Little v. Warden

• Decision Date: 15 November 2001
• Docket Number: No. 35433.,35433.
• Citation: Little v. Warden, 34 P.3d 540, 117 Nev. 845 (Nev. 2001)
• Parties: Christopher LITTLE, Petitioner, v. Warden, Nevada State Prison, Jacqueline Crawford, Respondent.
• Court: Nevada Supreme Court

34 P.3d 540

117 Nev. 845

Christopher LITTLE, Petitioner, v. Warden, Nevada State Prison, Jacqueline Crawford, Respondent.

No. 35433.

Supreme Court of Nevada.

November 15, 2001.

Franny A. Forsman, Federal Public Defender, and John C. Lambrose, Deputy Federal Public Defender, Las Vegas, for Petitioner.

Frankie Sue Del Papa, Attorney General, and Victor H. Schulze II, Deputy Attorney General, Carson City, for Respondent.

Before the Court En Banc.

OPINION

PER CURIAM.

The United States District Court for the District of Nevada certified the following question for this court's determination: "Is a conviction of sexual assault infirm when it is based on a guilty plea in which the defendant was advised of the mandatory minimum sentence but was not advised that the crime was nonprobational?" We conclude that a defendant must be aware that his offense is nonprobational prior to entering his guilty plea because it is a direct consequence arising from the plea. However, in so concluding, we emphasize that in considering whether a particular defendant was aware that he was ineligible for probation, we need not and do not focus on "talismanic phrases." Rather, we review the entire record and consider the totality of the facts and circumstances surrounding the plea in order to ensure that a defendant was aware that his offense was nonprobational.

FACTS

The relevant legal and procedural circumstances of this case are not in dispute. In November 1990, petitioner Christopher Little pleaded guilty to two counts of sexual assault on a minor under fourteen years of age.¹ Specifically, Little pleaded guilty to count I, inserting his penis inside the vagina of his nine-year-old daughter, and to count IV, forcing his eleven-year-old son to insert his son's penis inside his nine-year-old daughter's vagina. In exchange for his guilty plea, the State moved to dismiss four other counts against Little.

After a lengthy plea canvass, the district court sentenced Little to serve two consecutive terms of life in prison with the possibility of parole after ten years. Little did not file a direct appeal. However, Little subsequently filed a post-conviction petition for a writ of habeas corpus in 1991 and a second post-conviction petition in 1995. The district court denied the petitions. This court affirmed the orders of the district court.² Thereafter, Little filed a proper person petition for an extraordinary writ challenging the validity of his guilty plea, which this court denied.³

On July 8, 1998, Little filed a post-conviction petition for a writ of habeas corpus in federal district court. In the petition, he argued that his right to equal protection had been violated because this court treated him differently than other persons convicted of sexual assault by failing to apply its existing case law to him. Specifically, Little contended that this court disregarded its holdings in Meyer v. State⁴ and Aswegan v. State.⁵ These decisions hold that a district court commits manifest error when it accepts a guilty plea to a nonprobational offense without advising the defendant on the record that the defendant is ineligible for probation.

DISCUSSION

We begin, as we have before, by reaffirming the solemn nature of the oral plea canvass.⁶ When the district court accepts a defendant's guilty plea, it must act with "utmost solicitude" to ensure that a defendant has a full understanding of both the nature of the charges and the direct consequences arising from a plea of guilty.⁷ A consequence is deemed "direct" if it has "a definite, immediate and largely automatic effect on the range of the defendant's punishment."⁸

With the glaring exception of the penalty of death, there is perhaps no consequence more direct and immediate on the defendant's range of punishment than ineligibility for probation.⁹ After all, ineligibility for probation means incarceration; it means that there is not even a remote possibility that the district court will exercise its discretion and suspend the execution of sentence. The loss of the possibility of probation therefore becomes "an inseparable ingredient of the punishment imposed. Its effect is so powerful that it translates the term imposed by the sentencing judge into a mandate of actual imprisonment."¹⁰

Because we conclude that ineligibility for probation is a direct consequence arising from a guilty plea,¹¹ we reaffirm our prior case law to the extent that it holds that a defendant must be aware that an offense is nonprobational prior to entry of his plea.¹² However, we overrule our prior case law to the extent that it holds that the district court's lack of advisement on the record about nonprobationality is per se manifest error.

