Kelly v. State

• Decision Date: 05 August 1992
• Docket Number: No. 21726,21726
• Citation: 837 P.2d 416,108 Nev. 545
• Parties: George R. KELLY, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 416

837 P.2d 416

108 Nev. 545

George R. KELLY, Appellant, v. The STATE of Nevada, Respondent.

No. 21726.

Supreme Court of Nevada.

Aug. 5, 1992.

Rehearing Denied Nov. 3, 1992.

Paul A. Sherman, Carson City, for appellant.

Frankie Sue Del Papa, Atty. Gen., Kevin G. Higgins, Deputy Atty. Gen., Carson City, for respondent.

OPINION

SPRINGER, Justice:

The appellant, George Kelly ("Kelly"), was serving a fifteen-year sentence for attempted sexual assault when he filed a habeas corpus petition in federal court. In his habeas petition, Kelly included a letter, purportedly written by his trial counsel, guaranteeing him a maximum five-year sentence in exchange for pleading guilty to attempted sexual assault. Based upon this letter, Kelly was subsequently charged in state court with forgery and offering false evidence.

At trial, the State introduced evidence of Kelly's prior conviction of attempted sexual assault and the circumstances surrounding this conviction, including evidence of the specific four charges brought against Kelly, the maximum sentences they carried, Kelly's guilty plea (to attempted sexual assault), and the three charges subsequently dismissed. Kelly now contends that the district court committed prejudicial error in admitting evidence of his prior conviction and the dismissed charges. We disagree and affirm the judgment of conviction.

The Facts

Kelly was previously charged with four crimes: attempted sexual assault, sexual assault, attempted statutory sexual assault, and statutory sexual assault. All of these charges involved Kelly's alleged molestation of his child. Because Kelly had confessed to the molestation and because the felonies of sexual assault and statutory sexual assault each carry a possible life sentence, Kelly's trial counsel recommended a plea bargain. Thereafter, Kelly agreed to plead guilty to attempted sexual assault, which carries a maximum twenty-year sentence; in return, the State agreed to drop the remaining charges and to recommend a five-year sentence to the court. At no time, however, was Kelly told that he would receive a five-year sentence. In fact, Kelly was informed that although the court might adopt the State's sentencing recommendation, the judge could sentence him to a maximum of twenty years in prison. The plea agreement that Kelly signed also states that the judge has discretion to determine Kelly's sentence.

During the sentencing hearing, the State recommended a five-year sentence. ¹ The judge asked Kelly if he understood that the maximum sentence for the crime of sexual assault is twenty years, and Kelly answered, "Yes." The judge also asked if any promises other than those contained in the plea agreement had been made; Kelly answered, "No." The judge then asked if other negotiations had occurred, and Kelly responded, "No." When the judge asked Kelly what the maximum penalty could be, Kelly answered that the maximum penalty was twenty years and that the terms of sentencing were up to the judge. At no time during this hearing did Kelly state that he had been promised a five-year maximum sentence. At the conclusion of the hearing, the judge sentenced Kelly to fifteen years in prison.

Subsequently, Kelly filed a motion to withdraw his guilty plea; the district court denied this motion, and Kelly filed an appeal. In none of his pleadings did Kelly mention that he had received a five-year maximum sentence guarantee. Furthermore, at no time did Kelly question his trial counsel about breaching the promise of a five-year sentence.

Five years after he was convicted and sentenced, Kelly filed a petition for habeas corpus in the federal district court. In this petition, which Kelly signed under penalty of perjury, Kelly alleged that his guilty plea was involuntary and induced by promises from counsel. He stated that his trial counsel had guaranteed him a five-year sentence; specifically, Kelly stated that "[t]rial counsel absolutely guaranteed me that I would not receive more than five (5) years. Counsel coached me to give judge canvassing answers counsel desired given."

Kelly attached to his habeas petition a letter, purportedly written by his trial counsel, which states that she had "made a negotiation with both the Court and the State" and that "[i]n exchange for your guilty plea ... the other three charges will be dismissed and you will receive a five (5) year sentence." The letter also states the following:

A formal plea memorandum is being drawn by me and although it states in it that the Judge has the discretion to impose any sentence up to the maximum of twenty years--I want to assure you that I have already obtained the agreement of the Judge and the State that you will not be sentenced to more than five (5) years.

