellant pleaded guilty. Soon after being sentenced to 10 years in prison, appellant instituted post-conviction proceedings seeking to withdraw his plea. Following an evidentiary hearing the district judge denied relief, stating 'that on the basis of the record in this case, it is clear that (appellant) understood the nature and consequences of his plea.'

Although appellant does not contest the correctness of this statement, he urges that our decision in Higby v. Sheriff, 86 Nev. 774, 476 P.2d 959 (1970), compels a reversal because the court did not specifically refer to appellant's Fifth Amendment privilege against self-incrimination before accepting his plea. The State contends a guilty plea need not be set aside for failure to mention one of the constitutional rights alluded to in Highby, where the record supports a determination that the defendant was in fact informed of all his rights, and did in fact enter his plea knowingly and voluntarily. We agree.

NRS 174.035(1), which is patterned on Fed.R.Cr.P. 11, requires that before accepting a plea of guilty or nolo contendere, a court must address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. In McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), the United States Supreme Court held that a federal trial judge's failure to comply with Rule 11 was reversible error. Although the Supreme Court's McCarthy decision did not apply to state proceedings, two months later, in Boykin v. Alabama, 395 U.S. 239, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the Court imposed a similar standard on state courts. It should be noted however, that in Boykin the sentencing court undertook no examination of the defendant whatever, at the time it accepted his plea. Thus, the Supreme Court was only required to decide generally that due process requires 'the utmost solicitude of which the courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequences.' 395 U.S. at 243--244, 89 S.Ct. at 1712. The Court was not constrained to detail what inquiries would constitute an acceptable 'canvassing.'

Boykin did indicate that the court's 'canvassing' should accomplish at least two tasks: (1) assure that the defendant does not improvidently or involuntarily waive his constitutional right to jury trial, right to confront witnesses, and privilege against self-incrimination; and, (2) facilitate and deter appellate and collateral proceedings on the plea. Thus, Boykin did allude to the privilege against self-incrimination, and other constitutioanl rights. 'We feel, however, that these rights were...