Henderson v. State

• Decision Date: 13 June 2022
• Docket Number: 83584-COA
• Citation: 510 P.3d 1259 (Table)
• Parties: Glenn Bobby HENDERSON, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Court of Appeals

510 P.3d 1259 (Table)

Glenn Bobby HENDERSON, Appellant,

v.The STATE of Nevada, Respondent.

No. 83584-COA

Court of Appeals of Nevada.

FILED JUNE 13, 2022

Special Public Defender

Attorney General/Carson City

Clark County District Attorney

ORDER OF AFFIRMANCE

Henderson raises two claims on appeal: the district court abused its discretion at sentencing, and Henderson was not competent at the time of sentencing. In response, the State argues that Henderson waived his right to appeal from the sentencing proceedings in his guilty plea agreement. Henderson replies that he did not waive that right because the waiver in the guilty plea agreement is vague, the waiver does not substantially comply with NRS 174.063, and his claims could not be anticipated at the time of the waiver.

First, Henderson argues his plea agreement waived only claims challenging the "conviction" and, because it did not mention sentencing, it did not waive appeal claims regarding sentencing. The appeal waiver included in Henderson's plea agreement states that he was "unconditionally waiving [his] right to a direct appeal of this conviction, including any challenge based upon reasonable constitutional, jurisdictional or other grounds that challenge the legality of the proceedings as stated in NRS 177.015(4)." NRS 177.015(4) refers to appeals from "a final judgment," and a final judgment in a criminal case is a judgment of conviction that comports with NRS 176.105. See Sloatte v. State, 129 Nev. 219, 221-22, 298 P.3d 1170, 1171 (2013) (concluding that a judgment of conviction was unappealable where it did not meet the requirements of NRS 176.106 because it was not a final judgment). Because NRS 176.105(1)(c) requires that a judgment of conviction include the sentence, Henderson's waiver of the right to appeal his conviction necessarily includes a waiver of his right to appeal from his sentencing.

Second, Henderson argues that the waiver does not substantially comply with the language found in the model appeal waiver of NRS 174.063. "This court will enforce unique terms of the parties’ plea agreement even in cases where there has not been substantial compliance with NRS 174.063, provided that the totality of the circumstances indicates that the guilty plea was knowing, voluntary and intelligent." Sparks v. State, 121 Nev. 107, 112, 110 P.3d 486, 489 (2005). Henderson does not allege that his plea was not knowingly, voluntarily, and intelligently entered. Therefore, we conclude he failed to demonstrate the waiver was invalid for nonconformity with the model appeal waiver statute.

Finally, Henderson argues that he could not have anticipated his sentencing claims and, therefore, could not validly waive them. A waiver of the right to appeal can apply to issues that arise after the guilty plea agreement is signed so long as the denial of the right to appeal does not work a miscarriage of justice. Burns v. State, 137 Nev., Adv. Op. 50, 495 P.3d 1091, 1100 (2021).¹

Henderson's first claim on appeal is that the district court abused its discretion at sentencing by giving him a prison term rather than placing him on probation. Henderson has not demonstrated a miscarriage of justice would result if this court does not consider this claim on appeal. Therefore, we conclude the issue was waived, and we decline to address this claim.

Henderson's second claim on appeal is that he was incompetent at the time of sentencing. Henderson argues that if he were incompetent at the time of his sentencing, then the denial of his right to appeal could work a miscarriage of justice. However, Henderson makes only a bare assertion that his competency—or lack thereof—at sentencing would work a miscarriage of justice. Thus, he fails to demonstrate the waiver does not apply to this issue.

To the extent the competency issue could work a miscarriage of justice, Henderson nevertheless fails to demonstrate he is entitled to relief. Henderson claims the district court erred by failing to hold a competency hearing when it questioned Henderson's competency during sentencing. At sentencing, Henderson's statement about what occurred during the offense was markedly different than that described by the victim, a witness, and the police. After this statement, the district court discussed the differences in the facts between the parties and stated, "[Y]eah. My question is how do — does [counsel] reconcile what — the plea versus what his client has said and how do you, basically — is he competent is, I guess my question." Counsel responded that Henderson had previously been found competent and that while counsel believed Henderson "has some memories about this event that don't comport with all of the facts, [ ] he did take responsibility."

"A person may...