Kelly was subsequently charged in state court with forgery and offering false evidence. As mentioned, during the trial, the prosecutor and State's witnesses explained the circumstances of Kelly's prior conviction, including the charges brought against him, the maximum sentences they carried, his guilty plea, and the dropped charges. The court was careful to exclude any evidence that Kelly had molested his own child.

Discussion

Kelly asserts that the district court committed prejudicial error in allowing the State to introduce evidence of his prior conviction and the three dismissed charges. ² We disagree, however, and conclude that the district court did not err in determining that the evidence was relevant and not more prejudicial than probative. In addition, we conclude that the evidence falls within the scope of NRS 48.045(2).

First, the evidence was relevant. The State could hardly discuss the circumstances of Kelly's plea agreement, which relate directly to Kelly's knowledge of the forged letter and false information on the habeas petition, without bringing in evidence of the dropped charges. Two of the dropped charges carried possible life sentences, and these were the charges that Kelly sought to avoid with his plea agreement. His plea agreement simply would not make sense to a jury if the jury were only informed that he was charged with attempted sexual assault, which carries a maximum sentence of twenty years. In fact, his allegation that he was promised a maximum five-year sentence for his guilty plea might have sounded reasonable if the evidence of other charges had been precluded. It is also worth noting that an important piece of evidence in this case, the forged letter attached to Kelly's habeas petition, discusses the "other charges." The fact that the State dropped these "other charges" was ostensibly the most important part of the plea agreement at issue.

In his habeas petition, Kelly included a letter discussing a "secret deal" between his counsel, the prosecutor, and the court. In his petition, and at trial, Kelly asserted that he was promised a maximum five-year sentence, was misled by his trial counsel, and that some sort of misbehavior occurred during the plea negotiations. Thus, to determine whether Kelly's allegations had merit, the circumstances behind the plea agreement and sentencing hearing necessarily had to be explained. As the district court stated, the charges of sexual assault were germane to the plea negotiations--sexual assault is a special type of assault and authorizes a life sentence; it thus warrants a careful approach by counsel. In other words, the serious nature of the charges directly related to whether or not Kelly could have been promised a five-year maximum sentence and whether or not any "secret deal" had been made. The dropped charges also related to the reasonableness of Kelly's plea agreement. The circumstances of the plea negotiations were thus intimately related to the false allegations made by Kelly in his petition for habeas corpus. Therefore, this evidence was relevant in that it shows that there was no "secret deal," that Kelly struck the best deal he could under the circumstances, and that Kelly participated in the forgery and knew that the allegations in his habeas petition were false.

Further, we have recognized that

While Nevada's Evidence Code prohibits the use of other crimes, wrongs, or acts as evidence of an accused's character in order to prove that he acted in conformity therewith on a particular occasion, such evidence may, however, be admissible for other purposes ... where its probative value is not substantially outweighed by the danger of unfair prejudice. The decision to admit such evidence rests with the sound discretion of the trial court and will not be disturbed on appeal absent a showing that the ruling was manifestly wrong.

Brackeen v. State, 104 Nev. 547, 552, 763 P.2d 59, 63 (1988) (citations omitted); accord Kazalyn v. State, 108 Nev. 67, 825 P.2d 578 (1992). As discussed above, in the present case, the evidence of Kelly's charges and guilty plea is probative of Kelly's knowledge of the actual terms of his plea agreement and whether Kelly could reasonably have believed that he was promised a five- year maximum sentence. Although admitting evidence of prior charges always involves the danger of prejudice, the district court determined that the probative value of this evidence outweighed any potential prejudicial effect. ³ In addition, the court was careful to admonish the prosecutor not to explore the specific facts underlying the charges, and the court refused to admit a portion of the prior proceedings that would have revealed that Kelly had molested his own child. Because the evidence of Kelly's charges was relevant and probative, and because the district court's decision to admit the evidence was not manifest error, the decision should not be disturbed.

Moreover, in Brackeen, 104 Nev. at 553, 763 P.2d at 63, this court recognized that "[w]e have adopted the rule that the State is entitled to present a full and accurate account of the circumstances surrounding the commission of a crime, and such evidence is admissible even if it implicates...