In Meyer v. State, over two decades ago, this court held that a district court's failure to advise that probation was not available created a "fatal defect" and "manifest injustice" that could only be corrected by setting aside the conviction.¹³ Over the years and without further analysis, this court reaffirmed the holding in Meyer. In Heimrich, although we declined to apply Meyer retroactively, we noted that if Meyer had applied, it would warrant reversal because the district court accepted a defendant's guilty plea without advising him of the nonprobational nature of his offense.¹⁴ Similarly, in Aswegan, we concluded that a guilty plea was not voluntary and intelligent because of "[t]he manifest injustice created by the district court's failure to inform [the defendant] that probation was not a possibility in his case."¹⁵

Riker v. State,¹⁶ however, we implicitly modified the principle espoused in Meyer and its progeny and applied the totality of the circumstances analysis that we adopted in Bryant v.. State.¹⁷ In fact, in Riker, we held that the district court's failure to advise a defendant about the nonprobational nature of an offense was not manifest error, a fatal defect, or otherwise reversible.¹⁸ In so holding, we reasoned that where the record reveals that a defendant knew that he was ineligible for probation, the mere fact that he was not explicitly advised of that fact by the district court did not vitiate his otherwise valid plea.¹⁹

We reiterated this proposition a few years later in Skinner v. State.²⁰ In Skinner, we held that, in considering whether the defendant was advised that probation was unavailable, the court is not limited to the record of the plea canvass; rather, an advisement is sufficient if it appears in the guilty plea memorandum, in a pretrial hearing transcript, or elsewhere in the record.²¹

To the extent that Meyer, Heimrich, and Aswegan support a contrary proposition—that the district court's lack of advisement on the record about nonprobationality is "manifest error," a "fatal defect," or otherwise reversible as a matter of law—they are hereby overruled. We modify Meyer and its progeny in this regard—the district court's failure to advise a defendant that he is ineligible for probation is error, but it is not always reversible error. Where it appears, in examining the totality of the circumstances, that a defendant knew that probation was not available at the time of the entry of the guilty plea, we will not vitiate an otherwise valid guilty plea.²²

Our holding is grounded in our longstanding belief that, in determining whether a defendant entered a guilty plea knowingly and voluntarily, a reviewing court should carefully consider the totality of the circumstances.²³ "[W]hile we believe trial courts should in all circumstances conduct sufficient and thorough plea canvasses, ... we cannot be constrained to look only to the technical sufficiency of a plea canvass to determine whether a plea" is invalid.²⁴ Rather, our inquiry focuses on whether a particular defendant actually understood the direct consequences of his guilty plea.²⁵ This approach does not intrude on the defendant's due process rights because the circumstances surrounding the guilty plea are reviewed to ensure that the defendant knew the direct consequences arising therefrom.

Because the totality of the circumstances inquiry is essentially factual in nature, the issue of whether a defendant was aware that probation was not available when the defendant entered the plea should be reviewed in the first instance in the district court.²⁶ We will not review this factual matter on direct appeal from the judgment of conviction unless the claim was raised and decided in the context of a pre-judgment motion to withdraw a plea. Otherwise, a defendant must raise a claim in the district court that a guilty plea was infirm because the defendant was not aware that probation was unavailable, either by bringing a post-conviction motion to withdraw the guilty plea or by initiating a post-conviction habeas proceeding.²⁷ The district court may reject this claim of constitutional infirmity without conducting an evidentiary hearing in two instances.

In the first instance, the district court may decline to conduct an evidentiary hearing if it finds that the defendant's claim is belied by the record.²⁸ In determining whether a defendant's claim is belied by the record, several considerations are relevant, although our discussion is not exhaustive. First, a defendant may have been advised in the plea memorandum that the offense was nonprobational.²⁹ Second, a defendant or his counsel may have made statements on the record at the arraignment, sentencing hearing, or other proceeding that demonstrate that the defendant pleaded guilty knowing that he would be serving actual prison time.³⁰ Third, the defendant's awareness of the unavailability of probation or the certainty of an actual prison term may be evident from the plea negotiations. For example, the district court may find that a claim that the defendant did not know the offense was nonprobational is belied by the fact that the defendant agreed to plea negotiations requiring a prison term for a definite, specific period of years, or the...